W v D [1999] HREOCA 33 (24 December 1999)

Human Rights and Equal Opportunity Commission
Sex Discrimination Act 1984 (Cth)

H97/221

W
Complainant
And

D
First Respondent

And
Royal Women’s Hospital

Second Respondent

REASONS FOR DECISION
OF
PETER JOHNSTON
INQUIRY COMMISSIONER

Date of Decision: 24 December 1999
Location of Hearing Melbourne
Hearing Date: 30 – 31 March 1998
Appearances: Ms F. O’Brien, for the Complainant.

Mr J. Ruskin and Mr S Maloney, for the First Respondent, instructed by John W Ball and Sons, solicitors.

Ms M. Young, for the Second Respondent, instructed by Phillip Fox, solicitors.

1. INTRODUCTION
   

On 10 January 1997 the complainant lodged with the Human Rights and Equal Opportunity Commission (“the Commission”) a complaint in which she alleged that the respondents had engaged in discrimination against her, contrary to sections 6 and 22 of the Sex Discrimination Act 1984 (Cth) (“the SDA”). In essence her complaint is that the discrimination consisted of failures to provide her with goods, services and facilities on the basis of her marital status. This was because she had sought in 1994 to join a donor insemination program provided by a clinic run by the first respondent as part of the Royal Women’s Hospital, the second respondent, but was effectively denied access to that program because she was an unmarried person. Further, the complainant claims that in February and August 1996 she consulted the first respondent with the purpose of gaining access to the donor insemination program but again had been denied access because of her status as an unmarried women.

After attempts at conciliation on the part of the Sex Discrimination Commissioner had proven unsuccessful, the complaint was, on 7 October 1997, referred to the Commission for inquiry.

Pursuant to section 67 of the Act I have directed that the names of the complainant and first respondent be suppressed.

2. LEGISLATIVE FRAMEWORK

The relevant provisions of the SDA read:

6 Discrimination on the ground of marital status

(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the marital status of the aggrieved person if, by reason of:

(a) the marital status of the aggrieved person; or

(b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person;

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

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

(3) This section has effect subject to sections 7B and 7D.

5"> 22 Goods, services and facilities

(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy:

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

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section binds the Crown in right of a State.

3. PRELIMINARY OBJECTION

Shortly prior to the hearing of this matter the complainant applied to have a further respondent added, it being a fertility clinic in Albury operated by a company associated with the first respondent. Because of the lateness of the application, delays would have resulted from complying with the procedural requirements necessary to satisfy both the standards of procedural fairness and the statutory conditions relating to the jurisdiction of the Commission laid down in the Act. I ruled that the Albury clinic not be added as a party but left it open for the complainant to pursue a separate complaint against that body.

In the course of the hearing Ms O’Brien sought to introduce evidence to establish the connection between the first respondent and the clinic. The basis on which she sought to do this was that because the first respondent was already a party to the proceedings he could be held personally liable under section 105 of the SDA for any unlawful discrimination on the part of the associated company which ran the clinic. I upheld the objection of the first respondent to the proposed course and ruled that the evidence in dispute should not be admitted because it was essentially bound up with the issues concerning the Albury clinic which I had decided could not be dealt with as part of this complaint.

4. EVIDENCE OF THE PARTIES

4.1 The complainant’s evidence
The complainant gave evidence in support of her complaint. This was both by way of a written witness statement and oral evidence. It is as follows.

At the time of the hearing she was 41 years of age and unmarried. From 1994 through to 1996 she had been employed in the Victorian Public Service and was also undergoing a full-time Bachelor of Science course at Victoria University. In the first half of 1994 she had made her decision to become a single mother and to see donor insemination services. In consequence, in July or August 1994, she had rung the general switchboard number at the Royal Women’s Hospital, the second respondent, and enquired about the donor insemination program. She had been put through to a person who, after the complainant had said she was single, had told the complainant that the donor insemination program did not accept single women because Victorian law did not permit it. Given that advice she decided to make inquiries about alternatives; in particular, whether treatment was available in Sydney. After further inquiries she was advised by a fertility clinic in Bondi that donor insemination services were available to single women there.

In September 1994 the complainant made an appointment with her general practitioner for the purpose of a referral to the Bondi clinic. Because of her work commitments and University exams she was unable to make a trip to Sydney until November 1994.

In the meantime, in September or October 1994, before she went to Sydney, she learnt that there was a clinic in Albury that might accept her. She had first rung the Royal Women’s Hospital believing that the Albury clinic was connected to it but had been given a number that she had then rung and spoke to the Albury clinic. When she explained that she was an unmarried person and had been refused donor insemination services in Melbourne because of Victorian legislation she was told that although the law did not prevent the Albury clinic from providing such services to single women the “ethics committee” would not allow sperm to be donated to single women.

She therefore proceeded with her arrangements to travel to Sydney for treatment. She was initially interviewed on 18 November 1994, and following acceptance into the program, she had a compulsory counselling session with a social worker from the program on 23 December 1994. She returned to Sydney on 20 January 1995 for initial monitoring of her ovulation. Because of her studies she was unable to organise another trip to Sydney until May 1995 and subsequently travelled to Sydney for three consecutive months for treatment. This however was unsuccessful.

The stress of travelling to Sydney for treatment took a toll on her health so she searched for alternative options in Victoria. In August 1995 she entered into an arrangement with a male friend who agreed to donate his sperm for her. In late January 1996 she had fallen pregnant. Although not aware of that fact, she saw the first respondent on 5 February 1996 for a consultation. The purpose of the consultation was to have further tests done to determine why she had trouble conceiving. She took the opportunity to explain to the first respondent that she had been seeking treatment in Sydney because she had been refused treatment in Melbourne. She then sought his advice about whether she was able to access donor insemination services in Melbourne and the first respondent had confirmed that she was ineligible for the Melbourne program because she was single. Victorian law did not allow treatment of women in her situation. She subsequently discovered that she was pregnant but in April 1996 following counselling the pregnancy was terminated.

