Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Sydney Local Health District (Department of Forensic Medicine) v ANU (EOD) [2013] NSWADTAP 47
• Hearing dates: 22 July 2013
• Decision date: 23 October 2013
• Jurisdiction: Appeal Panel - Internal
• Before: Judge K P O'Connor, President; R Wright SC, Judicial Member; Z Antonios, Non-judicial Member

Decision

Interlocutory appeal dismissed

• Catchwords: EQUAL OPPORTUNITY - Complaint of unlawful discrimination because of disability of relative who was deceased at time of conduct in issue - respondent's application to dismiss for want of jurisdiction refused by Tribunal - interlocutory appeal - statutory interpretation - meaning of 'relative' not confined to a person who is alive at the time of the discriminatory conduct - 'disability' may refer to a condition affecting the body of a dead person - appeal dismissed
• Legislation Cited: Anti-Discrimination (Amendment) Bill 1994; Anti-Discrimination Act 1977; Corporations Act 2001; Disability Discrimination Act 1992 (Cth); Interpretation Act 1987
• Cases Cited: ANU v State of New South Wales (Sydney Local Health District) [2013] NSWADT 38; CUNA Mutual Group Ltd v Bryant (2000) 102 FCR 270; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Re C and the Adoption of Children Act (1992) 27 NSWLR 388; Sydney Local Health Network v QY and QZ [2011] NSWCA 412
• Category: Principal judgment
• Parties: Sydney Local Health District (Department of Forensic Medicine) (Appellant); ANU (Respondent)
• Representation: Counsel; D Thomas (Appellant); Dr C S Ward (Respondent; Curwoods Lawyers (Appellant); HALC Inc. (Respondent)
• File Number(s): 139012

Decision under appeal

• Citation: ANU v State of NSW (Sydney Local Health District) [2013] NSWADT 38
• Date of Decision: 2013-02-15 00:00:00
• Before: Equal Opportunity Division
• File Number(s): 121018

reasons for decision

1 Under the Anti-Discrimination Act 1977 (NSW) (ADA) an 'aggrieved person' may make a complaint of unlawful disability discrimination in connection with their own disability or in connection with 'the disability of a relative or associate of the aggrieved person' (see s 49B(1)(a)).

2 This is the second case to reach the Tribunal in recent years raising the issue of whether post mortem procedures followed by the Department of Forensic Medicine of the Sydney Local Health District (SLHD) infringe the ADA in the way they deal with the bodies of persons who die HIV positive. The other case is Sydney Local Health Network v QY and QZ [2011] NSWCA 412 (QY), to which we will return later in these reasons.

3 In this case a mother, Ms 'ANU', gave consent for her son's body to be the subject of a post mortem. He had died on 19 August 2010. But she later withdrew the consent when she learnt that it would not be reconstructed after the post mortem examination.

4 She made a complaint under the ADA to the President of the Anti-Discrimination Board that SLHD had unlawfully discriminated against her on the ground of disability by refusing to provide her with a service or in the terms on which it provided the service to her, in contravention of s 49M(1)(a) or (b) of the ADA because of her son's HIV positive status. It was alleged that SLHD's conduct amounted to direct disability discrimination within s 49B(1)(a) of the ADA.

5 SLHD applied to have the complaint summarily dismissed under s 102 and s 92(1)(a)(ii) of the ADA. The Tribunal (Hennessy DP) refused that application - see ANU v State of New South Wales (Sydney Local Health District) [2013] NSWADT 38 at [55]; and SLHD appealed. As the appeal was an interlocutory one, it required leave, which was granted. The grant of leave was confined to the issues raised by the first three grounds of the notice of appeal:

Did the Deputy President err in failing to conclude that, at the time of the alleged discrimination (which is alleged to have occurred after the deceased died):

(1) the deceased was not a "relative" of Ms ANU, within the meaning of ss 4(1) and 49B of the ADA;

(2) the deceased was not a "person" within the meaning of "relative" in s 4(1) of the ADA or otherwise a "person" for the purposes of ss 4(1), 49A and 49B of the ADA;

(3) the deceased did not have a "disability" within the meaning of that word in ss 4(1), 49A, 49B and 49M of the ADA.

6 These three grounds are interrelated. The definitions of "relative" and "disability" in s 4(1) of the ADA both employ the word "person", as do the substantive provisions found in ss 49M and 49B. In addition, Young JA in QY has expressed the view that the question of whether a dead person is a "person" under the ADA should be answered "No" (at [128] and see generally [110] to [128]).

7 Accordingly, it appears to the Panel to be appropriate to look first at the construction of the various provisions which are relevant to this matter and which employ the word "person". Next we shall consider whether the deceased was a "relative" of Ms ANU as defined in s 4(1) and within the meaning of s 49B. Finally, the Panel will address the question of whether the deceased had a "disability" as defined in s 4(1) and within the meaning of ss 49A, 49B and 49M.

8 There is one other matter. The Tribunal referred to the general principles governing the consideration of summary dismissal applications (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, and related cases) and how they are applied in the equal opportunity jurisdiction of the Tribunal. As the reasons which follow deal with the questions raised, we will not consider one aspect of the appellant's submissions, i.e. the challenge to the Tribunal's adoption of the General Steel principles in declining to dispose of a question of law going to jurisdiction where there are agreed facts capable of disposing of the question.

