Not being heard

Key Point
  • Section 7 of the Disability Discrimination Act prescribes that discrimination can exist if a person is treated less favourably than another person whose associate does not have a disability.

A recent decision of the Federal Court of Australia determined the primary judge denied the appellant procedural fairness and allowed an appeal after considering the primary judge was wrong to dismiss a matter. The primary judge concluded there was an abuse of process in the appellant’s claim and she had been discriminated against after being denied the presence of a sign language interpreter to assist her husband with communication during the birth of their child.

In the matter of Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107 the court considered the primary judge’s decision to dismiss the application on the grounds that it did not have reasonable prospects of success and constituted an abuse of process.

The appeal arose following a complaint of disability discrimination to the Australian Human Rights Commission.  In the initial complaint the applicant alleged the respondent private hospital discriminated against her and her husband pursuant to section 46PO of the Australian Human Rights Commission Act 1986 for refusing to provide a sign language interpreting service for the applicant’s husband who is deaf, to be present during the birth of the couple’s baby.  The applicant alleged that she had been discriminated against because of her association with a person with a disability, that is her husband.

In submissions, it was argued on behalf of the applicant that services provided by the hospital were in fact to both the appellant and her husband. Further, and in the alternative, the husband could be joined as a party to the application. Ultimately it was argued that, section 7 of the Disability Discrimination Act applies given that the applicant was an associate of her husband, who had a disability and was denied interpreter services in circumstances where this would enable effective communication between hospital staff if for example, complications arose during the delivery. It was also argued that in not arranging for an Auslan interpreter, the hospital did not endeavour to make what would have been a reasonable adjustment in accordance with section 5(2) of the Disability Discrimination Act. Therefore the hospital in its failure resulted in the applicant and her husband being treated less favourably than a person without disability.

Despite the submissions the primary judge concluded the hospital was not providing any services to the applicant’s husband.

The primary judge noted that the applicant did not end up delivering her baby at the respondent private hospital and therefore he failed to understand why the application was being made given the applicant delivered at another hospital which did make arrangements for the presence of a sign language interpreter at the birth.  Remarkably, his Honour made comment that “the applicant’s demand for free Auslan interpreting services… is at best a misplaced belief of entitlement that does not give rise to any arguable case of unlawful discrimination”.  Furthermore, in considering the applicant’s submissions that it may/would be necessary for medical and nursing staff to communicate with her husband during the birth in the event that complications arose, (this being the basis for the need of an interpreting service), he claimed this essentially gives rise to an argument that service providers would be required to provide an interpreter anywhere the applicant and her husband went.

In a judgment delivered by Collier, Jagot and Perry JJ it was held the primary judge’s decision that the application constituted an abuse of power was wrong. The court concluded that services provided to the applicant included a service to the husband to enable him to play a part in the birth and importantly partake in decision making about treatment in the event that this is necessary and in particular if the applicant is unable to do so herself.  The court concluded that communication with the husband was part and parcel of a service that was provided to the applicant.  In any event, the court held that section 7 of the Disability Discrimination Act applied and that it was open to be argued that the applicant was treated less favourably than a person whose associate did not have a disability.

The appeal was allowed and an order was made that the application be readmitted to another judge of the Federal Circuit Court of Australia for determination.

Post by Violet Stojkova

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