In August 1996 she had learnt from a colleague that the Victorian Act, the Infertility (Medical Procedures) Act 1984, did not make it illegal to provide single women with donor insemination services. Rather the requirement to be married applied only in relation to IVF treatment. She sought legal advice which suggested that the prohibition on providing donor insemination services to unmarried women only applied to IVF procedures. She had therefore rung the first respondent again, seeking another appointment to clarify her eligibility. She had a second consultation with him on 13 August 1996. She told the Commission that at that consultation the first respondent had agreed that it not appear that donor insemination services to single women were illegal under the Victorian legislation but the ethics committee (which she took to be a reference to the ethics committee of the second respondent) did not allow him to treat her.

On the basis of the advice from the first respondent she made arrangements to return to Sydney for further testing in order to re-enrol in the Bondi program. She was unable to return for treatment until December 1996 and followed up in January and February 1997.

She also told the Commission that some time after she had begun the Sydney treatment she had tried an alternative arrangement. This had involved an old friend who had sought to become a donor at the Royal Women’s Hospital program. She had made an arrangement with him whereby they had attempted self-insemination on seven occasions. This had required three or four visits to Bendigo.

In January 1997 she had entered a stable relationship with a partner. This had led to her falling pregnant twice in June and October 1997 but in each case the pregnancy ended in spontaneous miscarriage. She had received advice from genetic counsellors and infertility specialists that the latter events were most likely due to her advancing age. She had first sought donor insemination services when she was 37 years old but, she contended, chances had lessened in the intervening four years.

In support of her claim she furnished documentary materials to the Commission. These mainly related to the expenses of having to travel to Sydney.

In cross-examination by Mr Ruskin for the first respondent the complainant said that she had approached one person prior to her phone call to the Royal Women’s Hospital asking if he would be a donor. This would definitely not have been before July 1993. She said she was not aware before her approach to the Royal Women’s Hospital that she could not be guaranteed artificial insemination services. She conceded that where she referred in her written statement to the first respondent mentioning an “ethics committee” she had understood that to refer to one set up by the Royal Women’s Hospital. It was in fact a reference to a committee set up by the first respondent’s own clinic.

She also agreed that there had been a number of pressures and stresses in her life which were significant during the time before she made her first phone call to the Royal Women’s Hospital. The termination of her pregnancies in April 1996 and two miscarriages during 1997 had also caused her distress, as had having to go to Sydney for treatment.

In further cross-examination she said that in December 1993 when she first considered means to have a child she was 37 years old. She did not think, however, that at that stage she might have been infertile or had difficulty conceiving. In December 1993 she had commenced regular counselling sessions with Ms Lesley Curran. These had continued throughout the period in which she had been travelling to Sydney for treatment. When she had begun that treatment she had been told that there was about a 20% chance of becoming pregnant for each attempt. By that time she was 38 years of age. Six attempts were made in the course of the Sydney treatment.

In addition to these, between August 1995 and January 1996, she had made seven attempts by way of access to the private donor in Bendigo. By the time the last attempt had occurred she was nearly 40 years of age. It was as a result of that attempt that she was pregnant at the time she went to see the first respondent in February 1996.

After her termination in April 1996 she had been advised by Professor Wood of Monash University that she could commence further attempts to become pregnant when she felt ready to do so. She had returned to Sydney for treatment in August 1996, following her approach to the first respondent and her disappointment about not being able to receive treatment in Victoria. When she had gone to the first respondent in August 1996 it was to find out whether the Victorian policy had changed and to request to be accepted into the donor insemination program.

Between August 1996 and December 1996 she had been busy working three days a week with the Department of Human Services and studying full time as well. At the end of January 1997 she had formed a permanent relationship with a friend and arising from that relationship she had been successful in becoming pregnant in June and October 1997. She had been informed by Professor Wood that the miscarriages following these pregnancies were probably due to her age.

The Commission also took into evidence a witness statement of Mr Christopher Leach generally supporting the complainant’s case.

4.2 Evidence for first respondent

No evidence was led for the first respondent.

4.3 Evidence for second respondent

Dr Andrew Speirs was called to give evidence on behalf of the Royal Women’s Hospital. He is an expert on reproductive endocrinology and infertility and had worked as a consultant in the Reproductive Biology Unit of the Royal Women’s Hospital since 1977.

He explained that most of the doctors staffing the Royal Women’s Hospital practised privately and were employed by the Hospital on a sessional basis. Persons attending the programs were patients of the Hospital, not of the consultants. As the largest specialist women’s hospital in Victoria the Royal Women’s Hospital had received a large number of cases referred from other specialised hospitals after 1984 when the Infertility (Medical Procedures) Act had been passed. The Hospital had been required to apply to a Standing Review and Advisory Committee for approval to provide certain procedures and in due course the Hospital had received approval from the Minister to undertake those designated procedures. This included treatment of patients with in-vitro fertilisation and donor insemination services. Approvals granted by the Minister to the Hospital were current in the period between July 1993 and July 1996. Further, the 1984 Act provided for persons to be designated officers of a hospital and Dr Speirs was such an officer. This rendered him liable to prosecution and penalty if the Hospital acted in breach of the 1984 Act.

Dr Speirs stated that as far as he was aware all relevant hospitals and centres had striven to comply with the Victorian legislation from 1984 onwards. It was the understanding of those responsible in the Royal Women’s Hospital that under the 1984 Act the Hospital could only provide donor insemination services to a married man and woman. This was because the Act said that consent had to be obtained from the woman and her husband.

On occasions the Hospital had sought legal opinion in relation to certain matters such as a request to export sperm for a single woman who wanted to use it in Tasmania. The legal advice was to the effect that the Hospital could not do that because it was not permitted. Of those concerned with the administration of the program at the Royal Women’s Hospital no-one had any doubt about the Government’s policy in respect of artificial insemination for single persons.