9 Before dealing with the three issues the subject of the grant of leave, we will set out the statutory provisions which are directly relevant to this matter.

Relevant Statutory Provisions

10 Each of the questions the subject of this appeal turns upon the proper construction of the ADA. The provisions which are directly engaged in the circumstances of this case are as follows.

11 Section 49M of the ADA renders it unlawful to discriminate against a person on the ground of disability and provides:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

12 Section 49B of the ADA establishes what constitutes discrimination on the ground of disability and provided (at the relevant time) as follows:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of 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 in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

13 "Relative" is defined in s 4(1) of the ADA in the following way:

'relative' of a person means any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person.

14 "Disability" is defined in s 4(1) of the ADA to mean:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

15 The concept of disability is relevantly expanded in s 49A of the ADA as follows:

A reference in this Part [which includes ss 49B and 49M] to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

Was the Deceased a "person" for relevant purposes?

16 The answer to the question whether the deceased was a "person" within the meaning of that word in ss 4(1), 49A and 49B turns upon the proper construction of those sections of the ADA.

17 There is no definition of "person" in the ADA but this is not surprising given that it is defined as one of the "commonly used words and expressions" in s 21(1) of the Interpretation Act 1987 (NSW). That definition is:

'person' includes an individual, a corporation and a body corporate or politic.

18 "Individual" is defined in the same subsection of the Interpretation Act as meaning "a natural person".

19 Section 5 of the Interpretation Act also provides in subss (2), (3) and (4):

(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

(3) Wherever appropriate, this Act applies to a portion of an Act or instrument in the same way as it applies to the whole of an Act or instrument.

(4) Nothing in this Act excludes the application to an Act or instrument of a rule of construction applicable to it and not inconsistent with this Act.

20 Accordingly, the term "person" as used in the ADA will include natural persons, corporations and bodies corporate and politic, except to the extent that the contrary intention appears in the ADA. If appropriate, this inclusive definition of "person" will apply to a portion or section of the ADA in the same way as it applies to the whole of the ADA. Furthermore, other rules of construction can be applied, provided they are not inconsistent with the Interpretation Act.

21 The question of whether the deceased was a "person" within the meaning of ss 4(1), 49A and 49B raises the issue of how the ADA applies in respect of persons who are dead. Some general observations can be made. It is a characteristic of natural persons as well as artificial persons, such as corporations or bodies politic, that once they have come into being they can also cease to be. In the case of natural persons, this is a certainty and occurs on death (putting aside for present purposes philosophical and theological questions). In the case of corporations incorporated under the Corporations Act 2001 (Cth) and its predecessors, it occurs on deregistration but is not a certainty. In the case of other bodies corporate and bodies politic it occurs when they no longer function and meet the criteria for legal existence.

22 Where an Act establishes that a "person" must do something or refrain from doing something or has a right or entitlement, this would naturally be taken as applying only to those persons capable of complying with the law or of taking advantage of the right or entitlement at the relevant time. In the case of a natural person, this would be while that person is alive. For an artificial person, it would be while the corporation, body corporate or body politic is in existence and legally capable of complying or taking advantage. To take a different approach would involve an element of absurdity.

23 That is not to say, however, that a statute cannot operate by reference to, or in respect of, a natural person who is no longer alive, a corporation that has been deregistered or a body politic that no longer exits. For example, a statute could provide that all living children of any person who died while on active service in the Korean War would be entitled to receive a memorial badge. Similarly, an Act could confer on all unpaid creditors of a deregistered corporation a right of action against former directors of that corporation for losses suffered as a result of certain conduct of the corporation. An essential element that is required to be satisfied in those two examples is that there should be a natural person, now dead, who was alive during some period of active service in the Korean War and that there be a corporation, now deregistered, which had been incorporated and not deregistered when the relevant conduct occurred. Statues are capable of operating, and commonly do operate, by reference to or in respect of "persons" who are dead or no longer in existence.

24 Two additional general points should also be noted. First, as a matter of ordinary English usage, the description "natural person" can only be applied to an individual who has been, is or will be alive (putting aside for present purposes fictional characters who are unlikely to be directly relevant to legal issues of this nature). Likewise, "corporation", "body corporate" or "body politic" can only be applied to an artificial person which has come into, is in or will come into existence in a manner recognised by law.

25 Secondly, for the purposes of construing a provision that employs the word "person", it will be important to identify both:

(1) the manner in which the provision applies in respect of the "person" in question; and

(2) the periods or points of time which are relevant for the application of the statutory provision.

26 In the present case, in order to understand how the word "person" is used in ss 4(1), 49A and 49B and whether it can refer to the deceased it is necessary to look also at s 49M. Section 49M(1) is the substantive provision relied upon by the appellant and it defines the field in which ss 4(1), 49A and 49B operate in this case.

27 In addition, in addressing the first ground of appeal it is helpful to identify in the context of ss 49M and 49B the ways in which the drafter of the legislation has used the one word "person" to refer to a variety ... entities which are involved in or associated with the discriminatory conduct.

Section 49M

28 As far as s 49M is concerned, there are two entities identified in subs (1) using the word "person". The first is "a person who provides, for payment or not, goods or services". This person is the "perpetrator", if one uses the terminology of s 49B(1). The second is the "person" who is refused services or to whom services are provided on certain terms, the "aggrieved person" under s 49B(1).

