Hagar, Morrish & Marinaro v Minister for Health and Family Services [1997] HREOCA 4 (19 February 1997)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984 (CTH)

No. H96/65, 66, 67

Between:

David Hagar

First Complainant

Douglas Morrish

Second Complainant

Victor Marinaro

Third Complainant

And:

Minister for Health and Family Services

First Respondent

Commonwealth of Australia

Second Respondent

REASONS FOR DECISION

of

John Basten QC

Inquiry Commissioner

Location of Hearing: Sydney

Hearing Dates: October 30, December 17 & 18 1996.

Date of Decision: 19 February 1997

Appearances: Mr David Robertson, instructed by Tress Cocks and Maddox for the complainant.

Dr Alex Gelbart, instructed by the Australian Government Solicitor for the respondent.

Ms Kate Eastman, Counsel Assisting the Commission.

1. THE COMPLAINTS

Each of the Complainants in this matter is a male who suffers from osteoporosis. The general nature of each complaint concerns the unavailability of a drug known as Calcitriol under the pharmaceutical benefits scheme administered by the Commonwealth Department of Human Services and Health. Each Complainant asserts that the drug is available to women with a similar condition under the Scheme. Accordingly, they assert that, as men, they are required to pay a higher price for the drug than are women. On 5 March 1996, the complaints were referred by the Sex Discrimination Commissioner for inquiry by the Commission pursuant to s.57(1)(a) of the Sex Discrimination Act 1984 ("the SDA").

The Complainants are 56 years, 72 years and 85 years of age respectively. The matters they raise involve important issues in relation to the operation of the pharmaceutical benefits scheme. Accordingly, the Commission was anxious that the matters be determined as expeditiously as circumstances permitted. Some delay was caused whilst arrangements were made for the Complainants to arrange legal representation. At the final hearing before me, both parties were represented by counsel, Mr David Robertson appearing for the Complainants and Dr Alex Gelbart for the Minister. However, as a result of difficulties encountered in the early stages of the matter in defining the issues, the Commission had appointed a legal officer, Ms Kate Eastman as Counsel Assisting.

Although it seemed possible at one stage that the Commission might need to consider expert medical evidence to determine the issues before it, at the hearing the case was run largely on the basis of agreed facts and the task of the Commission is thus to identify the legal consequences which follow from those facts. If necessary, any disputed issues of fact requiring resolution were to be left to a future date. Further, following the preparation by Counsel Assisting of a draft statement of issues for determination, the parties were also able to identify a number of questions for the Commission to answer, on the basis of the agreed facts.

The Respondent raised what was described as "a preliminary point" which was formulated in the following terms, namely:

"Whether, having regards to the terms of the listing of Calcitriol under the Therapeutics Goods Act and/or the limitation on the Minister's powers imposed by s.101(4) of the National Health Act, the Commissioner should decline to proceed further (under s.79 of the SDA)."

The Complainants objected to this question being treated as a preliminary question, a point of view which, after argument, I accepted. Whilst the Inquiry proceeded to consider a number of other issues concerning the application of the SDA, the first question remained relevant and it is helpful to consider at the outset the issues which it raised.

On the basis that the matter was not disposed of by the answer to the first question, the parties invited me to consider further questions, which were the subject of discussion during the course of submissions. Those issues were not reduced to writing in any comprehensive form, as the precise nature of the conduct complained of was itself redefined during the course of the hearing. However, the Complainants argued that, whatever the precise nature of the conduct, it fell within s.22 or s.26 of the SDA. The first questions arising under the SDA are therefore whether the conduct complained of can fall within the areas defined by those two provisions.

2. THE PHARMACEUTICAL BENEFITS SCHEME

The argument for the Minister commenced with the proposition that, in order for the Complainants to obtain the drug Calcitriol under the pharmaceutical benefits scheme, the drug had to be "listed" as a pharmaceutical benefit under Part VII of the National Health Act 1953. The term "listed" appears to be used to refer to the administrative practice of entering a drug on a list and is not a term found in the relevant legislation. The scheme operates under Part VII of the National Health Act in respect of drugs and medicinal preparations which are "declared by the Minister, in writing, to be drugs and medicinal preparations to which this Part applies": s.85(2)(a)(i). It was agreed between the parties that Calcitriol is listed as a pharmaceutical benefit under Part VII of the National Health Act and it was common ground that I should understand that agreement to refer to the existence of a declaration under s.85(2). Accordingly, Calcitriol is a drug to which the Part applies and accordingly is within the terms of s.85(1), which reads as follows:

85.(1) Benefits shall be provided by the Commonwealth in accordance with this Part, in respect of the drugs and medicinal preparations in relation to which this Part applies.

It will be necessary to consider further the meaning of the term "benefits" in this provision.

The problem for the Complainants is not, of course, that Calcitriol is listed, but rather arises from the circumstances of the listing.

As noted in the question set out above, the Minister relies upon s.101(4) of the National Health Act, which reads as follows:

101.(4) A drug or medicinal preparation shall not be declared, pursuant to paragraph 85(2)(a), to be a drug or medicinal preparation in relation to which this Part

applies unless -

....

(b) the Committee had recommended to the Minister that it be so declared.

The reference to "the Committee" is a reference to the Pharmaceutical Benefits Advisory Committee ("the PABC") established under s.101(1). Its relevant power is set out in subsection (3) in the following terms:

(3) The Committee shall make recommendations to the Minister from time to time as to the drugs and medicinal preparations which it considers should be made available as pharmaceutical benefits under this Part ...

That power is further defined in subsection (3C), which reads as follows:

(3C) Where the Committee is of the opinion that a drug or medicinal preparation, or a class of drugs and medicinal preparations, should be made available as pharmaceutical benefits under this Part, but only in certain circumstances, the Committee shall, in its recommendation under subsection (3), specify those circumstances.

The recommendation of the Committee (which has varied from time to time) specifies particular indications for the use of the drug. Those indications are treated as "certain circumstances" for the purposes of subsection (3C) and accordingly the benefits are only available when the drug is prescribed for those indications. Although there is some variation between the terms of the indications listed in Exhibit C before me and the terms of the agreed facts, the variations do not appear to be significant for present purposes. In terms of the agreed facts, it is said that the drug is listed as follows:

(a) Established post-menopausal osteoporosis in patients with fracture due to minimal trauma ...;

(b) hypocalcaemia due to renal disease;

(c) hypoparathyroidism;

(d) hypophosphataemic rickets, and

(e) vitamin D resistance rickets.