Regarding the interpretation of the 1995 Act Dr Speirs said his understanding was that the new Act stated quite clearly that the relevant procedures could only be provided to male and female persons who were lawfully married, though this had been amended in December 1997 to include the case of a man and woman in a genuine domestic relationship. His understanding was that so far as eligibility for artificial insemination services was concerned the 1995 Act had not relevantly changed the situation.

Explaining the process for selecting persons for artificial insemination Dr Speirs said that there would first have to be an appointment to discuss with a person seeking treatment what the problem was, followed by an examination involving tests to establish why a couple hadn’t been able to achieve the desired outcome. An assessment would be made about the likelihood that a person would be able to achieve pregnancy. There would then have to be at least one or more consultations with doctors and counsellors. Tests would have to be done to establish whether the treatment would involve a waste of donor sperm, it being in short supply. There was a considerable waiting list for access to treatment. Age started to become a consideration around 36 ½ to 37 years. At that stage there would be a steady decrease in a woman’s natural fertility because her eggs were not as suitable. If pregnancy occurred there would also be an increase in the natural miscarriage rate. By the age of 42 this normally would have risen to about 50%. From 40 years onwards a woman’s fertility is generally much lower and the spontaneous miscarriage rate is fairly high due to poor quality eggs. Between the age of 37 and 40 to 42 there would be a slow decline in fertility so that there was not enormous change between the ages of 37 to 40.

Dr Speirs also said the Hospital had to operate within a constrained budget situation. A further consideration in providing donor insemination services was that infertility procedures in Australia were supervised by the Reproductive Technology Accreditation Committee (RTAC). Accreditation by that body was necessary to ensure provision of expensive drugs needed to stimulate ovulation. Without such accreditation provision of drugs could cost a person several thousand dollars.

The actual treatment with sperm involved it being frozen in expensive machines to lower the temperature and suspension in liquid nitrogen tanks. Frozen sperm was a very scarce resource. In part this was because it was hard to get donors to provide sperm. All donors required testing. Public patients did not pay for the treatment nor the investigations in relation to it, though they did pay for drugs.

Dr Speirs was aware that the first respondent was a consultant at the Royal Women’s Hospital and also conducted a private practice.

Cross-examined by Mr Ruskin for the first respondent, Dr Speirs said that it would not be possible for a patient to access donor insemination at the Hospital unless it was satisfied that the relevant counselling had taken place. Following investigation by a consultant a person would be put on a waiting list. Access to treatment would depend on the person complying with the Hospital’s regulations and procedures laid down under State law. This would include the requirement that a woman be lawfully married. A consultant with a patient who was a single woman would not be able to have that person treated by way of artificial insemination at the Hospital. Dr Speirs confirmed that the only thing that would stop such treatment was the Victorian law.

Cross-examined by Ms O’Brien, Dr Speirs said that he had never heard anyone express any doubt about the requirement that a person had to be lawfully married before receiving treatment. He agreed that any person ringing up the Hospital for treatment with donor sperm would be told that they had to be married, referring to an actual incident that had occurred at the time of the hearing. A person ringing up would be told straight out they would have to be married under the legislation.

Questioned about his understanding of the legislation, Dr Speirs agreed that he had never sought a specific legal opinion to confirm whether his understanding of the law was correct. Advice had only been sought in relation to a specific case of providing donor sperm to a single woman.

Dr Speirs agreed that the fall in potential fertility was significantly greater between 40 and 42 than it was between 36 ½ and 40.

He confirmed that the 1995 Act had been fully proclaimed on 1 January 1998 although parts of it had been put into operation earlier. The part relating to the definition of ‘married woman’ in the Act had not been proclaimed until 1 January 1998. He said that if the prevailing interpretation of the legislation was held to be incorrect, there would still be a problem in that donors who had provided sperm up to that point of time would have done so on the understanding that it was only to be used for married couples.

5. SUBMISSIONS OF THE PARTIES

5.1 The complainant’s case.

For the complainant, Ms O’Brien submitted that there had been a clear act of discrimination on the part of the second respondent in that it had, on the ground of the complainant’s status as an unmarried woman, refused to provide her with donor insemination services. The refusal arose from the fact that when she had rung the Hospital she had been told that as she was single the service was not available to her. This constituted a refusal of treatment because there was a filtering mechanism in operation at the point of first contact with the Hospital, namely someone who was authorised to speak for the Hospital and indicate to enquirers that artificial insemination would not be provided to single women. Put another way, the advice given by the person who answered the phone was anticipatory of a constructive refusal that would have been given if the complainant had insisted on taking the matter further. On its simple analysis, the effect of the advice was that the complainant was told unequivocally that she was not able to receive the treatment she sought. It was a reasonable inference from the fact that persons associated with the Hospital who gave information about the infertility services were stating the Hospital’s position, namely that artificial insemination services were not available to persons such as the complainant. Ms O’Brien contended that it was unreasonable to expect the complainant to have done more by way of seeking formal confirmation that she would be denied access to the fertility program. Put shortly the complainant was booted out at the first base.

With respect to liability for discriminatory conduct, the complainant contended that even if the Hospital had an honest and reasonable belief that the relevant Victorian legislation precluded it from providing the service, that could not affect liability. Even if it went to damages the complainant contended it was not relevant in that respect either.

Whether it was legally open to the Hospital to provide the services or not turned essentially on the requirement in section 18 of the 1984 Act which specified that there had to be counselling for the woman and her husband. Ms O’Brien contended that the provision was an enabling one and the requirement of counselling for a husband was only relevant to the extent that a woman had one. If she did they both had to be counselled. If she did not there was no such requirement for a partner to be counselled. For that reason it was open to both the Hospital and the first respondent to provide the service sought by the complainant. In that regard, the conditions attached to the licence granted to the Hospital on 12 July 1993 did not make it a requirement that the Hospital not provide donor insemination services to single women.

Ms O'Brien submitted that the denial of services by the second respondent occurred at a critical time. When the complainant first approached the Hospital for services it was before she had turned 40. That was significant given that her rate of fertility decline was better before she turned 40 than in the period between 40 and 42.