29 The language, context and scope and purpose of the ADA all provide good reasons to construe "person" in the phrase "a person who provides ... goods or services" as referring to an individual, a corporation or a body corporate or politic, in accordance with s 21(1) of the Interpretation Act. All of those types of persons can and frequently do provide goods or services. In doing so, each of those types of persons may discriminate against another person. There does not appear to be any justifiable reason to distinguish between discrimination by a provider of goods or services who is a natural person and discrimination by such a provider which is a corporation or a body politic. Given the vice to which the section was directed and the other provisions of the ADA, it is most unlikely the Parliament intended to exempt corporations or bodies corporate or politic from the operation of this legislation.

30 It can be noted that although paragraph 49M(1)(b) identifies one of the forms of unlawful discrimination as being: "in the terms on which he or she provides the person with those goods or services" (underlining added), the use of the masculine and feminine pronouns, "he" and "she", does not have the consequence that the "person" being referred to must be a natural person, that is, a person who is either male or female. Section 8(a) of the Interpretation Act provides:

In any Act or instrument:

(a) a word or expression that indicates one or more particular genders shall be taken to indicate every other gender,

31 Thus, although the masculine and feminine pronouns are used, those words should be taken to indicate every other gender, namely masculine, feminine and neuter. Accordingly, the word "person" as it first appears in s 49M, referring to the perpetrator, should be taken to refer to a natural person, a corporation or a body corporate or politic.

32 The terms in which s 49M(2) is expressed do not suggest that "person" when used in respect of the perpetrator should be given any more restricted meaning.

33 Further, as s 49M refers to the perpetrator as "a person who provides", the natural and grammatical implication is that the "person" must have been in existence and at least capable of performing acts of providing at the relevant time, namely the time when the alleged discrimination occurred. Consequently, if a natural person, the perpetrator must have been alive at the time of the discrimination and, if an artificial person, the perpetrator must have been legally in existence at that time.

34 As to the second use of "person" in s 49M(1), this identifies the person discriminated against, the person aggrieved, not the perpetrator. In s 49M(1) this "person" is identified as one who is discriminated against by the perpetrator "refusing to provide the person with those goods or services" or "in the terms on which he or she provides the person with those goods or services."

35 Nothing in the words of s 49M(1) (putting aside for the moment the implications flowing from the word "disability" in the light of its definition in s 4(1)), gives any grounds for reading down those uses of the word "person" to natural persons only. Corporations and bodies corporate and politic are equally capable of being supplied with goods or services as are natural persons. Artificial persons as well as natural persons can, depending on the definition of "disability" (which is dealt with separately below), be said to have a disability. Given, however, that the "person" must be refused goods or services or supplied with goods or services on terms, this forcefully suggests that that person must be capable of seeking and obtaining the provision of goods or services at the time of the discriminatory conduct falling within the section. In other words, the second "person" referred to in s 49M(1) must be alive or legally in existence at the time of the relevant conduct.

36 Subsection 49M(2) contains the words "Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability ...". The phrase "the person's disability" indicates that it may be necessary to read down "person" in this context to those persons who are capable of having a relevant disability. Whether or not such a reading down is necessary does not turn upon the wording of s 49M but rather upon the meaning of "disability" as defined in s 4(1).

37 Accordingly, the terms and application of s 49M do not require that either the perpetrator or the person aggrieved, both referred to by the word "person" in that section, should be construed as limited to natural persons and excluding corporations and bodies corporate and politic. The terms and application of s 49M do, however, indicate that both the perpetrator and the person aggrieved must be in existence at the time of the discriminating conduct. It follows from this conclusion that the deceased would not have fallen within the meaning of "person" used in s 49M to refer to either the perpetrator or the aggrieved person at the time of the alleged discrimination by the refusal of services or the provision of services on terms in the present case.

38 For the sake of completeness it can be noted that if an aggrieved person dies after the discriminatory conduct but before the complaint is finally determined, s 93 of the ADA provides that the complaint survives and the legal personal representative of the complainant may continue the complaint including any referral, review or appeal. The estate of the complainant is entitled to the benefit of any monetary sum order to be paid in respect of the complaint.

39 In light of the context provided by s 49M it is now necessary to consider the construction of s 49B and the role that the word "person" plays in that section and in related, definitional sections.

Section 49B

40 Unlike s 49M(1), s 49B identifies 3 potentially relevant entities: the perpetrator; the aggrieved person; and "a relative or associate of the aggrieved person". It is appropriate to look at each of these 3 potentially relevant persons in turn.

41 As to the perpetrator, s 49B(1) provided that "A person ("the perpetrator") discriminates ... on the ground of disability if, on the ground of disability of the aggrieved person or the disability of a relative or associate of the aggrieved person, the perpetrator ... treats [the aggrieved person in a certain way] ... or requires [the aggrieved person to do certain things]".

42 Once again, there is nothing in this wording that indicates that the word "person" in so far as it is used in respect of the perpetrator should not include natural persons, corporations and bodies corporate and politic. The use of the verbs "discriminates", "treats" and "requires" in the present tense indicates that the perpetrator must be in existence and capable of so acting at the time of the alleged discrimination. Nothing in s 49B(2) to (4) suggests to the contrary.

43 As to the aggrieved person, s 49B(1) states that the perpetrator "discriminates against another person ("the aggrieved person") on the ground of 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 treats [the aggrieved person in a certain way] ... or requires [the aggrieved person to do certain things]".