Each of the Complainants suffers from osteoporosis, a degenerative bone disease which is commonly characterised by decreased bone mass and increased susceptibility to fracture. Each of the Complainants has suffered fractures in circumstances which would fit the phrase "fracture due to minimal trauma". None of the Complainants suffers any of the conditions listed in paragraphs (b)-(e) of the indications noted above. Accordingly, they would qualify under the first indication, were it not for the fact that their osteoporosis is not "post-menopausal". Their complaint is that, although their condition is in all relevant respects identical to that of women with post-menopausal osteoporosis with fracture due to minimal trauma, they do not qualify because they are not women and cannot suffer from a post-menopausal condition.

The Minister, on the other hand, while accepting that assertion of the circumstances of the Complainants, and also the assertion that each of the medical practitioners treating the Complainants believes that Calcitriol is an appropriate therapy, argues that his hands are tied. The Committee having recommended that a drug be available only in particular circumstances, the Minister asserts that he cannot make a declaration in respect of that drug for other indications because the Committee has not "so declared".

The Complainants had more than one response to that argument, but sought to meet it in part by having the Commonwealth joined as a Second Respondent. That course had been foreshadowed in the course of an earlier directions hearing and was not opposed. Dr Gelbart indicated that he had instructions to appear for the Commonwealth if it were to be joined. Accordingly, the Commonwealth was joined as a second respondent.

Mr Robertson submitted that, although the Minister might not be able to make a declaration in the absence of a recommendation from the Committee, he or she was not obliged to act on the Committee's recommendation. Thus, if the recommendation were in a discriminatory form, the declaration should not have been made. Mr Robertson said the Minister cannot rely upon the act of another party to justify a discriminatory action in contravention of the SDA. He referred to the reasoning of Lockhart J in Human Rights and Equal Opportunity Commission v. Mount Isa Mines Ltd (1993) 46 FCR 301 at 329-331 in support of that proposition.

The response, which I take to have been proffered on behalf of both the Minister and the Commonwealth, was that this approach would lead to the invalidity of the declaration, thus preventing both women and men with osteoporosis from obtaining Calcitriol under the scheme. This result, it was pointed out, did nothing to improve the condition of the Complainants and was so inherently unsatisfactory that the Commission would not interpret the legislation to that effect, unless such an approach was unavoidable. The correct conclusion, according to Dr Gelbart, was that the circumstances demonstrated inconsistency between the National Health Act and the SDA which could only be adequately resolved by reading down the SDA so that it did not apply to the conduct of the Minister or the PBAC under Part 7 of the National Health Act.

Before turning to the question of inconsistency, it is necessary to refer to the role of the PBAC. This in turn, according to the Respondents, requires consideration of the operation of the Therapeutic Goods Act 1989 (Cth), which purports to provide or promote (the terminology has changed in recent years) a "national system of controls relating to the quality, safety, efficacy and timely availability of therapeutic goods" in Australia: TGA, s.4. In the course of the inquiry, reference was made to the role of the Australian Drug Evaluation Committee ("ADEC"), a role established by regulation under the TGA: see Therapeutic Goods Regulation, cl.36(1)(d). In practice, if not in law, it was suggested that the inclusion of a drug on the register required consideration and a positive recommendation from the ADEC. However, it was not suggested that the Therapeutic Goods Register which, according to the TGA, is maintained by the Secretary of the Department, can only contain drugs as recommended by ADEC. Accordingly, the role of ADEC is not analogous to that of the PBAC under the National Health Act.

Part 3 of the TGA provides for the keeping of a register of therapeutic goods and makes it an offence for a person involved in the importation or manufacture of goods to supply such goods for human use unless they are on the register: ss.20 and 21. In particular, it is argued that a medical practitioner cannot prescribe therapeutic goods, nor could a pharmacist supply them, unless they were on the register maintained under the TGA. Further, the Respondents argue that each specific product is differentiated by, among other things, each specific therapeutic use it may have. This is said to flow from s.16(1) of the Act which provides, relevantly for present purposes:

16.(1) For the purposes of this Part, therapeutic goods are to be taken to be separate and distinct from other therapeutic goods if they have:

...

(e) different indications ...

"Indications" are defined as "specific therapeutic uses of the goods": s.3(1). The Respondents submit that a specific item which has several therapeutic uses therefore constitutes several separate and distinct therapeutic goods. Whether the phrase "different indications" is apt to achieve this result in respect of goods with several specific uses need not be pursued. No doubt that is the way the scheme operates and no doubt that result reflects the purpose of the section. On that assumption, it therefore follows that if a particular drug is on the register in respect of one or more particular indications, it will nevertheless be unlawful to prescribe or supply it for any other indication. Although the registered indications for Calcitriol under the TGA are in slightly different terms to those declared for the purposes of the National Health Act, nevertheless they appear not to include the conditions suffered by the Complainants. Precisely how the Complainants come to be supplied with the drugs is not a matter which was resolved in the course of the hearing.

The purpose of the Respondents in placing reliance on the scheme under the TGA was to demonstrate that the PBAC was effectively limited in its ability to recommend the listing of drugs for the purposes of the pharmaceutical benefits scheme by the terms on which they are placed on the register under the TGA. In other words, the PBAC may recommend a more limited listing for the purpose of pharmaceutical benefits, but could not appropriately recommend a listing for indications not contained in the register under the TGA. Further, as a matter of practice, the PBAC does not carry out inquiries at large. In fulfilling its functions it considers material supplied to it by manufacturers seeking to have a drug included in the pharmaceutical benefits scheme. That material must include evidence which demonstrates the efficacy of the therapy. What appears to have happened in the present circumstances is that the manufacturer, Roche, did not originally apply for inclusion of Calcitriol as a suitable drug for the treatment of osteoporosis in men. That may have been for one of a number of reasons. One possibility is that the information available as to its efficacy did not extend to male osteoporosis. Further, one may surmise that if a particular indication has only a small market it may not be commercially advantageous for the manufacturer to undertake the necessary research to demonstrate the effectiveness of the drug for that further indication.

Since the present complaints were filed, it appears that Roche has made application to include male osteoporosis amongst the indications for which Calcitriol is registered and for which it may be used under the pharmaceutical benefits scheme. The details of that application are not before the Commission and, even if successful, the matter would not necessarily resolve the issues raised by the present complaints.

If it be necessary to return to the question of why a drug might be listed for the purposes of osteoporosis in post-menopausal women but not in men the Commission may need to hear further evidence. That question may have relevance to the test to be satisfied under the SDA, but will not be determinative of the submission presently being considered.

Returning to the Respondents' argument, it may be summarised as follows:

(a) A particular drug may only be listed under the pharmaceutical benefits scheme for particular indications.