Ms O’Brien further contended that the complainant's economic loss attributable to the Hospital's denial did not terminate in August 1996.

Concerning the first respondent, Ms O'Brien submitted that the complainant saw him in his private capacity in February and August 1996. It was not an answer to the allegation of discrimination that his refusal to provide the service arose because it could only be provided by an authorised hospital. Section 17 of the 1984 Act did not prevent him providing infertility services any way he liked. There was nothing under the Act to prevent him providing the service to the complainant in his rooms. It was reasonable to infer that he would have done so if she had not been a single person. Accordingly, the Commission should hold that the first respondent was liable from August 1996, in conjunction with the Hospital, for his refusal to provide services to the complainant. This adverse inference should be drawn against the first respondent because he had not given evidence. Had he been called to give evidence it was reasonable to infer that he would have had to concede that if the complainant had not been a single person he would have provided the services to her privately or at the hospital.

5.2 Submissions for the first respondent

For the first respondent Mr Ruskin submitted that there was no relevant refusal of services to ground an allegation of unlawful discrimination. Put shortly, the first respondent’s statements and actions directed to the complainant were insufficiently clear to constitute a refusal or denial. Something fairly explicit needed to have been expressed. All he had done was inform the complainant of the relevant Victorian law.

As an extension of this Mr Ruskin submitted that in a circumstance where a finding of discrimination against a professional person could entail substantial damage to that professional's reputation, whilst the ordinary standard of civil proof, namely satisfaction on the balance of probabilities, was applicable, given the seriousness of a finding of discrimination, the Commission should be cautious before concluding there was such discrimination. Even if this was not a situation that called for, perhaps, strict scrutiny along the line of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, a high degree of precision was required in terms of identifying a relevant refusal.

With respect to whether the Commission could draw an adverse inference that, in view of the fact that the first respondent had not himself given evidence, the first respondent would have treated the complainant privately if she were not a single person, Mr Ruskin submitted that such an inference was not permissible because it would be speculative. Because it was speculative there was no sufficient basis to found such an inference in the first place. On a correct analysis of the complainant’s evidence there was nothing to support a conclusion that she had gone to see him for the purpose of receiving donor insemination treatment.

Mr Ruskin also submitted that the first respondent lacked a capacity to provide the client services insofar as he was unable to access sperm for donor insemination otherwise than through the Royal Women's Hospital. On the basis of the evidence of Dr Speirs it was clear that unless a consultant conformed with the policy and procedures of the Hospital there was no way to access the requisite procedures. There being no capacity to do so, discrimination by way of refusal was legally impossible. As a matter of causation the consultant would not be able to effectively provide the treatment without access to the procedures and personnel provided by the Hospital. The law does not compel the impossible.

Mr Ruskin submitted that causation was also relevant in the context of the 1984 Act. Legal impossibility was also a ground of defence, United Dairies (London) Ltd v Beckenham Corporation [1963] 1 QB 434 at 445. If the ground for refusing to provide the service was not because the complainant was single, but rather because the Act forbad the provision of the donor insemination services to a single person, there could not be liability for unlawful discrimination. In that regard Mr Ruskin submitted that the proper interpretation of section 18 of the Act was that a person should not carry out the procedure of artificial insemination unless the woman’s husband had been counselled.

Section 18 provides:

A person shall not carry out a procedure of artificial insemination unless the woman in relation to whom the procedure is carried out and her husband have received counselling, including counselling in relation to prescribed matters, from an approved counsellor.

Section 18 stands in contradistinction to provisions such as paragraph 12(5)(b) which so far as relevant reads:

A person shall not in a procedure to which this section applies use an ovum removed from a woman (in this sub-section called “the donor”) unless, before the ovum was removed . . the husband if any of the donor consented in writing to the use of the ovum in such a procedure . .

(See also paragraphs 11(5)(c) and 12(5)(c)).

Given that section 18 was not qualified by the expression, "if any", section 18 should be read strictly in exclusive terms, namely that a woman receiving treatment could only do so if she had a husband and that husband had been counselled.

Importantly, Mr Ruskin contended that submissions of the kind he was making had not been made to the Commission in the earlier case of MW, DD, TA and AB v The Royal Women’s Hospital, The Freemason’s Hospital and the State of Victoria (decision of Commissioner Kohl, 5 March 1997). In that case Commissioner Kohl had decided that the two hospital respondents had no defence to a complaint of sex discrimination based on compliance with the 1984 Victorian Act.

Mr Ruskin urged the Commission to interpret sections 6 and 22 of the SDA consistently with the principle "in bonam partem", that is, they should be read only to apply to situations of refusal which do not require the discriminator to break a law of the State at the same time. A factual finding of discrimination should not be made, therefore, in a situation where in order to comply with the provisions of the SDA a person would be forced to break the law.

Further, section 22 of the SDA should not be read in a way which would require what is legally impossible.

The decision of Commissioner Kohl was distinguishable both on its facts and because the arguments put in the present case were not canvassed in the earlier decision. A point of distinction between the present case and the earlier one was that, on the facts, the complainants in the earlier one had been unequivocally refused treatment whereas in the present case there was no such clear refusal.

Turning to damages, Mr Ruskin submitted that if a finding of discrimination was made against the first respondent, any damages flowing from it should be narrowed to the period August 1996 to January 1997 because thereafter the complainant had a partner. Furthermore, even if she had been accepted for treatment there was no guarantee it would have been provided in that period. There was, for one thing, something in the order of a three to six month waiting period for treatment so there was no certainty that she would have had an opportunity to have received treatment by January 1997.

With respect to special damages the first respondent submitted that costs for car-hire to go to Sydney should be disallowed given they were more expensive than if the complainant travelled to Sydney by plane.

