Woodforth v State of Queensland

This recent decision considers the appropriate approach to be adopted in determining whether a person has been discriminated against by being treated less favourably than a person without their relevant impairment. The applicant had a severe hearing impairment, but also, as a result, was unable to communicate by conventional speech. The case considers the appropriate comparator for determining this question. Before QCAT and the QCAT Appeal Tribunal, the approach had been to compare the treatment of a person without a hearing impairment, but who had similar communication difficulties. The Court of Appeal held that this was the wrong approach, and that in fact the true comparison ought to have been against a person without both a hearing impairment, and the resulting “characteristic” of that impairment: the inability to communicate by conventional speech.

Holmes CJ and McMurdo JA and Bond J

23 May 2017

This decision has potential ramifications for discrimination laws both in Queensland and other jurisdictions and is of interest as it considers, amongst other things, how to assess whether a person has been discriminated against because of their attribute.

The applicant, who had a severe hearing impediment and was “unable to communicate by conventional speech”, [27] encountered ongoing difficulties in reporting an assault allegedly committed against her by to police.  She alleged that she was discriminated against because of her hearing impairment in contravention of the Anti-Discrimination Act 1991 (the ADA). She was not given an Auslan interpreter during her many and repeated attempts (from 13 December 2011 to 28 December 2011) to pursue the matter. [7]–[19]. An interpreter was eventually arranged with the assistance of the Ipswich Regional Advocacy Service, enabling her to progress the matter to the point of outlining her version of events to police officers, making a complaint about the original assault and the theft of her belongings and lodging a further complaint about the unavailability of an interpreter on previous occasions. In March 2012, again with the assistance of an Auslan interpreter, the applicant was formally interviewed. [20].

Initial complaints of discrimination

In April 2012, the applicant lodged a complaint of discrimination with the Anti Discrimination Commission. [21]. In QCAT, she alleged both direct and indirect discrimination, specifically arguing that the respondent had failed to investigate her complaints in a timely way, and that its various failures constituted treatment which was less favourable than that which would have been provided to a person who had been an alleged victim of similar crimes but who did not have her impairment. She submitted that the respondent had imposed a term that it would only investigate her complaints expediently if she “was able to communicate the details of the complaint to the police in English by conventional speech”, which she was unable to do due to her impairment. She alleged that that requirement was a term which was unreasonable. [22].

The decision of the QCAT member

In addressing whether the applicant had been treated less favourably than a person without her impairment would be, the tribunal member found that “there was no evidence presented that the Police would not utilise other means of communication when dealing with others, who were not hearing impaired, but had communication difficulties, in the same or similar circumstances”. [32]. The applicant’s complaint was dismissed.

In his Honour Justice McMurdo’s view (the Chief Justice and Bond J agreeing), the usage of the words “but had communication difficulties” denoted a “critical error” in the member’s reasoning. [33]. He regarded the comparison which she made (between a person with a hearing impairment and communication difficulties and another who had communication difficulties but no hearing impairment) as flawed because it did not encompass any consideration of whether those communication difficulties, or the applicant’s inability to communicate by conventional speech, was a characteristic of her impairment within s 8 of the ADA. The court concluded that the member’s misdescription of the comparator potentially affected her factual findings that the applicant was treated no less favourably than a person without a hearing impairment. [34], [36].

In terms of the issue of indirect discrimination, the member determined that the applicant had not established that the police had imposed a term that they would only investigate her complaint in a timely manner on the proviso that she was able to communicate by conventional speech. Accordingly, the member found it unnecessary to consider whether such a term, had it been imposed, would have been reasonable. [37].

The decision of the Appeal Tribunal

In her appeal to the Appeal Tribunal the applicant argued that the member had used the wrong comparator and that the appropriate comparator was someone who was not hearing impaired and had no relevant communication difficulty. [41]. The Appeal Tribunal dismissed that argument because, in its view, it was inconsistent with the reasoning of the High Court in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92. [41]. That decision concerned a claim of unlawful discrimination under the Disability Discrimination Act 1992 (Cth) which was limited to direct discrimination.  [45]. The appellant in that case had a disorder and displayed disturbed behaviour as a result. [47]. The High Court held that the comparison was to be made upon the factual premise of the behaviour which had occurred, that forming part of the “circumstances”. [51]. The Disability Discrimination Act 1992 (Cth) contains no equivalent of s 8 of the ADA, by which the meaning of discrimination on the basis of an impairment is defined to include discrimination on the basis of a “characteristic” of an impairment. [50], [53]. The Court of Appeal nonetheless considered that the High Court’s reasoning was relevant here as they had explained the need to construe the statute to avoid excluding “from consideration that attribute … which makes that person “different” in the eyes of others”. [50].

Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of a person without the impairment would be “in the circumstances that are the same or not materially different” from those that constituted the context for the treatment of the impaired person. The court found the Appeal Tribunal’s decision to be lacking in that, whilst adverting to s 8, it had overlooked its effect upon the operation of s 10. [53]. In the present case, the court held that the ADA proscribed discrimination on the basis of a characteristic, that being the applicant’s inability to communicate by speech. This proscription would be “ineffective” if the characteristic of the disability were also held to be a “circumstance” for the purpose of 10. [53].

In addition the court found that the Appeal Tribunal had erroneously likened the characteristic of the applicant’s impairment with incidents of violent behaviour that had taken place in Purvis. [54]. In Purvis, those incidents of violent behaviour resulted from the student’s disorder but also could have been present in a student without any disorder. [56]. Here the applicant’s case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. [57].

The Appeal Tribunal accordingly had misunderstood the relevance of the reasoning in Purvis and thereby erred in law. In effect the applicant’s case as to the findings of fact which should have been made by the QCAT member were not properly considered because in each case the wrong legal test was applied. [57]. The court admitted the outcome may be the same but as that did not plainly appear the case should be returned to the Appeal Tribunal. [57].

A de Jersey