(b) The Minister may only declare a drug for the purposes of that scheme if an appropriate recommendation has been received by the PBAC.

(c) Drugs can only lawfully be prescribed and supplied for indications contained in the register maintained under the Therapeutic Goods Act.

(d) Accordingly, it would be futile for the PBAC to consider recommending the listing of a drug for the purposes of pharmaceutical benefits for an indication which was not included in the register under the TGA.

(e) In practice, a drug will only be listed under the TGA on application of a manufacturer or importer. In the present case no application had been made by Roche at the relevant time for the inclusion of Calcitriol on the register for male osteoporosis. Accordingly, ADEC could not appropriately include the drug on the register for that indication; the PBAC could not recommend that it be included in the pharmaceutical benefits scheme for that indication and accordingly the Minister was not empowered to make a declaration extending to that indication.

(f) If the fact that the drug is in part available for a particular condition found only in women and if that is unlawful under the SDA, the consequence is that the listing which provides a benefit to women is invalid.

(g) This is an absurd result in that it could not have been avoided by any responsible conduct on the part of the Minister or the PBAC and should therefore be avoided if possible: see Tickle Industries Pty Ltd v. Hann [1974] HCA 5; (1974) 130 CLR 321, 331.

(h) The result can readily be avoided by reading down the operation of the SDA so as not to apply to the scope and operation of the pharmaceutical benefits scheme.

Accordingly, the next question to be addressed in pursuit of this argument is the appropriate legal principles which would allow the SDA to be read down in the manner suggested.

For the Respondents it was argued that the National Health Act constituted later legislation because relevant provisions, including parts of s.101, had been amended after the commencement of the SDA. The correct way to read the two Acts was, therefore, to treat the provisions of Part VII of the National Health Act as later legislation which, insofar as they were inconsistent with the SDA, produced an implied repeal to the extent of the inconsistency. Whilst no particular authority was relied upon in support of that argument, the principle may readily be accepted: see DC Pearce, Statutory Interpretation in Australia (2nd ed), paras [162]-[164]. However, apart from the care which must generally be taken in concluding that legislation is intended by implication to repeal earlier legislation, where no such intention has been expressed, there are specific difficulties in applying this approach to the present circumstances.

First, to say that an Act is a later Act because it has been amended after the legislation it is said to be inconsistent with is to extend the concept of later legislation quite dramatically. In particular, the argument is unattractive where the scheme was established long before the enactment of the SDA, which commenced on 1 August 1984.

Secondly, the argument is severely weakened by the fact that the SDA made specific provision for anything done "in direct compliance with" other Commonwealth legislation. Further, that statutory exception expressly identified one provision in Part VII of the National Health Act which was inherently discriminatory on the grounds of sex, namely the definition of "concessional beneficiary": SDA, s.40(2)(b)(ii). Whilst it may be argued that that exception was inserted as part of an overall scheme to maintain gender-based differentiation established by the Social Security Act, and that Parliament simply did not advert to the possibility that Part VII of the National Health Act might operate in a legitimate but discriminatory fashion in other respects, the implication to that effect is weakened.

Thirdly, and perhaps most importantly, there simply is no necessary inconsistency. In enacting the SDA, Parliament was undoubtedly aware that the proscription of sex discrimination could give rise to inappropriate results in particular cases. Where it anticipated those cases, specific exemption was provided. Where it did not, it nevertheless empowered this Commission, on application, to grant an exemption according to the terms of s.44. Thus, if a particular recommendation, or proposed recommendation of the PBAC is identified as involving a possible contravention of the SDA but is nevertheless thought to be justifiable, an appropriate exemption could be sought. In other words, no statutory inconsistency arises in circumstances where Parliament has provided a mechanism for avoiding what the PBAC or the Minister may consider an inappropriate result. That statutory mechanism has not been followed in the present circumstances. If there is apparent unlawfulness, a matter which remains to be considered, no doubt appropriate steps could be taken to seek an exemption. However, for present purposes, I am not satisfied that there is any reasonable necessity for reading down the SDA so as to avoid the result feared by the Respondents.

In reaching this conclusion I am conscious of the fact that certain aspects of the pharmaceutical benefits scheme have been amended since the commencement of the SDA. These include the provisions of s.101(4)(b), which were inserted by Act No.4 of 1986 and subsection (3C) which was inserted by Act 118 of 1987. I accept that these provisions provide significant elements in the scheme which gives rise to the present complaints, however, they are nevertheless amendments to an existing scheme. Secondly, as noted by the Complainants, s.40 of the SDA has itself been amended on a number of occasions in 1991, 1994 and 1995. Thus if an Act becomes a later Act by reason of amendment, it is not at all clear that, even in this rather artificial sense, the National Health Act is the later Act.

The question may be further tested by considering the possibility of legislation which post-dates the SDA, is apparently inconsistent with it, but does not contain any express amendment to s.40 of the SDA. Even in such circumstances, this Commission has been reluctant to find a partial implied repeal of the SDA if it has been possible to read the legislation as subject to its terms: see Ramani v. Department of Immigration and Ethnic Affairs (1995) EOC |P92-668. In short, the proscription of sex discrimination as a policy matter is firmly established. It would be most unusual for Parliament to limit the proscription of discriminatory conduct on the ground of sex unless satisfied that there was a legitimate basis for such a distinction. If so satisfied, one would expect express reference to that conclusion in the legislative scheme. Alternatively, if the omission were apparently inadvertent there would rarely be reason to conclude that the matter could not appropriately be dealt with under s.44 of the SDA.

On the basis that the answer to the first question might not be favourable to the Respondent, so as to preclude further consideration of the complaints, the Commission heard argument in relation to the other matters raised by the parties. I now turn to consider those matters.

3. SECTION 22: PROVISION OF GOODS OR SERVICES

The first basis upon which the Complainants put their case is that the relevant conduct constituted the provision of "services" within s.22. That section relevantly provides:

22(1) It is unlawful for a person who, whether for payment or not, provides goods or services ... to discriminate against another person on the ground of the other person's sex ... -

(a) by refusing to provide the other person with those goods or services ...;

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services ... .

The first act of discrimination alleged by the Complainants identifies a failure or refusal on the part of the Respondents "to provide Calcitriol to the Complainants as a pharmaceutical benefit". The third and fourth acts complained of identify the failure or refusal to declare Calcitriol under s.85 of the National Health Act and the decision to declare Calcitriol, but for indications not including male osteoporosis. For present purposes there is no particular difference in the nature of the conduct complained of formulated in these ways. Each of them gives rise to the question whether the Minister or the Commonwealth was, in administering the pharmaceutical benefits scheme, supplying a service to the Complainants.