5.3 Contentions of second respondent

The second respondent’s principal contention was that there was no act of refusal on its part to bring the matter within section 22(1)(a) of the SDA; more precisely, there was no refusal of any infertility procedure including donor insemination services by the Hospital in July or August 1994 when the complainant made her initial telephone call enquiring about the availability of artificial insemination services. Rather, all that was provided by the person who answered the phone was information which relevantly was to the effect that, since the complainant was unmarried the hospital was unable to provide the service because Victorian Law would not allow it. No request or demand was made for any relevant treatment (in the sense that that expression is used in section 6 of the SDA) either by way of an appointment with a doctor or in the form of provision of the services. Accordingly, there was not in fact any denial of the same, such that it could constitute a refusal of the relevant service.

The second respondent’s alternative contention was that even if there was no problem about the complainant’s marital status, there would be further conditions that the complainant would have to satisfy before artificial insemination services would be provided. This would start with the requirement that there be a state of infertility and that in practical terms it would be reasonable to go to the effort of providing the service. The complainant would have to have shown some capacity for a successful pregnancy and this would have required investigation and assessment. In the circumstances it would have been unlikely that the complainant would have been offered the services she was seeking.

The need to satisfy these other conditions about suitability for treatment also was relevant to the issue of what loss the complainant has suffered. In fact, because she was nearly 38 years old when she made her phone call to the Royal Women’s Hospital she was already at a stage where her prospects of successful treatment were not likely to improve and time would be running against her. This would include the need for the Hospital and her consultant to spend further months on investigative procedures.

Regarding the complainant’s allegation that having to go to Sydney for treatment because she was unable to obtain it in Melbourne caused her a great deal of distress, Ms Young submitted that much of the stress to which the complainant was subject arose from her own difficulties of maintaining employment while studying full-time together with other factors. In the result any damages for compensation for stress should be minimal.

So far as specific costs were concerned, while the six trips to Sydney might be compensible that should only be so for the period up to 30 July 1995. After that stage the complainant had commenced a donor arrangement with a friend and in fact had approached the first respondent. She had never come back to the Royal Woman’s Hospital to raise the issue of treatment through it again.

More specifically, Ms Young submitted that the money the complainant spent on car hire was unnecessary, as airfares to Sydney would have been considerably cheaper.

6. DISCUSSION OF ISSUES AND FINDINGS OF FACT

It has not been contested that the provision of donor insemination services constitutes a service for the purposes of the SDA.

Both respondents raised as the central factual issue the question whether there was a relevant refusal of services, on each of their parts, within the meaning of section 22 of the SDA. For each respondent, of course the relevant refusal is to be determined at different dates. What was common to both respondents was that they contest that what was said or expressed to the complainant on the relevant occasions was sufficient to crystallise as a refusal under the SDA. In the case of the first respondent it is contended that whatever was said to him was insufficiently precise to constitute a request or demand for service and hence any response that he made simply constituted factual information and did not amount to a refusal. In other words a refusal presupposes an articulated request or demand in the first place. In the case of the second respondent it is submitted that the response of the person who answered the phone on behalf of the Hospital was purely informational and could not be taken to be a refusal unless the complainant took the matter further and formulated her enquiry as a specific request or demand for the service.

To approach each in chronological order, I start with the issue whether I can find that a refusal occurred on the part of the second respondent at the time when the claimant made a telephone enquiry to someone at the Hospital, and that person responded to the effect that if the complainant was a single person, the donor insemination services would not be available.

6.1 Liability of the second respondent

In the case of the second respondent, the relevant events took place at a date in July/August 1994. I find as a fact that in July or August 1994 the complainant did telephone the Hospital and that she did seek advice as to whether she would be entitled to access the donor insemination services provided by the Hospital. I further find that whoever responded to the complainant’s telephone enquiry did convey to the complainant that the services would not be available to her because she was a single woman. Though the complainant's request was cast in the form of an enquiry I do find that the response amounted to a constructive refusal to provide the services she was seeking. It should have been obvious to whoever answered the call that the effect of the response would be taken to indicate the Hospital was not prepared to provide the service to a woman such as the complainant.

In coming to that conclusion I take the view that the SDA is to be construed with a degree of generality for the benefit of those who fall within its intended area of protection. Hence I am not prepared to give the concept of refusal a narrow or pedantic meaning. It is clear that what was conveyed by the person who answered the telephone represented the official policy of the Hospital. This was confirmed by the evidence of Dr Speirs who referred to an instance that had occurred on the day of the hearing where the person answering a request for information along the same lines of the complainant had made a similar response to that in her case. Though later in time it confirms that the Hospital accepted that such a response was not inappropriate. It would not be contradicted if the complainant had sought to take the matter further. Nothing has been put to me in evidence to suggest that what was conveyed to the complainant diverged in any respect from what would have resulted had she persisted and formulated her request more specifically. Further, there is nothing before me to suggest that the person who answered the phone was in any respect acting outside the scope of their authority in conveying the answer that was made. It can reasonably be assumed that, organisationally, the Hospital must have been aware of how its staff would respond at the first instance to such an enquiry and how it would be answered. It is also reasonable to assume that the Hospital would be aware that the likelihood of getting such advice would be to cause someone in the situation of the complainant not to enquire further. I therefore find that the second respondent, through its employee, did make a response to the complainant that was sufficient to preclude the complainant making further attempts to obtain the services she sought from the Hospital. As such it amounted to a refusal for the purposes of section 22 of the SDA. I further find that the refusal of the Hospital was based on a policy that denied single women access to the relevant service and that the Hospital therefore treated the complainant differently from and less favourably than applicants for donor insemination treatment who were married. On that basis the conduct of the Hospital amounted to discrimination and, as a result, I am satisfied that the refusal amounted to a breach of section 22 of the SDA.

6.2 Liability of first respondent

It cannot seriously be contended for the complainant that when she visited the first respondent on 5 February 1996 anything he said or did constituted a refusal for the purposes of the SDA. It is clear that she went to see him for the purpose of ascertaining why she might be having difficulties becoming pregnant by a private donor. As it turned out she was in fact pregnant at the time. The issue is, rather, whether anything he said or did on 13 August 1996 amounted to a relevant refusal.