44 Two things follow from this. First, the aggrieved person must be capable of having a "disability" within the meaning of the ADA and must be capable of having a "relative or associate" within the meaning of those words in the statute. Depending on the meanings of those words, "person" in so far as it applies to the aggrieved person may be limited to natural persons. Secondly, the aggrieved person must be in existence at the time of the alleged discrimination so as to be capable of being treated in a certain way or, more importantly, so as to be capable of being required to do certain things at the relevant time. The other subsections of s 49B, which use the present tense in phrases such as "persons who have that disability", "a person who has a disability" and elsewhere, confirm the conclusion that the aggrieved person must be in existence, that is, alive if a natural person, at the time of the alleged discrimination.

45 For these reasons, unless there is some additional provision in the ADA or principle of law which effectively extends the operation of ss 49M and 49B to a dead person as the person aggrieved, it can be concluded that the deceased would not fall within the meaning of "person" when used to designate the perpetrator or the person aggrieved in those sections because those persons were required to be in existence and capable of acting or being required to act in the manner specified in those sections at the relevant time or times. No additional provision giving ss 49M and 49B an extended operation in respect of a dead person, as the aggrieved person, was brought to the Panel's attention in submissions. Nor does the Panel believe that any provision of the ADA has that effect.

46 Furthermore, it can be noted here that a case involving discrimination alleged to have occurred after the death of the aggrieved person has arisen under the Disability Discrimination Act 1992 (Cth) in CUNA Mutual Group Ltd v Bryant (2000) 102 FCR 270. Notwithstanding the opening words of the judgment at [1]: "This proceeding raises the forensically fascinating issue of the possibility of discrimination against a person already dead", no assistance can be gained from this decision because the "forensically fascinating issue" was not decided. The case relevantly turned upon whether s 69(1)(c) of the Commonwealth Act authorised the dead person's brother, who was the administrator of his estate, and his sister, who together with the brother were the beneficiaries of the estate, to lodge a complaint on his behalf. Branson J held that s 69(1)(c) did not. As a result, it was unnecessary for her Honour to decide whether the alleged perpetrator's conduct involved discrimination against a person who was dead at the time of the alleged discrimination - see [51].

47 The third type of person referred to in s 49B is the "relative" or the "associate". The conclusions reached above in relation to the meaning of "person" when used to designate the perpetrator and the person aggrieved do not determine or have any necessary bearing on the question of what the words "relative" and "associate" in s 49B refer to or the content of the word "person" in the definitions of "relative" and "associate" in s 4(1) of the ADA.

48 An appropriate understanding of the words "relative" and "associate" in s 49B cannot be attained without having regard to their definitions in s 4(1) of the ADA. Accordingly, it is necessary to turn to consider the definitions of "relative" and "associate" in s 4(1) of the ADA.

Associate

49 In QY, the Court of Appeal considered the question whether a dead person could be an "associate" within the definition of that term in s 4(1) of the ADA. That case was similar to, but not the same as, the present. In that case, the deceased was HIV positive when he died. After a post mortem examination, Sydney Local Health Network's Department of Forensic Medicine refused to reconstruct the deceased's body, because of the deceased's HIV status, before returning it to Ms QY, a long term friend of the deceased, and Mr QZ, the deceased's homosexual life partner. Mr QZ and Ms QY claimed that they were associates of the deceased who were treated less favourably than in not materially different circumstances to the way the Department would treat a person who did not have an associate who has the same disability as the deceased, in contravention of s 49M of the ADA, read with s 49B(1)(a).

50 It was not in dispute in that case that neither Ms QY nor Mr QZ was a "relative" of the deceased, as the definition of that term in s 4(1) stood at the relevant time.

51 The Court of Appeal's decision depended, therefore, upon whether a dead person could be an "associate" of an aggrieved person for the purposes of s 49B(1)(a) of the ADA in light of the definition of "associate" in s 4(1). In that regard, it was held by Campbell JA (see eg at [2]) and by Young JA (see eg at [145]) (Macfarlan JA agreeing at [75] and [76]) that an "associate" within the meaning of ss 4(1) and 49B(1)(a) of the ADA must be a person who was living at the time of the alleged discrimination. A person who was dead could not be an "associate" within s 49B and similar provisions of the ADA in light of the specific phrasing of the definition in s 4(1) which required there to be a subsisting association at the relevant time.

52 That decision has no direct application in the present case. It is accepted that the deceased in this case was not an "associate" of Ms ANU at the time of the discrimination alleged because he was not alive and thus could not satisfy the requirements of the definition in s 4(1).

Relative

53 Although in QY the question of whether a dead person could be a "relative" within the definition of that term in s 4(1) was touched upon, the Court of Appeal did not decide, nor was it called upon to decide, it.

54 In addition, although not necessary for the decision in QY, their Honours did make some observations on whether a "person" as that word was used in the ADA included a dead person. Campbell JA's conclusion was that he was "not persuaded that it is only a living person who can be a 'person' within the meaning" of the ADA (at [2]).

55 Macfarlan JA said at [77]:

As this conclusion [as to the meaning of "associate"] is sufficient to dispose of the proceeding on appeal, I do not consider it appropriate to express a view on the second issue dealt with by Young JA, namely whether a deceased person can be a "person" under the Act. For the reasons that Campbell JA gives, this is an issue of some complexity, which may be resolved in different ways depending upon the context in which it occurs.