In this respect, the terminology of Part VII of the National Health Act is somewhat confusing. Section 85(1), the first of the operative provisions, provides:

85.(1) Benefits shall be provided by the Commonwealth, in accordance with this Part, in respect of the drugs and medicinal preparations in relation to which this Part applies.

The Part also defines "pharmaceutical benefit" to mean a drug or medicinal preparation in relation to which, by virtue of s.85, this Part applies: s.84(1).

The "benefits" referred to in s.85 are not precisely defined. However, the scheme of Part VII provides for the price to be paid by the person to whom the pharmaceutical benefit is supplied (see s.87(2)) and an amount to be paid by the Commonwealth to the pharmacist, pursuant to s.99. The pharmacist or practitioner is prohibited from demanding or receiving any further amount in respect of the supply of the drug: s.87(1). Thus it appears that whilst the supplier of the drug obtains a benefit in the form of a cash payment from the Commonwealth, the customer or recipient also receives a benefit in the from of a maximum charge, which will usually be less than the price which the pharmacist would need to obtain in commercial terms. These matters cannot be defined any more precisely because the highly regulated scheme applicable to the provision of pharmaceutical benefits makes it difficult to identify a retail market price for any particular drug. However, it is common understanding that drugs available under the scheme are available at considerable savings to the customer. In particular, the Complainants suggest that the cost to them of Calcitriol is several times the amount paid by women under the pharmaceutical benefits scheme. The precise details are not admitted, but I do not understand there to be any dispute as to the general principle. For example, the Commonwealth has admitted that the price payable for 100 Rocaltrol since 1 August 1996 under the pharmaceutical benefits scheme is $17.40. It was further admitted that one of the Complainants paid in excess of $70 for 100 capsules.

Insofar as the benefits available under s.85 are concerned, it is common ground that they are, in the terms of that section, provided by the Commonwealth and not the Minister. Mr Robertson submitted that the benefits, so understood, involve the provision to the Complainants of goods or services. He referred in particular to the discussion in the judgment of Dixon J in British Medical Association v. Commonwealth [1949] HCA 44; (1949) 79 CLR 201. In particular, he relied upon a passage in the following terms (at p.259)

"The word "benefits" has a long history in the vocabulary of friendly and benefit societies as a general name for the payments in money and for the provision of medical attention, medicines and funeral arrangements made by such societies to or for their contributing members and their dependents in case of sickness or death ... .The general sense of the word "benefit" covers anything tending to the profit advantage gain or good of a man and is very indefinite. But it is used in a rather more specialised application in reference to what are now called social services; it is used as a word covering provisions made to meet needs arising from special conditions with a recognised incidence in communities or from particular situations or pursuits such as that of a student, whether the provision takes the form of money payments or the supply of things or services."

Mr Robertson sought to place his case on a dual basis, namely that the Complainants sought to obtain both things, being the necessary prescription drugs, and services, namely supply of those drugs at a reduced price. To the extent that the Complainants suggested that the drug itself was supplied by the Minister or the Commonwealth, the argument was but faintly put.

Whilst Dixon J was considering the scope of the word "benefits" in s.51(xxiiiA) of the Constitution, it is clear that the benefits available under Part VII of the National Health Act fall within the same concept as that on which his Honour was commenting. Although it may be said that a physical payment is made by the Commonwealth to a supplier, it also makes good sense to describe the result of that payment as the provision of a social service to the recipient of the drugs. Accordingly, unless there is some reason to read down the reference to "services" in s.22 of the SDA, the Commonwealth would appear to be providing a service to all members of the community in need of pharmaceutical benefits supplied under the scheme provided in Part VII of the National Health Act.

For the Commonwealth, Dr Gelbart submitted that there was no provision of services to the Complainants first because what was involved was a payment of money and secondly because the payment was to a third party, namely to the pharmacist and not to the customer.

In relation to the first point, there is undoubtedly authority for the proposition that a payment of money by itself does not constitute the provision of a service to the recipient. Although it was not necessary for the purpose of determining the case, the NSW Equal Opportunity Tribunal upheld the proposition that the payment by the trustee of a superannuation fund of a finite sum of money surplus to the needs of the trust did not fall within the term "services" within the meaning of the Anti-Discrimination Act 1977 (NSW): see Abrahams & Ors v. Harwood Nominees Pty Ltd (unrep, 28 November 1996). In reaching that conclusion the Tribunal relied upon a passage in the judgment of Sheppard J in SWB Family Credit Union Ltd v. Parramatta Tourist Services Ltd (1981) 32 ALR 365 at 383. The Tribunal purported to distinguish the activities of a trustee of a superannuation fund providing services to the members of the fund, but thought that was a different matter from the activity of the trustee in distributing a surplus. In relation to the NSW Act, that finding involved a restrictive interpretation of the first limb of the definition of "services" which is defined as including -

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance. ...

A similar provision is found in the definition of "services" in the SDA, but, significantly for present purposes, the application of that term in the present context requires reference to the final limb of the definition which reads as follows:

(e) services of the kind provided by a government, a government authority or a local government body.

Further, it is clear that the SDA was expected to cover acts done under the authority of the Social Security Act 1947: see s.40(2)(h).

Abrahams may be distinguished on the basis that the payment of an amount under a social security scheme, including the pharmaceutical benefits scheme, constitutes the provision of a service within paragraph (e) in the definition of "services" under the SDA, or because the payment of such a benefit includes assessment of eligibility which, taken as part of the conduct in issue, may constitute the provision of a service rather than simply payment of a sum of money. Whether either or both of these distinctions is justified is not easy to determine as the comments in Abrahams are dicta and not as fully reasoned as they might otherwise have been. In any event, I prefer to deal with the present case on a slightly different basis and do not need to reach a conclusion as to whether the reasoning of the Tribunal in that case should be followed. I prefer to treat this case as involving the question whether the Commonwealth is providing a service to members of the public who are eligible to receive pharmaceutical benefits at a subsidised rate under the scheme.