The Commission only has the advantage of her evidence in relation to what transpired on that occasion. I accept that she sought to convey to him her understanding that, properly read, the Victorian Act did not prevent medical practitioners providing donor insemination services to a single woman. There is insufficient evidence, however, to satisfy me that the first respondent necessarily agreed one way or another with that proposition. On the most likely view of the evidence it would appear that he indicated that he was unable to provide the services she was seeking because he could not access the relevant procedures without the approval of an "ethics committee". There is some ambiguity about what ethics committee he was in fact referring to. In that case, the construction I would put upon his response is that he was in effect indicating to the complainant that whether or not he was willing to perform the relevant treatment, he was unable to do so because it did not lie within his power alone. It required the concurrence of an external decision-maker.

I turn to Ms O'Brien’s submission that I should draw an inference from the fact that the first respondent was not prepared to give evidence himself that even if he was unable to provide treatment at the Royal Melbourne Hospital he was able to do so at his private clinic. It followed in her submission that if I accepted that the 1984 Victorian Act did not prevent him from doing so, he should be regarded as having constructively refused to carry out the procedures at his private clinic.

I am not, however, prepared to draw such a negative inference from his failure to give evidence. There is insufficient evidence provided by the complainant or by Dr Speirs, for that matter, to provide a toehold for such an inference. Rather, I accept the submission of Mr Ruskin that it would be purely speculative to assume that the first respondent would have been able to provide the service at his private clinic. In that respect while I would not approach the matter as falling within the principle enunciated in Briginshaw (above), I am not prepared to draw an adverse inference on a flimsy basis.

Moreover, having the advantage of the evidence of Dr Speirs I take the view that, having regard to the special technological procedures for freezing and storing donors’ sperm, the administrative controls over that sperm were such that the first respondent could only have had access to it if the Hospital was involved and it was prepared to co-operate. On the basis of Dr Speir's evidence it is quite clear that the consent of the Hospital would not have been forthcoming. I find therefore that it was primarily the policy of the Hospital, founded on its belief that it was legally precluded from providing donor insemination services to a single person such as the complainant that barred the first respondent from himself satisfying any request she may have made that he provide treatment to her.

I use the term “request” recognising that she did not frame her enquiry specifically as such. It probably would have been obvious to the first respondent that the complainant was putting a proposition to him that he was not barred by the Victorian Act from treating her and that being the case, she was in fact seeking the services in question. I am also satisfied that the effect of what he said by way of response was a denial that he was prepared to provide those services in the sense that he was unable to provide the services.

Although this may be viewed technically as a refusal the question arises whether it amounts to a refusal for the purposes of section 22 of the SDA. In that regard I accept the submission of Mr Ruskin that there cannot be a refusal for the purposes of section 22 where one declines to provide a service that it is impossible for one to provide (in this case because of a preclusive policy by the Hospital). This is not to say that a belief on the first respondent's part, if he had such, that it was unlawful for him to provide the service would have provided an excuse. But since I find that as a practical matter he could not provide the service because the Hospital was not itself prepared to grant access to the necessary facilities, particularly scarce sperm, I am unable to find that the first respondent acted contrary to section 22 of the Act. Therefore I find that he is not liable in terms of having unlawfully discriminated against the complainant. That being the case I dismiss the complaint so far as it relates to him.

This then requires me to deal with Ms Young's contention that the act of the first respondent in not agreeing to provide the services to the complainant in August 1996 was effectively a novus actus interveniens that terminated the liability of the Hospital. The Hospital was not itself involved in the discussion between the first respondent and the complainant and had no opportunity of considering its position. However to the extent that the first respondent was acting on a view that he, as a consultant of the Hospital, knew to be the case that had he in fact sought confirmation from the Hospital, access to its facilities would have been denied, I find that the effective cause of his denial of services to the complainant flowed from the Hospital's policy. This is not to say that he was an agent for the Hospital. But the complainant had approached him, in my view, as a consultant to the Hospital and his inability to satisfy her request was because he could not act contrary to the Hospital's policy. I therefore find that the Hospital's liability for breach of section 22 of the SDA continued to affect the complainant after August 1996 up until she entered a relationship with a man at the end of that year or early in 1997.

6.3 Defence based on the Victorian Act

I now turn to the complex legal issue about whether either respondent could rely on the 1984 Act, either as providing a defence by way of foreclosing the operation of the Commonwealth’s SDA, or as a mitigating factor to be taken into account in reducing the quantum of damages awarded.

So far as the latter is concerned, I regard damages as compensatory and not capable of being diminished on account of reasonable conduct on the part of a respondent.

Turning to the legal effect of the 1984 Act, the second respondent maintained that in the circumstances, it and its officers were operating under a belief that they had no option but to comply, legally, with the Act. It points to the fact that that this was confirmed to a limited extent by legal advice it sought in relation to circumstances such as whether sperm donated in Victoria could be supplied to a single woman in another State for fertilisation treatment. The legal advice apparently did not address the particular circumstances of the application of the SDA. Had more comprehensive advice been sought it is highly likely that the Hospital would have been advised either as a matter simply of the construction of the Commonwealth Act, but also probably having regard to the likely inconsistency of the two Acts and the consequent invalidity of the State Act by virtue of section 109 of the Commonwealth Constitution, that it would be acting in breach of the SDA if it were to refuse donor insemination treatment to unmarried women.

That to me is the crux of the issue. Much attention was devoted by all counsel to the issue of whether or not, in its terms or to the extent that its intention was discernible, the Victorian Act did or did not permit donor insemination treatment of single women by the Hospital and associated consultants. Reduced to its simplest compass, the issue turns essentially on the construction to be put on sections 17 and 18 of the 1984 Act. Ms O'Brien emphasised that section 18 should be read, where it refers to the requirement for both a woman and her husband to receive counselling in accordance with the Act if the relevant treatment is sought, as comprehending only the circumstance where a woman seeking treatment is married. That distributive reading would not however apply where a woman has no husband. Hence it would be open for the other provisions of the 1984 Act to be read consistently so as not to foreclose and make unlawful the provision of treatment to a single woman.

