Amicus Submission: Wang v ACT Health

Conclusion

100.     While elements of these issues are unsettled, arguably the correct interpretation of s 8 of the ACT Discrimination Act is that once indirect discrimination is prima facie found, as is the case in this matter, the onus of proving reasonableness is on the Respondent.

101.     The fact that the Respondent is a Public Authority is a relevant factor in determining the level of reasonableness to be determined. Part of the Respondent’s onus of proving reasonableness includes showing how they have complied with their obligations under the s.40B of the Human Rights Act to act and make decisions in accordance with human rights. This should include some documentation of how the procedural obligation to take into account human rights occurred at the time the policy was made. In determining this question, the Tribunal need not necessarily make a definitive decision about the appropriateness of the Respondent’s Policy.

102.     Other factors may also be relevant, but this submission focuses on the human rights law precedents in this area.

103.     In terms of remedies, whether for the already established direct discrimination or if indirect discrimination is found unreasonable, the Tribunal also need not impose a new Policy or set of requirements on the Respondent. It may instead oblige the Respondent to develop a new Policy based on human rights (and other) considerations.

Dr Helen Watchirs

ACT Human Rights and Discrimination Commissioner
12 June 2015

[1] Wang v ACT (Discrimination) [2015] ACAT 5
[2] Ibid, [1] to [7]
[3] Ibid [52] – [53]
[4] Ibid [124]
[5] (1997) 80 FCR 78
[6] Ibid, 111 per Sackville J
[7] [1989] FCA 342 [51]
[8] (Administrative Review) [2012] ACAT 67
[9] (2010) 244 FLR 158.
[10] [2011] HCA 11, [51]
[11] [2012] ACAT 67, [71-72]
[12] (2010) 25 VR 436
[13] Re Application for Bail by Islam [2010] ACTSC 147
[14] [1991] HCA 49
[15] Hunyor, Jonathan  “Skin-deep: Proof and Inferences of Racial Discrimination in Employment” [2003] Sydney Law Review 24. Accessed online at http://www5.austlii.edu.au/au/journals/SydLRev/2003/24.html
[16] [1989] FCA 342 [51]
[17] (1991) 103 ALR 513, 559-560. His Honour stated “I should note that it was common ground between the parties that the onus was on the Corporation to produce evidence to show that the relevant requirements or conditions were reasonable. However, I cannot accept that the concession of the Corporation was correctly made. A finding that the requirement or condition imposed was not reasonable is an essential element in proving a breach of s.17(5). A complainant has the onus of proving the element contained in par.(c).”
[18] Exceptions are granted by the Discrimination Commissioner under Part 10, and exceptions are provided throughout Part 4.
[19] ACT Hansard, 17 October 1991, 3891
[20] Human Rights Committee, General Comment No 18: Non-discrimination, 37th Session U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994).
[21] Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10 at [88]
[22] European Union Agency for Fundamental Rights, Handbook on European Non-Discrimination Law, 2010, 123 to 124 citing Racial Equality Directive (Article 8), Employment Equality Directive (Article 10), Gender Equality Directive (Recast) (Article 19), Gender Goods and Services Directive (Article 9). Case-law of the European Committee of Social Rights: SUD Travail Affaires Sociales v. France (Complaint No. 24/2004), 8 November 2005, and Mental Disability Advocacy Centre (MDAC) v. Bulgaria (Complaint No. 41/2007), 3 June 2008.
[23] Based on the High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336
[24] Above n.15
[25] Loretta De Plevitz, “Briginshaw Standard of Proof in Anti-Discrimination Law: Pointing with a Wavering Finger” (2003) 27 Melbourne University Law Review 308. Cited by ACAT in Kovac v Australian Croatian Club Ltd [2014] ACAT 41
[26] Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1, 8.
[27] [2015] NSWCATAD 27
[28] [2008] FCAFC 69 [at 55]
[29] [2015] NSWCATAD 27, [109]
[30] [2014] ACAT 41, [103]
[31] At 263.
[32] At page 6.
[33] See for example Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441 at 455
[34] At 365
[35] [1998] 2 NZLR 218
[36] Ibid, 235
[37] (1996) 137 ALR 653
[38][1998] 2 NZLR 218, 240
[39] Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10
[40] Ibid, [98]
[41] 2004 SCC 4, [31]
[42] [2011] VSCA 266, [48]
[43] Ibid, [48]
[44] Caripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 at [98]-[99]
[45] [2013] VCAT 1869
[46] The Victorian Equal Opportunity and Human Rights Commission in its submission to the VCAT submitted that the Tribunal should have regard to the Respondent’s obligations as a public authority in determining whether there has been unfavourable treatment or a disadvantage to the Applicant, and whether the Respondent acted in a way that was ‘reasonable’ in accordance with its obligations under the EOA 2010 and EOA 1995.
[47] [2014] VSC 585
[48] Ibid, [39]
[49] In the most recent matter of RW v State of Victoria [2015] VCAT 266, VCAT further clarified that the Charter matters have to be raised as part of the discrimination proceedings.
[50] [2014] ACTSC 26 at paragraph 27
[51] (Residential Tenancies) [2015] ACAT 31
[52] This discussion is drawn from Katharine G. Young, Constituting Economic and Social Rights, 2012, Oxford University Press.
[53] See for example Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, 87 (Sheppard J)
[54] 2004 6 SA 505
[55] Which appears to be favoured by the US courts – see eg, City of Chicago v Shalala  [1999] USCA7 490; 189 F.3d 598 (7th Cir 1999). Essentially, the court only looked at the rational connection question, ie, if there was a rational connection between the government’s immigration policy and its welfare policy of encouraging the self-sufficiency of immigrants.
[56] At [67]
[57] At [59] and [62]
[58]  Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], 1 BVL 1/09, 1 BVL 3/09, 1 BVL 4/09 of 9 Feb. 2010 (Hartz IV).  English translation at: http://www.bverfg.de/entscheidungen/ls20100209_1bvl000109en.html. This discussion drawn from Lucy A Williams, ‘The Role of Courts in the Quantitative Implementation of Social and Economic Rights: A Comparative Study’, 3 Constitutional Court Review 2010 [South Africa] (2011) 141.
[59] See for example Kiefel J in Sharma v Legal Aid Queen [2001] FCA 1699, [60: ‘…statistical evidence may be able to convey something about the likelihood of people not being advanced because of factors such as race or gender.’
[60] See for example policies under the Corrections Management Act 2007
[61] Patrick’s Case [2011] VSC 327 at [311].
[62] At [185]
[63] Cora Chan, ‘The Burden of Proof Under the Human Rights Act’ (2014) 19:1 Judicial Review 46
[64] [2011] UKSC 45
[65] Ibid [44]
[66] This terminology was used in Momcilovic (2010) 25 VR 436 at [146], noting that this decision was subject to High Court appeal, although not on this point. See also Re an Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415 at [147] where Warren CJ suggested human rights are guaranteed unless the party seeking to limit them can justify the rights being limited according to the statutory criteria contained in s7(2) of the Charter, which is similar to s 28 of the HR Act.