Although it is somewhat artificial to identify the service purely as the payment of money, the second basis of objection by the Commonwealth, based on this premise, is that there is no service provided to the recipient of the drug, the payment being to the pharmacist or other supplier. Again, where a benefit accrues to an individual, I do not see that there is any need to exclude that benefit from the scope of the SDA on the basis that the mechanism by which the benefit was delivered was a payment of money from the Commonwealth to a third party, namely the supplier of a drug. This conclusion would be consistent with the approach accepted by the Equal Opportunity Tribunal (WA) and Ipp J in the Full Court of the Supreme Court of WA, (Scott J contra) in The City of Perth & Ors v. DL (Representing the Members of People Living With AIDS (WA) Inc) & Ors (1996) EOC |P92-796. The present case is, in my view, stronger from the point of view of the Complainants than was The City of Perth v. DL. In that case, the service, whilst variously defined, was treated (at least by Scott J) as the consideration and determination of an application for development approval lodged by an incorporated body. His Honour concluded that the determination of the application did not involve the provision of a service to the members of the body, even though they may have been the ones intended to benefit were the application granted. The present case is distinguishable because the scheme of Part VII of the National Health Act is expressly directed, not merely to the provision of a subsidy to the pharmacist or other supplier, but also to defining the charge payable by the customer and prohibiting any additional payment.

Thus, whilst I do not accept Dr Gelbart's submissions in their own terms, I believe they are, more importantly, beside the point. The fact that Part VII involves a scheme whereby subsidies are paid to pharmacists is not inconsistent with Part VII also providing a scheme whereby benefits of a different kind are made available to recipients of therapeutic products. In my view, Part VII of the National Health Act involves the provision of social services by the Commonwealth to recipients of pharmaceutical products, those services having amongst their characteristics, the prescription of a subsidised rate at which the therapeutic product may be obtained and a proscription on the levying of any additional charge. Such services do not involve the payment of money, nor are they rendered to third parties. Accordingly, I am satisfied that the pharmaceutical benefits scheme involves the provision of services by the Commonwealth to members of the public in need of prescription drugs.

Given this conclusion, I am not sure that it is strictly necessary to consider whether the benefits provided under Part VII are provided by the Minister. For reasons which appear below, I incline to the view that the conduct of the Minister, if covered by the SDA is more appropriately covered by the terms of s.26. I therefore make no finding in relation to the liability of the Minister under s.22 in the present case.

Further, I do not think the Complainants' case is furthered by a finding as to whether or not the Commonwealth or the Minister provide "goods" within the meaning of that term in s.22. In the course of the present argument, the case was put on the basis that the Respondents were involved in the provision of goods, in this case being Calcitriol. That argument does not fit comfortably within the terminology of s.22. The provision of the physical product is really something well outside the scope of the Commonwealth's role, unless it can be said that the pharmacist is an agent of the Commonwealth. I do not think that analysis is correct. In any event, given my finding in relation to the provision of services, I do not think it necessary to pursue this alternative approach.

4. DISCRIMINATION UNDER S.22

I turn now to the question whether the conduct of the Commonwealth, in failing to make Calcitriol available to the Complainants as a pharmaceutical benefit, at a subsidised rate, constituted unlawful discrimination within the meaning of the Act. This question involves a number of steps, depending in part upon whether the discrimination is alleged to arise under s.5(1) or s.5(2) of the SDA. I deal first with the question of discriminatory treatment under s.5(1).

Section 5 relevantly provides as follows:

5.(1) For the purposes of this Act, a person .... ("the discriminator') discriminates against another person (... the "aggrieved person") on the ground of the sex of the aggrieved person if, by reason of -

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person ...

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person of the opposite sex.

(2) For the purposes of this Act, a person ("the discriminator") discriminates against another person ("the aggrieved person") on the ground of the sex of the aggrieved person if the discriminator imposes ... a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

The two subsections provide, respectively, for discriminatory treatment and treatment having a disadvantageous effect. In relation to the disadvantageous effect, the respondent is provided with a defence if it can establish that its conduct was reasonable in the circumstances: ss.7B and 7C. The current form of s.5(2) is significantly different as a result of an amendment which commenced on 16 December 1995. Accordingly, if it is necessary to rely on s.5(2) of the SDA, it will also be necessary to consider whether this or the now repealed version of s.5(2) is applicable.

In addressing the application of subsection (1), it is necessary to consider both parts of s.5, as the dividing line between the two provisions is by no means clearly drawn. Indeed, it may be necessary to consider whether there is overlap between the two provisions or whether each is intended to be exclusive of the other. Even if each is exclusive, the application of the provisions in the particular circumstances of the case may nevertheless be unclear.

The first issue is whether there is differential treatment on the ground of sex, in relation to the availability of Calcitriol as a pharmaceutical benefit. For the purposes of argument, it appears to have been assumed that paragraphs (d)-(e), setting out specific indications, were not sex-based and might apply equally to members of either sex. Accordingly, it was argued by the Respondents that Calcitriol was indeed available to men for various conditions or indications. It was only in relation to the condition identified in (a) that there was a sex-based criterion in issue.

As the Complainants did not have any of the conditions identified in paragraphs (b)-(e), but did have the condition identified in para (a), absent the need to be "post-menopausal", they argued that para (a) was the indication relevant to their cases. In my view, that analysis is correct. Under the Therapeutic Goods Act, according to the Respondents' own analysis, a particular product constitutes a "different therapeutic good" for each indication for which it is on the register. Although the precise analysis available under the TGA may not apply under the National Health Act, nevertheless, it is the Respondents' position that only those therapeutic goods which are registered under the TGA can be the subject of the pharmaceutical benefits scheme. Accordingly, it is not inappropriate to consider Calcitriol independently in relation to each indication, when considering its availability under the National Health Act. However, the correct approach to this issue does not necessarily depend on that analysis. An employer which divides its workforce into five administrative units and hires men and women in four, but women only in the fifth, does not avoid the conclusion that it discriminates against men because it only does so in one area of its operations. Indeed, an employer with a workforce of 1000 staff will discriminate if, in respect of only one position, it refuses to consider male applicants or female applicants. It therefore appears that the sex-based criterion identified in para (a) of the indications involves differential treatment on the ground of sex within s.5(1)(a) of the SDA.

Although it may be said that there is no reference to gender in that provision, but only to being "post-menopausal", that term inevitably applies only to women and is accordingly sex-based differentiation: see Gerhardy v. Brown [1985] HCA 11; (1984-85) 159 CLR 70 at 118.4 per Brennan J.

If that analysis is incorrect, the reference to being "post menopausal" is nevertheless appropriately identified as a reference to "a characteristic that appertains generally" to women. This analysis, however, is complicated by the requirement that the characteristic to be identified as the basis of discrimination is a characteristic appertaining generally to persons of the same sex as the aggrieved person. Whilst "not being post-menopausal" is undoubtedly a characteristic that appertains generally and probably universally to men, it is not unique to men. At the very least, a large proportion of women who have not entered menopause have that characteristic, negatively defined. (It is possible that women who have reached menopause are not necessarily thereafter post-menopausal, but no argument was directed to this issue.)