If it was essential to decide, I would incline to the view that the Act probably is directed to confining treatment to married couples (including, since the amendment in 1997, to de facto partners). In that regard I accept Mr Ruskin's submission that a distinction is to drawn between section 18 and other provisions such as paragraphs 11(5)(c), and 12(5)(b) and (c) of the Act which expressly refer to “spouse” or “husband” “(if any)”. The resort to the latter particularisation would suggest that where the expression “if any” is used in relation to a kind of treatment, it was not confined at the time to married couples. This approach entails an application of the maxim expressio unius exclusio alterius. If necessary, I agree with the analysis advanced by the respondents to the effect that overall the Act was premised on the proposition that donor insemination services were not at the material time to be made available in Victoria otherwise than to a married couple. I take that view as a matter of inclination rather than conviction and I would certainly concede that the propositions advanced by Ms O'Brien are arguable.

But to arrive at that conclusion about the construction of the 1984 Victorian Act does not as I see it determine the matter before me. In the context in which I must determine this complaint my function is to apply the relative provisions of the SDA. The simple, and in my view the correct assumption here is that the second respondent was bound by the provisions of the SDA, including specifically sections 6 and 22. As I have found above, the Hospital was acting contrary to section 22 in adopting a position of denial to the complainant and any other single woman of donor insemination services, thereby treating them in a discriminatory way compared to a married woman. The denial of the services to the complainant involved an administrative decision that in turn flowed from a policy adopted by the second respondent in reliance on its view of the 1984 Act.

What I am concerned with is simply the administrative and executive policy of the second respondent to deny services to single women, which crystallised in this particular case as a refusal, conveyed at the point of the complainant's initial telephone contact with the hospital, and a relevant refusal for the purposes of section 22 of the SDA.

I make no ruling as to the constitutionality either of the Commonwealth or State Act. So far as the Commonwealth Act is concerned I am bound to act on the presumption that it is constitutionally valid. In fact no contrary proposition was put to me by either respondent. It is also neither competent nor appropriate for a tribunal such as this Commission to make rulings on the constitutionality of the Victorian Act. (Re Adams and the Tax Agents’ Board (1976) 1 ALD 251). The Commission is not a body capable of exercising the judicial power of the Commonwealth which it would have to do in order to determine issues of constitutionality (Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1994) 183 CLR 245). It is true of course that to the extent that the SDA prohibits denial of access to treatment which the Victorian Act itself makes unlawful if provided, an issue under section 109 of the Commonwealth Constitution necessarily arises. To the extent of inconsistency between the two Acts the Commonwealth Act, of course, prevails. However, it is not the function of this Commission to make that determination. As stated above its function is simply to apply the Commonwealth Act and in that regard the existence and operation of the Victorian legislation upon the second respondent provides no excuse or defence to the complaint before me.

The fact that my jurisdiction extends simply to applying the provisions of the SDA to the facts and evidence before me also provides an answer to the contention of Mr Ruskin to the extent that I should read the Victorian Act in bonam partem. That is, I should read section 22 of the SDA as not intended to operate in circumstances which would require a person such as either respondent to act in breach of the State law. The construction in bonam partem might well be appropriate if the Commission was solely concerned with the application of two State Acts or two Commonwealth Acts. But the Federal context in which the SDA operates, in my opinion, confines the operation of section 22 to a uniform operation throughout Australia. Whilst views may differ, the preferable reading as I see it is that it is unlikely that the Commonwealth Parliament, in enacting the SDA to implement its international obligations, contemplated that the SDA should operate differently in different States according to the legislative circumstances of each particular State. To accept the submissions of the first respondent would be to elevate the State Act over the SDA.

7. DAMAGES

7.1 General Damages

Having found liability I should first address the issue of general damages for pain, suffering and loss of enjoyment. It is evident to me that the refusal of the Hospital to provide donor insemination services to the complainant in the period between July/August 1994 and the end of 1996 did in fact cause the complainant a great deal of anguish, disappointment, and frustration. It also entailed a degree of unnecessary hardship and dislocation insofar as she had to seek alternative treatment at the Sydney clinic. As against this I accept the submission of counsel for the second respondent that some of the stress suffered by the complainant in that period was self-imposed. This was due to the fact that she was pursuing her quest for pregnancy and a child at a time when she had an intensive and demanding public service job (although not full-time throughout the period), compounded by the fact that she was also attempting a full-time program of study. Nevertheless, her stressful situation was aggravated by the considerable stress and disruption occasioned by the refusal of donor insemination services.

Regarding the disappointment and frustration she suffered due to the fact that she was not able to pursue her desire to have a child, the respondents laid much emphasis on the fact that, given her history of miscarriages since she first sought treatment, it was unlikely in any event that she would have been able to successfully bear a child at her age. That, however, in my view, misses the point. The central issue was whether the services were accessible to her; not whether treatment would have been provided or would have been successful. It is the denial of access at the threshold that was the immediate source of her frustration and also the cause of her having to undergo the difficulties of seeking alternative treatment in Sydney or attempt pregnancy through a donor in Bendigo.

It is also relevant that pain and frustration that she endured persisted over a period of time (inclusive of the Sydney visits). In my opinion her anguish and stress was not inconsiderable. I would assess quantum at $6,000.

Although I accept that the second respondent was acting in good faith under its belief that it and its officers would be in breach of the 1984 Act, I do not consider that that requires me to diminish that amount. There is no basis here of aggravation on the part of the Hospital. If there were, good faith might be relevant. General damages under the SDA are by way of compensation and are not penal. Hence mitigating circumstances on the part of the Hospital should not reduce the amount.

7.2 Special Damages

In my view it was reasonable for the complainant to seek, by way of alternative means of attempting pregnancy, firstly to try to become pregnant through personally accessing a voluntary donor at Bendigo (entailing visits to that city) and secondly, by seeking treatment through the Sydney clinic.