56 Young JA dealt with the issue at [110] to [128] and concluded that the question of whether a dead person is a "person" under the ADA should be answered "No" (at [128]). In addition to being obiter dicta, his Honour's comments are focused more upon the issues of whether anti-discrimination legislation is primarily concerned with protecting living persons against discrimination rather than dead persons and the need for clear words to extend the operation of such legislation to protect relatives and associates in respect of post mortem discrimination - see generally [125] - [128].

57 As has already been noted above, the Court of Appeal was not called upon to consider in detail the definition of "relative" in s 4(1) of the ADA and consequently, the Panel must consider this matter for itself.

58 The definition of "relative" in s 4(1) states: "'relative' of a person means any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person".

59 In this definition, "person" is used to refer to both parties to the relationship which leads to one being the "relative" of the other. Given the nature of the relationship required between the two persons, namely, blood, marriage, affinity, adoption or a de facto relationship, it can only be the case that the word "person", whichever side of the relationship is being referred to, is to be construed as referring to a natural person, not a corporation or body corporate or politic.

60 The next observation that can be made is that the use in the definition of the verb in the present tense in "is related" indicates that the relationship must exist at the relevant time. The relevant time at which the relationship must exist, in the case of discrimination under s 49M and s 49B, is the time when the discrimination occurs. This latter conclusion follows from the use of the present tense in the expression "a person ... who does not have such a relative or associate who has that disability" in both s 49B(1)(a) and (b) and the use of the present tense in s 49M.

61 It should also be observed that there are two types of relationships included in the definition of "relative" in s 4(1). One type is those relationships that come, or can be brought, to an end. These are marriage, relationships of affinity and de facto relationships. The traditional marriage vow establishes that the marriage is "until death us do part", and the marriage relationship ends on death of one of the parties. This is demonstrated by the fact that once one party to a marriage dies, the other can remarry without committing bigamy. Further, once a married couple is divorced, their marriage is dissolved and they are no longer married. A relationship of affinity, which arises as a consequence of marriage, will also cease when the marriage comes to an end - as to relationships of affinity see Re C and the Adoption of Children Act (1992) 27 NSWLR 388 at 389. Similarly, a de facto relationship ends when the parties to it cease to live as husband and wife in a bona fide domestic relationship. In the case of this type of relationship, death of one party will also necessarily end the relationship.

62 The other type of relationship referred to in the definition of "relative" in s 4(1) is different in that these other relationships cannot be terminated and continue notwithstanding the death of one of the parties. These are blood relationships and relationships by adoption (unless the relevant law permitted adoptions to be terminated). For example, Queen Victoria is and will always remain King Edward VII's mother even though she is dead.

63 Thus, a person can be said to be related to another person who is dead if it is a blood relationship or a relationship by adoption. By way of contrast, a person cannot be married to, related by affinity to or in a de facto relationship with, a dead person.

64 As has already been noted above, the present tense is used in the definition of "relative". As a consequence, the relationship relied upon to establish that the person in question is a "relative" must be in existence at the time the definition is to be applied, which is the time of the discrimination in question.

65 Where the word "person" is used to define "relative" by reference to "any person to whom the [other] person is related by ... marriage, affinity ... or the de facto partner of the person", the nature of these relationships and the use of the present tense have the consequence that this use of "person" can only refer to a living natural person. If the person is dead, it could not be said that the other person "is related" to that person "by marriage [or] affinity" or that the person "[is] the de facto partner of the [other] person".

66 The situation is different for blood relationships and relationships of adoption. In those cases, it is appropriate and in accordance with common English usage to refer to the relationship continuing in the present tense even thought one of the parties to the relationship is dead. As Campbell JA observed in QY at [43] it is grammatically and factually correct to say that everyone is related by blood to their great grandfather, whether he is alive or dead. Thus, where the word "person" is used to define "relative" by reference to "any person to whom the [other] person is related by blood ... or adoption", that word "person" can apply to natural persons who are alive or dead. In other words, a person can correctly and legitimately be said to be related by blood or adoption to another person at a particular time, even though that other person is dead.

67 Our conclusions in this regard illustrate the truth of Macfarlan JA's observations in QY quoted above that whether a deceased person can be a "person" under the ADA "is an issue of some complexity, which may be resolved in different ways depending upon the context in which it occurs."

Summary - ss 49M and 49B and "Relative" as defined in s 4(1)

68 In summary, our conclusions in relation to whether a dead person can be a "person" for the purposes of ss 49M, 49B and the definition of "relative" in s 4(1) of the ADA can be summarised as follows:

(1) When "person" is used to refer to the perpetrator of the discrimination in ss 49M or 49B, it includes natural persons, corporations and bodies corporate or politic, but only to the extent that those persons were alive or in existence at the time of the discrimination in question.

(2) When "person' is used, in ss 49M or 49B and in the definition of "relative" in s 4(1), to refer to the person the subject of the discrimination, the aggrieved person, it applies only to natural persons who are alive at the time of the discrimination in question. This flows in part from the definitions of "relative" and "associate" but principally from the definition of "disability". The definition of "disability" will be addressed below.