There has been little exegesis on the circumstances in which this phrase is satisfied. However, it does not seem necessary that a characteristic which is inherent in one sex and absent from the other should also be universally present in one sex in order to constitute a basis for unlawful discrimination. Further, there is no reason in principle why the characteristic need be unique to one group. Indeed, the statutory terminology, which is common throughout both Commonwealth, State and Territory legislation in this country, is not in most circumstances applicable to only two groups. Thus, in relation to marital status, for example, there are several different groups some of which share characteristics which have been accepted as relevant characteristics for the purposes of the equivalent comparison: see Sullivan & Ors v. Department of Defence (1992) EOC |P92-421 at p.79,005 and Human Rights and Equal Opportunity Commission v. The Commonwealth [1993] FCA 547; (1993) 46 FCR 191 at 193-4 (Black CJ), 204 (Lockhart J) and 208 (Wilcox J).

On the assumption that the Complainants are successful in establishing differential treatment, the next question is whether they are treated less favourably than women. This issue does not appear to give rise to any real dispute: women obtain the service, whereas in this instance men do not.

The next question is whether the circumstances are relevantly "the same or are not materially different". The Complainants' case is that the SDA assumes that sex and sex-based characteristics are put to one side for the purposes of this aspect of the comparison. As has been said by the President of the Commission in other circumstances, in a phrase approved by the Full Federal Court, to treat the circumstances as materially different because of a characteristic inherent in one sex but not another would be to "fatally frustrate" the objects of the legislation: Sullivan, supra, p.79,005.8 (col.2) in a passage cited with approval by the Full Court in HREOC v. Commonwealth, 46 FCR at 194.5 (Black CJ), 205-6 (Lockhart J) and 208 (Wilcox J).

In The City of Perth v. DL (supra), Ipp and Scott JJ, in the Full Court, held that there was no discrimination against people with an impairment if the reason for the differential treatment was a characteristic which was not unique to people with such an impairment and the Respondent treated all people with that characteristic uniformly. The argument flowed, as a matter of interpretation, from the fact that the equivalent legislation in Western Australia, like the SDA, identified the person with whom the comparison should be made as one without the impairment, but made no reference to the absence of a characteristic. Similarly s.5(1) of the SDA merely refers in the final words of the subsection to a comparison between treatment of the aggrieved person and treatment of "a person of the opposite sex". No argument based on that construction was put to the Commission by the Respondents in the present case. On the analysis set out above, it would in any event be unsuccessful on the basis that the differential treatment should be viewed primarily as depending upon sex, without the need to refer to characteristics. Nevertheless, if it were necessary to rely on characteristics as identified in paragraph (b), the approach adopted by the Western Australian Supreme Court is unattractive. To ignore reference to a defining characteristic, specifically identified as a impermissible ground for differential treatment in paragraph (b) of the section, when making the comparison required by the final words of the section, would just as readily "fatally frustrate" the object of the Act as would reading the impermissible discrimen into the concept of "circumstances that are the same or not materially different".

In substance the case for the Respondents is that women are physiologically different in a way which would justify a pharmaceutical product being made available to them and not to men. Or to put the issue more precisely, for present purposes, there is a factual dispute as to whether that analysis is correct. For reasons already given, I do not think it is open to the Respondents to seek to establish such a factual difference, there being no specific exemption which would allow them to discriminate on the basis of an identified physiological difference of this kind. Again, if there is a difference and it is relevant for the legitimate purposes of administering the pharmaceutical benefits scheme, it is open to the Minister or the Commonwealth to satisfy the Commission of this fact and seek an exemption under s.44.

5. INDIRECT DISCRIMINATION: PROVISION OF SERVICES

For the reasons set out above, I conclude that if there is discrimination in relation to the failure to supply Calcitriol to the Complainants under the pharmaceutical benefits scheme, it is discrimination on the ground of sex or on a characteristic appertaining generally to men. The Complainants have also framed a complaint within s.5(2) in that they say that a condition or requirement has been imposed on them, namely that, having osteoporosis with fracture following minimal trauma, they can only have access to Calcitriol under the scheme if they are post-menopausal. Since they cannot satisfy this condition, they are disadvantaged in that they do not have access to the drugs under the scheme. Other men would be similarly disadvantaged. However, s.5(2) is subject to the qualification that there is no unlawful discrimination if the condition is "reasonable in the circumstances": s.7B(1). Under the present form of the SDA, it would be necessary for the Commission to consider various matters, including the factors set out in s.7B(2) in determining whether or not the condition was reasonable. In the circumstances of this case, that inquiry could give rise to two different lines of analysis. First, the Respondents could argue that their conduct was reasonable at all stages, given the expert advice they had from ADEC (in relation to placing the drug on the therapeutic drugs register) and from the PBAC (in relation to the inclusion of the drug on the pharmaceutical benefits list). Each of those committees could in turn justify their conduct on the basis of the material supplied to them by the manufacturer. There would then be a serious question as to whether the conduct of the manufacturer in applying for registration and listing on a limited basis could be said to be unreasonable: the manufacturer is not a party to the proceedings.

Secondly, the question could depend upon whether it was reasonable, in medical terms, to think that osteoporosis with fracture due to minimal trauma is a condition which may differ, or rather the treatment of which may differ, as between men and women. The answer to this question may not be easily resolved. On the one hand, it is a truism to note that there are physiological differences between men and women, and particularly that hormonal changes occur in women as part of the process known as menopause. Further, one may accept for the purposes of argument that osteoporosis is associated with post-menopausal women and is less common in men not suffering from some other identifiable condition. Nevertheless, it does not follow that a treatment which is effective in women will not be effective in men. Indeed, the Complainants have already obtained expert evidence from a distinguished authority which would appear to support the proposition that the treatment may be equally effective in men and women. That view has not been tested and there is a real question as to whether it could be the subject of consideration by the Commission. In the course of the hearing so far, Dr Gelbart has pressed on the Commission the view that it should avoid an approach to the evidence which would in effect amount to a review on the merits of the decision of the PBAC or possibly the decision of the ADEC. While the administrative law analogy does not appear appropriate in the circumstances of a complaint under the SDA, the Respondents may be entitled to succeed in establishing reasonableness under s.5(2) merely by relying on the previous argument, without seeking to justify their claim of reasonableness by use of medical evidence: in relation to the onus of proof, see s.7C.

Although the present discussion has been phrased in terms of the current definition of indirect discrimination under the SDA, there is a question as to whether the provisions in force prior to the 1995 amendment may be the relevant provisions, or whether both may be relevant in relation to different periods.

Before addressing any of these questions, it is necessary to consider whether s.5(2) has any relevance once a conclusion has been reached that the conduct falls within the terms of s.5(1). In short, are the two provisions mutually exclusive?