Although, whether or not treatment would have been successful in allowing her to have a child during the relevant period is not relevant to the issue of general damages, I must consider whether it is a factor that should be taken into account in relation to special damages. If, to use an extreme illustration, the complainant had been 50 years of age when she sought treatment in Sydney, it could fairly be objected that her seeking treatment out of Victoria would have been most likely futile. In the circumstances of the complainant I must have regard to the evidence of Dr Speirs that if, notionally, she had been a married person who the Hospital would have taken into its program, she would still have had to undergo investigation and counselling which would have taken a period of months. Further, she would have been assessed for suitability in the context where the amounts of donated sperm were extremely limited and had to be rationed according to prospects of success. These factors would have operated in a circumstance where at the earliest she was around 37 years of age. There would already have been a decline in her fertility and, after a reasonably stable diminishing period, her fertility would probably have started to reduce further from around the age of 39. Hence, it was submitted, on the basis of Dr Speirs' evidence there was no guarantee that she would have been treated in Melbourne even if initially accepted into the program.

As against this, I find that in the relevant period, and certainly at the beginning, she was not at an age where her chances of success were so substantially diminished that there was no point for her pursuing treatment in Melbourne, Sydney or for that matter, Bendigo. In the circumstances, it is a fact that she was accepted into the Sydney program after counselling and assessment and did successfully conceive (though her age was a factor in her suffering miscarriages). Nevertheless, the advice she sought from Professor Woods, taken in conjunction with the evidence of Dr Speirs, indicates that though her age was a factor in her conceptions resulting in miscarriages, there was a sufficiently realistic chance that she might have proceeded through a successful pregnancy, particularly had she became pregnant in the earlier stages of when she first approached the second respondent. I therefore accept it was reasonable for her to attempt to access the Sydney program.

It might be objected that so far as the Bendigo attempt is concerned she was adopting a natural method of conception and that she need not have left Melbourne for that purpose. However in the circumstances there were very limited opportunities available to her in Melbourne. She required contact with an appropriate and willing donor and in the circumstances procuring it by approaching a donor in Bendigo was not, in my view, unreasonable.

So far as her trips to Sydney were concerned, counsel for the respondents challenged the complainant’s claim for special damages on the basis of the differential between the cost of driving as against flying to Sydney. On the basis of the figures set forth in her initial claim (page 5, Referral Report) the amount for car expenses ($150) is generally lower than the airfares she claims when she travelled to Sydney by air and as such appears reasonable. Of course, when she did fly to Sydney there were, necessarily, taxi or other car hire expenses both to get to the airport in Melbourne and to proceed around Sydney. So a reasonable amount should be allowed in that regard in addition to the approximately $200 that it cost her in air flights at the time. No taxi receipts were provided but I am prepared to accept as reasonable $25 for taxis from her home to Melbourne (see page 26 Referral Report) and $15 for Sydney Airport to Bondi. I have made no allowance for accommodation in Sydney because she was privately accommodated there but have allowed a small amount for general living away from home expenses. I have also not accepted the cost of airfares claimed by her for 30 January 1997 as no explanation was given why the treatment was cancelled on that occasion.

As to her Bendigo expenses, again no substantiation of details have been given to the Commission. I am therefore left to make reasonable estimates that may be unduly conservative. I am prepared to accept the sum of $119 for accommodation for four visits (see letter received by Commission from complainant on 23 April 1998) but her claim for $475 for travel appears excessive and is not verified. I would only allow $200 in respect of that item, and nothing for the claimed extra counselling.

I am therefore prepared to allow the following amounts:

Sydney trips

(a) Airfares: 18/11/94 $189

20/1/95 $169

1/5/95 $289

30/6/95 $215

27/7/95 $200 (estimated)

23/8/96 $200 $1262

(b) Car travel: 23/12/94 $150

6/12/96 $150

1/1/97 $150 $450

(c) Taxis ($25 home to Melbourne Airport, $15 Sydney Airport to Bondi) $200

(d) Accommodation: 8 days by $40 $320

Bendigo trips (4)

(a) Accommodation: $119

(b) Car travel: 4 by $50 $200

TOTAL $2551

I have not included in these damages any allowance for expenses incurred in respect of 31 counselling sessions provided to the complainant by Ms Curran between December 1993 and October 1995. The complainant gave very general evidence that she engaged in these sessions largely because of her disappointment and sadness at not having a close and meaningful relationship and the lack of an opportunity to have a child. The complainant has proposed an apportionment of these fees. It may be the case that to some extent the counselling addressed her frustration at not being able to have access to treatment in Victoria but there is insufficient evidence to satisfy me that their continuance after August 1994 was wholly or partly due to the denial of donor insemination treatment by the Hospital.

8. REMEDIES

Accordingly, having found the first respondent did not contravene the Sex Discrimination Act 1984 I dismiss the complaint against him.

I determine that the second respondent has unlawfully discriminated against the complainant on the basis of her marital status by treating her less favourably as an unmarried woman than if she were a married woman, in denying donor insemination services to her during a period from July/August 1994 to January/February 1997, contrary to sections 6 and 22 of the Sex Discrimination Act.

I should say, however, that in making a finding of unlawful discrimination against the second respondent, and effectively against its responsible officers, I recognise that it and they were acting upon an honest, if not entirely reasonable, belief that it was precluded from offering donor insemination services by reason of Victorian law. As stated above, however, that mistaken belief, provides no defence to the complaint.

I award the following remedies:

(a) A declaration that the second respondent has unlawfully discriminated against the complainant as specified above;

(b) A direction that the second respondent provide a written apology within 28 days of the date of receiving this decision in relation to the denial by it of the services sought by the complainant; and

(c) Compensation of $8551 comprising –

(i) General damages in the amount of $6,000; and

(ii) Special damages of $2551, as specified above.

I certify that this and the preceding 30 pages

are a true copy of the Reasons for Decision of

Inquiry Commissioner Peter W Johnston

Associate:

Dated this 24th day of December 1999