(3) When "person" is used in the definition of "relative" in s 4(1) to refer to the person with whom the aggrieved person has a relationship by blood or adoption, "person" in that case includes natural persons who are living or dead at the relevant time;

(4) When "person" is used in the definition of "relative" in s 4(1) to refer to the person with whom the aggrieved person has a relationship by marriage or affinity or who is the de facto partner of the aggrieved person, "person" in that case includes only natural persons who are living at the relevant time.

69 For these reasons, the Panel concludes that, for the purposes of ss 4(1) and 49B of the ADA, the deceased was a "person" within the meaning of the definition of "relative" in s 4(1) in so far as the relative relationship was based upon Ms ANU and the deceased being related by blood.

70 Consequently, Ms ANU's complaint should not be summarily dismissed as not disclosing a contravention of the ADA on the basis that the deceased was not a "person" within the meaning of s 49B or the definition of "relative" in s 4(1) of the ADA. This issue was the subject of the second ground of appeal.

Was the deceased a "relative" of Ms ANU for relevant purposes?

71 It follows from what we have concluded above that the issue the subject of the first ground of appeal should also be resolved in favour of the respondent to this appeal, Ms ANU. The deceased, being Ms ANU's son and thus related to her by blood, was a "relative" of Ms ANU within the meaning of that word in ss 4(1) and 49B of the ADA as at the date of the alleged discrimination, even though he was dead.

72 This being so, Ms ANU's complaint should not be dismissed summarily as not disclosing a contravention of the ADA because the deceased was not a "relative" of Ms ANU at the time of the alleged discrimination.

73 In this regard, the appellant, SLHD, drew attention to the words of Macfarlan JA in QY at [76]:

s 49B does not extend to discrimination in connection with disabilities of persons who have been in the past, but are not at the time of the discrimination, relatives or associates of the aggrieved person." (underlining added)

74 The Panel accepts that this statement is correct. It does not, however, assist the appellant as we have found that the deceased was, on the proper construction of s 49B and the definition of "relative", a relative of the aggrieved person at the time of the discrimination.

75 Although the words "relative or associate" appear together in s 49B and in a number of other sections, these words are defined separately in s 4(1) and the fact that "associate" does not include a dead person in no way determines whether or not a dead person can be a "relative" for the purposes of the ADA.

76 Our conclusion does not involve impermissibly construing the definition of "relative" in the abstract. That definition is of general application throughout the ADA. Whether and to what extent s 49B and the corresponding provisions of the ADA, such as ss 7, 24, 38B, 39, 49T, 49ZG and 49ZYA, apply in respect of a dead person who falls within the definition of "relative" in s 4(1) at the relevant time will depend upon the proper construction and application of those sections and, in particular, whether a dead person can have the relevantly required characteristic at the time of the alleged discrimination in question. The wording and context of each of those sections may dictate different outcomes in the various circumstances to which they apply.

77 For this reason in this case, we now turn to consider the issue raised by the third ground of appeal in relation to which leave to appeal was given.

Did the deceased have a "disability" for relevant purposes?

78 The issue which was the subject of the third ground of appeal was whether the deceased, assuming he was relevantly a "relative" of Ms ANU, the aggrieved person, had a "disability" for the purposes of s 49B.

79 By operation of s 49M of the ADA, it is unlawful for a perpetrator to discriminate against an aggrieved person on the ground of disability in certain circumstances. Section 49B establishes that the perpetrator discriminates against an aggrieved person on the ground of the disability if, among other things, the perpetrator:

(1) treats an aggrieved person who has a relative with a disability differently from how it would treat a person "who does not have a relative ... who has that disability" - s 49B(1)(a); or

(2) requires an aggrieved person who has a relative with a disability to comply with a requirement or condition with which a substantially higher proportion of persons "who do not have a relative ... who has that disability, comply or are able to comply" - s 49B(1)(b).

80 Subject to s 49A which is discussed below, the use of the present tense in the expression "a relative ... who has that disability" requires the relative to have the disability at the relevant time, being the time at which the discrimination occurs.

81 It thus becomes important to consider in a case such as the present whether a dead person can be said to have a "disability" as that word is defined in the ADA at the time of the alleged discriminatory conduct.

82 The definition of "disability" in s 4(1) provides that it means:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

83 As a preliminary observation it should be noted that each of the types of disabilities listed in paragraphs (a) to (e) is defined by using the word "person". Given the nature of each type of disability identified, the word "person" in each paragraph can only apply to a natural person. Moreover, under s 49B the only persons who relevantly have disabilities are the person aggrieved or a relative or associate of the person aggrieved. Accordingly, the word "person" when used in ss 49M and 49B to refer to the person aggrieved or a relative or associate of the person aggrieved only includes natural persons. This provides further support for the conclusions expressed above in relation to the first issue.

84 Section 49B(1) is predicated upon the fact that a "relative" can have a "disability" within the meaning of the ADA. The Panel's conclusion that a dead person can be a "relative" within the meaning of s 49B(1) if the relationship relied upon to satisfy the definition of "relative" is a relationship by blood or adoption, therefore, gives rise to the question whether on the proper construction of the definition of "disability" a dead person can have a disability for the purposes of s 49B of the ADA.