The interrelationship of the two provisions is not entirely straightforward. Section 5(1) focuses on the ground of the treatment, whereas subsection (2) focuses on its effect. Secondly, subsection (1) requires a comparison of the treatment of the complainant and a person of the opposite sex, whilst subsection (2) merely refers to "disadvantaging" persons of the same sex as the complainant. A similar distinction, although not identically worded, led two members of the High Court in Waters v. Public Transport Corporation to conclude that the definition of indirect discrimination in the Victorian legislation then under consideration was not "a complete and exhaustive statement of what constitutes indirect discrimination" for the purposes of that legislation: see 173 CLR at 358-359, Mason CJ and Gaudron CJ. Indeed, their Honours questioned why the legislature had thought it necessary to draw the distinction between direct and indirect discrimination: p.364.4. However, the effect of the distinction, in that case as in the present case, is that it permits the alleged discriminator to rely upon the reasonableness of conduct in one case but not in another. This distinction led some members of the Court to conclude that the subsections must be construed as dealing separately with direct and indirect discrimination in a manner which is mutually exclusive: see 173 CLR at 392-393, (Dawson and Toohey JJ) and at 402 (McHugh J). The Victorian legislation under consideration in Waters provided a definition of discrimination which identified less favourable treatment in very similar terms to the present s.5(1): Equal Opportunity Act 1984 (Vic), s.17(1). In s.17(5) the Act then provided for indirect discrimination but by means of a provision which related directly back to the first provision by purporting to extend the definition of discrimination in subsection (1). The argument for a mutually exclusive construction of the two subsections is stronger in a case, such as the present, where subsection (2) does not relate to subsection (1) in its express terms. This conclusion also follows from an application of the judgment of the Full Federal Court in Australian Medical Council v. Wilson (1996) 137 ALR 653, in relation to the equivalent provisions in the Racial Discrimination Act 1975 (Cth), to the SDA.

For reasons already given, I take the view that the conduct complained of falls within s.5(1). On that view, if, as I also accept, the provisions should be viewed as mutually exclusive, it cannot also fall within subsection (2). Although I have commenced by considering subsection (1), the same result is, in my view, achieved by considering subsection (2) in its terms. The structure of the Australian legislation, as noted by Mason CJ and Gaudron J in Waters, is to reflect the distinction between disparate treatment and disparate impact discrimination identified by the US Supreme Court in Griggs v. Duke Power Co [1971] USSC 46; 401 US 424 (1971), discussed at 173 CLR, 357. Accordingly, the purpose of subsection (2) is to deal with "facially neutral" requirements or conditions which may have a discriminatory impact. A condition which is on its face sex-based is not facially neutral. In the employment area, a good example of a facially neutral requirement is to be found in the retrenchment of workers on a "last-on, first-off" basis. Such a practice gives rise to an effective condition that, in order to remain in employment, one must have been hired before a particular date. That may of course have a discriminatory impact on men or women in the workforce, but in its terms has no sex-based element: cf. AIS v. Bannovic [1989] HCA 56; (1989) 168 CLR 165. As the relevant criterion in the present case is sex-based, it should not be caught by subsection (2), properly construed.

6. ADMINISTRATION OF COMMONWEALTH LAWS AND PROGRAMS

The Complainants also put their case on the basis that the conduct complained of involved the performance of a function or the exercise of a power under a Commonwealth law or for the purposes of a Commonwealth programme: SDA, s.26(1). The term "Commonwealth program" is not defined in the Act, but may reasonably be treated as involving the administration of a scheme established by the Commonwealth, but which may not involve the performance of a function or exercise of a power or, if it be a separate category, the fulfilment of a responsibility, which is expressly identified in a Commonwealth law. It has not been suggested in the course of argument in these proceedings that any issue arises as to the precise terms of s.26.

As I understood the argument for the Respondent, it was to this effect:

(a) Neither the Minister nor the Commonwealth supplied services, nor goods, within s.22;

(b) the Commonwealth was excluded from the scope of s.26, and

(c) nothing that the Minister did, which might be caught by s.26, involved a distinction based on sex.

In other words, the argument with respect to the scope of s.26 is in effect limited to the Commonwealth as a respondent.

From the point of view of the Complainants, the attraction of bringing their case within s.26 is not simply that they may succeed although there is no provision of goods or services, but also that they may succeed even if the discriminatory conduct is ultimately not that of the Minister, but that of a committee established under Commonwealth laws and for which, in the terms of s.26, the Commonwealth is responsible.

It is thus necessary to consider an argument that the Commonwealth is not caught by s.26 because it is not "a person" for the purposes of that provision. At first blush, this argument is not attractive. It requires the word "person" to be given a limited meaning in relation to the Crown in right of the Commonwealth, although the section expressly states that it binds the Crown in right of the State: s.26(2). Further, and as a practical matter, it is unattractive if the basis of the argument is to ensure that the term "person" is given a distributive meaning, so that the conduct of various persons is considered individually. If discrimination can only be established as a result of the effect of the totality of the conduct, the Commonwealth will escape even though each of the persons responsible is a Commonwealth officer. At least, I take that to be the intended effect of the submission as it was conceded that the Minister himself was caught by s.26 and that the Commonwealth was responsible for the operations of the PBAC and ADEC.

In any event, the submission may be considered without any preconceptions as to the result of its acceptance. In substance, the argument depended upon the terminology of s.9(7) of the Act. That provision states:

9.(7) The prescribed provisions of Part II have effect in relation to acts done, by or on behalf of -

(a) the Commonwealth...; or

(b) a body or authority established for a public purpose by a law of the Commonwealth ...,

in the exercise of a power conferred by a law of the Commonwealth... .

The phrase "prescribed provisions of Part II" is defined in a manner which excludes s.26; s.9(1).