85 Some of the paragraphs in the definition of "disability" by their nature preclude their operation in relation to dead persons. For example, paragraph (d) "a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction", especially given the use of the present tense of the verb "results", requires that the person must be presently capable of learning. This is not true of a dead person. Accordingly, this paragraph (d) of the definition cannot apply to dead persons and thus the word "person" in that paragraph should be taken not to include a dead person. Substantially the same reasoning leads to the same conclusion in relation to paragraph (e).

86 Paragraphs (b) and (c) are different. They each refer to "a person's body". Both living and dead persons can legitimately be said to have a body. In the case of paragraph (c), a dead person as well as a living person can have a "malformation or disfigurement of part" of the body even if it be correct that a dead person cannot have a "malfunction" of a part of his or her body. There is no necessity to read "person" in that paragraph down to include only living persons in respect of malformation or disfigurement. Similarly, in relation to paragraph (b) a dead person can have present in his or her body "organisms ... capable of causing disease or illness". Once again, there is no necessity to treat "person" in that paragraph as not including a dead person. In our view, these specific definitions take the concept of "disability" which is relevant for the purposes of the ADA beyond the ordinary English meaning of that word to the extent that such a meaning assumes the existence of life in the person with the disability.

87 Furthermore, if a person can be discriminated against because a living blood relative has a disfigurement of part of his or her body or because of the presence in his or her body of organisms capable of causing disease or illness, there does not appear to be any reason having regard to the terms of the ADA or its scope and purpose why a person could not be discriminated against because a dead blood relative has, at the relevant time, a disfigurement of part of his or her body or because of the presence in his or her body of organisms capable of causing disease or illness.

88 Paragraph (a) of the definition of "disability" is less clear. It can be argued that "total or partial loss of a person's bodily or mental functions or of a part of a person's body" is satisfied by every dead person. Thus all dead persons should be taken to have a disability within the meaning of the ADA, simply by being dead. Alternatively, on a close reading of the paragraph, it can argued that what is being referred to is total loss of a person's bodily but not mental functions, total loss of a person's mental but not bodily functions, partial loss of a person's bodily functions (with or without loss of mental functions) or partial loss of a person's mental functions (with or without loss of bodily functions) but not total loss of both bodily and mental functions, which would be death.

89 Given the repeated use of "or" in paragraph (a) and the absence of "and" linking "bodily ... functions" and "mental functions" we think the grammar and syntax of the paragraph support the view that the "disability" described in that paragraph does not include total loss of both bodily and mental functions and thus does not include death. To the extent that it may be relevant when considering a word which has been given an explicit statutory definition, in ordinary English usage a disabled person is different from a dead person and a person with a disability would not normally be taken to include a dead person. We would be unwilling to reach a conclusion that was contrary to both a close reading of the statutory words and ordinary English usage in construing this paragraph.

90 Accordingly, in our view, "person's ... functions" and "person's body" in paragraph (a) of the definition of "disability" in s 4(1) do not include the functions or body of persons who are dead.

91 As has been noted above, s 49A of the ADA gives the word "disability" an extended operation for the purposes of Part 4A of the ADA (ss 49A to 49R), which deals with discrimination on the ground of disability.

92 Section 49A provides:

A reference in this Part to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

93 The references in Part 4A to "a person's disability" includes a relative's disability referred to in various places in s 49B.

94 Section 49A(a), (b) and (d) refer to present or future disabilities. Paragraph (a) does not appear to us to add, or subtract, anything from the definition in s 4(1) of "disability". As to paragraphs (b) and (d), to the extent that a dead person can have a "disability" as we have found above in relation to the definition of that term in s 4(1), these paragraphs have the effect of extending disability discrimination to cover situations where, at the time of the discrimination, discrimination occurred because the dead person:

(1) was thought to have such a disability;

(2) would have such a disability in the future, or

(3) was thought would have such a disability in the future.

95 Paragraph (c) of s 49A appears to us to have a more radical effect in respect of the "disability" that might be relevant for a dead person who was a "relative" of the person aggrieved. This is because a dead person can have had in the past, or can be thought to have had in the past, all the types of disabilities set out in paragraphs (a) to (e) of the definition of "disability" and not just those in paragraphs (b) and(c). Thus, there is nothing in the wording of ss 49M and 49B and the definition of "disability", when s 49A(c) is also engaged, which would require or suggest that this extended concept of "disability", including actual or supposed past disability, could not be applied in respect of an aggrieved person's relative by blood or adoption who was dead at the time of the discriminatory conduct. In other words, discriminating against a person on the ground of the disability of a relative within the meaning of s 49B can include discriminating against a person on the ground of the past disability, actual or supposed, of a relative by blood or adoption who was dead at the time of the discrimination.

96 Although the Second Reading Speech to the Anti-Discrimination (Amendment) Bill 1994 as a result of which s 49A was introduced (NSW Legislative Assembly Hansard 12 May 1994 page 2464) gives some examples (at page 2465) of conduct designed to be caught as a result of the amendment, it does not appear to us to be an attempt to set out a comprehensive statement of the effect of the section. We do not believe that this Second Reading Speech provides any basis for reaching a conclusion different from what we have set out above.

97 Accordingly, our conclusion is that it is possible for a dead person to have a disability falling within paragraphs (b) and (c) of the definition of "disability". Further, by operation of s 49A, it is possible for a dead person to have had in the past or to be thought to have had in the past all of the types of disability listed in the definition in s 4(1).

98 Those conclusions, however, do not provide an answer to the question of whether the deceased had a relevant disability in the present case.

99 As we understand it, it is paragraph (b) of the definition of "disability" in s 4(1) which is alleged to be relevant. It is said that the deceased, being HIV positive when he died, had present in his body organisms capable of causing disease or illness, at the relevant time and it was because of this that SLHD told Ms ANU that it would not reconstruct the deceased's body after a post mortem examination. We do not understand that Ms ANU put her case on the basis that the alleged discrimination occurred as a result of a past disability which, at the relevant time, the deceased had or was thought to have had.

100 We are not in a position, nor was the Tribunal on an interlocutory application to strike out the complaint in a position, to determine whether the deceased, being HIV positive when he died, had present in his body organisms capable of causing disease or illness, at the relevant time. Whether this is or is not so will be a matter for expert evidence at any substantive hearing. It will also depend upon the proper construction of paragraph (b) of the definition of "disability" and in particular the words "organisms capable of causing disease or illness" and whether those words are applicable on the facts as they are proved.

101 For these reasons, it is not possible for us to conclude that the deceased did not have a "disability" within the meaning of that word in ss 4(1), 49A, 49B and 49M of the ADA at the relevant time. All that can be concluded is that it is possible for a dead person to have a disability falling within paragraphs (b) and (c) of the definition of "disability" and it is possible for a dead person to have had in the past or to be thought to have had in the past all of the types of disability listed in the definition in s 4(1).

102 As the Panel has concluded that it is possible for the deceased to have had a "disability" within the meaning of that term in s 4(1) and in s 49B, with or without relying on the extension of the concept of "disability" in s 49A, Ms ANU's complaint should not be dismissed summarily as not disclosing a contravention of the ADA because the deceased did not have a "disability" at the time of the alleged discrimination.

Consistency of Construction

103 It could be thought that in reaching these conclusions we have construed the word "person" in the definition of "disability" in s 4(1) inconsistently, excluding dead persons in some paragraphs and including dead persons in others. Similarly it might be thought that we have been inconsistent in treating the word "person" in the definition of "relative" as including dead persons in some instances and excluding them in others. This would be a misapprehension. It is the whole provision which is being construed not a single word. When the word "person" is used in conjunction with the other words constituting the description of the disability or the meaning of "relative", the word "person" is not to be construed in isolation. As a result of the other words used, the natural or artificial persons in respect of whom the provision could apply may be limited by the circumstances or criteria invoked by those words.

104 In the definition of "relative", there are some relationships which can be said to subsist even after one or both parties to the relationship dies. Other relationships referred to in that definition come to an end on the death of one party to that relationship. As a result, a dead person can be said to be in one type of relationship but it is not possible for a dead person to be in the other type of relationship. For this reason, the word "person" in the definition of "relative" does not have a constant application in that provision. It varies with the type of relationship being described.

105 Furthermore, where we have concluded that the word "person" includes corporations and bodies corporate and politic as well as individuals, for example in relation to the perpetrator in ss 49M and 49B, this is not a case of inconsistent construction of the word "person". The conclusion on construction flows from the wording of the provision, its context and the scope and purpose of the Act as a whole.

106 When Campbell JA said in QY at [10] that "my own reading of the Act suggests that the term 'person' is used with a consistent meaning throughout the Act", we do not understand his Honour to have meant that the other words and phrases that qualify or modify the word "person" when used in particular contexts cannot change or limit the entities (to use a neutral term) to which the word "person" extends. Indeed, his Honour notes at [21] "There are many provisions in the Act in which the word 'person' is used that could apply only if 'person' referred to a living person" but also says at [60] "There is no reason why 'person' in s 119(2) should not extend to a corporation (necessarily not alive) that pays the Board for services or materials. The objectives of the Act would be furthered by reading 'person' in that way." See also Campbell JA's comments at [62] - [63].

107 There is no inconsistency in construing ss 49M and 49B and the s 4(1) definitions so that the word "person" in some instances includes and in other instances excludes dead persons as well as including and excluding corporations and bodies corporate and politic, depending on what is being referred to in the provisions in question. Individual words in a statutory provision cannot be construed independently from the provision as a whole, from their context or from the scope and purpose of the Act in which they are found.

Conclusion

108 For these reasons, in our view:

(1) the deceased was a "person" to whom Ms ANU, as an aggrieved person, was related by blood within the meaning of the definition of "relative" in s 4(1) at the time of the alleged discrimination;

(2) thus, notwithstanding that he was dead at the time of the alleged discrimination, he was a "relative" of Ms ANU for the purposes of s 49B(1);

(3) it is possible for a dead person to have a disability falling within paragraph (b) or (c) of the definition of "disability" in s 4(1) of the ADA and it is possible for a dead person to have had in the past or to be thought to have had in the past all of the types of disability listed in the definition in s 4(1);

(4) whether the deceased had a "disability" falling within the meaning of that term for the purposes of the ADA at the relevant time cannot be determined in this appeal and should be determined at the substantive hearing of the matter.

109 It follows that each of the grounds of appeal in relation to which leave to appeal was granted should be rejected. There was no basis for summarily dismissing Ms ANU's complaint under s 102 read with s 92(1)(a)(ii) of the ADA and the Deputy President's decision not to do so was correct. Accordingly, the appeal should be dismissed. The matter should proceed to a substantive hearing.

Decision last updated: 24 October 2013