The thrust of the argument was that the Act has application in accordance with s.9. As s.26 was expressly excluded from the subsection which gave effect to "the prescribed provisions of Part II", then s.26 did not have operation in relation to the Commonwealth. There is a problem with the argument in that the coverage of subsection (7) is referable to acts done, and does not purport to exclude the Commonwealth from the operation of the Act. Thus, there is an inconsistency in arguing that an act done by a Minister can be caught by s.26 but that the Commonwealth will not be caught by s.26 because s.26 does not have effect under s.9(7). That problem aside, however, there is a more substantial reason why s.9(7) does not have the operation for which the Respondents argue. Properly understood, s.9 is intended to give the broadest effect to the provisions of the legislation, in their terms, as permitted under the Constitution. For example, although the Act relies upon the Convention on the Elimination of all forms of Discrimination against Women as a substantial basis for its valid operation (see s.9(10)), that would not permit the Commonwealth to prevent discrimination against men. The Act seeks to have that additional operation in areas in which the Commonwealth has power. Section 9, perhaps in a somewhat complex manner, attempts to give the legislation its maximum statutory scope, presumably on the basis that, if a constitutional challenge were mounted to its validity, it would not be necessary for the Court to consider whether its operation could be restricted, or whether such an exercise in severance was too complicated and therefore the whole of the Act would fall. Accordingly, the prescribed provisions of Part II are given defined areas of operation: see s.9(4). Section 26 is excluded from the definition of the prescribed provisions because the Commonwealth can validly legislate with respect to Commonwealth laws and programmes without the need to rely on the Convention or any other specific head of power in s.51 of the Constitution. Accordingly, I do not think that the Commonwealth is excluded from the operation of s.26 by an inference drawn from s.9(7).

Section 26 has, however, another significance in the present context. In the course of the judgments in Waters, the High Court gave specific consideration to the terms of a statutory exemption for "an act done by a person if it was necessary for the person to do it in order to comply with a provision of ... any other Act": Equal Opportunity Act 1984 (Vic), s.39(e)(ii). The question was whether a direction given under the Transport Act 1983 (Vic) was a sufficient basis for excluding liability under the Equal Opportunity Act. As noted by McHugh J (at 413.6):

"The power of the Minister to give directions under s.31(1) is subject to the operation of the general law. By the general law, I mean the body of common law and equitable rules which are supplemented or amended by statutes and regulations and other instruments having the force of law. Section 31(1) therefore, would not authorise a direction that the Corporation commit a crime or tort or breach a contract or by-law. Nor would it authorise a direction that the Corporation permit a breach of a statute such as the Act. These propositions, though not directly expressed in the Transport Act, are self-evident. They are self-evident because, under a government of laws and not of men and women, it is axiomatic that, in the absence of express words or necessary intendment, Parliament does not intend the recipient of the power to authorise a Minister, statutory body or Government official to break the law of the land."

In the context of the SDA, the expectation that Commonwealth officers will exercise their discretions and powers in accordance with the SDA in the absence of any clear intention to the contrary, is reinforced by the presence of s.26. Were the conduct not otherwise covered by the SDA, the conduct identified by the very broad terms of s.26 would expressly fall within the scope of the Act and, if it would constitute discrimination against another person on the ground of the other person's sex, it is prohibited. In some case it may be necessary to consider whether that prohibition is limited to discriminatory treatment, or, in addition, covers conduct which may have a discriminatory impact though it does not on its face identify a sex-based criterion. As, in the present case, the conduct complained of involves treatment on the basis of sex or a sex-based characteristic, that question need not be addressed here.

7. RELEVANCE OF RELIEF

In accordance with the manner in which the parties have presented argument with respect to these complaints, the Commission is asked to answer specific questions. Further, the Respondents submitted that the Commission should not answer any question adversely to them because any relief would ultimately be futile or, in Dr Gelbart's terms "sterile". I am not satisfied that that argument should prevail. First, the precise terms of the relief available to the Complainants has not been addressed in argument. In their points of claim, the Complainants seek damages on the basis that they have incurred costs which would not have been incurred but for the discriminatory conduct. That relief cannot be dismissed as futile, the existence of a cost differential being common ground between the parties, except on the basis that the declaration under s.85 of the National Health Act, which permitted women to obtain Calcitriol at the prescribed rate, was invalid. Even if that were the case, as a matter of fact women have obtained the drug at a lower price in the past. The Complainants may be entitled to argue that they have suffered damages notwithstanding the invalidity of the declaration because they have paid a higher price and because any finding of invalidity would not be retrospective.

Further, I should not assume, that, if the Commission were minded to make a declaration within the power granted by s.81(1)(b)(i) of the SDA, that it would be ineffective. Rather, I think I should assume to the contrary that the responsible officers of the Commonwealth would take immediate steps to ensure that the operation of the pharmaceutical benefits scheme under Part VII of the National Health Act will be administered in such a way as to comply with the SDA. Nevertheless, as I have not heard argument on the question of relief, I do not intend to make any final determination under s.81.

8. CONCLUSIONS

I have considered whether I should, as requested by the parties, answer specific questions in the form in which they were drafted by counsel and in a manner which helpfully refined the issues originally identified by Ms Eastman. However, on further consideration, it appears to me that to be properly answered, the questions would require some reformulation. Rather than undertake that task, it is preferable that I indicate my findings in a form which may allow the parties to reach some common view as to appropriate orders for relief. Accordingly, I find as follows:

(1) The provision of pharmaceutical benefits (as defined in s.84 of the National Health Act) in accordance with the scheme established under Part VII of that Act constitutes the provision of a service by the Commonwealth for the purposes of s.22 of the SDA.

(2) In making the drug Calcitriol available to persons with established post-menopausal osteoporosis with fracture due to minimal trauma, the Commonwealth discriminates against men with established osteoporosis with fracture due to minimal trauma on the ground of their sex.

(3) In the alternative to (2) the conduct of the Commonwealth as described discriminates against men on the ground of a characteristic appertaining generally to men, namely that they do not experience menopause and cannot be "post-menopausal".

(4) Such conduct involves less favourable treatment of men than women in that, insofar as Calcitriol is available to men with the condition identified in (1) above, it is only available at a cost in excess of that at which it is available to women in circumstances which are the same or not materially different.

(5) Accordingly, each of the complaints against the Commonwealth under s.22 of the SDA is substantiated.

(6) The findings in (2) (or (3)) constitute discriminatory conduct in the performance of functions and exercises of power under a Commonwealth law, namely the National Health Act and for the purposes of a Commonwealth programme, namely the administration of the pharmaceutical benefits scheme established by Part VII of that Act.

(7) Both the Minister, in making a declaration under s.85 of the Act, and the Commonwealth in administering the scheme through appropriate officers, have discriminated against the complainants within the terms of s.26(1) of the SDA.

(8) Accordingly, each of the complaints against the Minister and the Commonwealth under s.26 of the SDA is substantiated.

Subject to hearing the parties, I would be inclined to make declarations in terms of the findings set out above. It is sufficient for present purposes that I direct the matter be relisted at a convenient time to hear further submissions with respect to appropriate determinations under s.81 and other forms of relief. If the parties are satisfied to take this course, the further hearing of the inquiry may be dealt with by written submissions according to a timetable agreed between the parties and counsel assisting.

Dated: 1997

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John Basten QC

Hearing Commissioner