Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619 (15 November 2000)

Last Updated: 15 November 2000

FEDERAL COURT OF AUSTRALIA

Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619

DISCRIMINATION LAW - disability discrimination - applicant refused service of alcohol, removed from club and deprived of membership of club - discrimination alleged on the basis of opioid dependence - whether opioid dependence a "disability" for the purposes of the Disability Discrimination Act 1992 (Cth) - whether Inquiry Commissioner gave consideration to whether the Club treated the applicant "less favourably" than it would have treated a person who was not opioid dependent in circumstances that were the same or not materially different - lack of evidence before Inquiry Commissioner as to relative treatment of members by the Club - meaning of "less favourable" - criteria of reasonableness and subjective intention not relevant

WORDS & PHRASES - "less favourable"

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Disability Discrimination Act 1992 (Cth) ss 4, 5, 10, 27

Human Rights Legislation Amendment Act (No 1) 1999 (Cth)

Anti-Discrimination Act 1977 (NSW)

Boehringer Ingelheim Pty Limited v Reddrop [1984] 2 NSWLR 13, applied

Hains v Leves (1987) 8 NSWLR 442, applied

Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, cited

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, cited

Perth City v DL (1994) 88 LGERA 45, referred to

WAYNE EDWARD MARSDEN v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION and COFFS HARBOUR & DISTRICT EX-SERVICEMEN & WOMEN'S MEMORIAL CLUB LTD

N 1107 of 1999

BRANSON J

SYDNEY

15 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1107 of 1999

BETWEEN:	WAYNE EDWARD MARSDEN APPLICANT
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT COFFS HARBOUR & DISTRICT EX-SERVICEMEN & WOMEN'S MEMORIAL CLUB LTD SECOND RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	15 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the first respondent be set aside.

2. The matter to which the decision relates be referred to the first respondent for further consideration.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1107 of 1999

BETWEEN:	WAYNE EDWARD MARSDEN APPLICANT
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT COFFS HARBOUR & DISTRICT EX-SERVICEMEN & WOMEN'S MEMORIAL CLUB LTD SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	15 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The applicant has sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") of a decision of the first respondent made under the Disability Discrimination Act 1992 (Cth) ("the DDA"). By a decision dated 30 August 1999, the first respondent dismissed three complaints made by the applicant against the second respondent ("the Club").

2 The applicant had complained that the Club had discriminated against him as a member of the Club by:

(a) denying him access to a benefit provided by the Club, namely the service of alcohol (s 27(2)(c) of the DDA);

(b) subjecting him to detriments, namely disciplinary action in the Club's Judiciary Committee, refusal of service of alcohol and removal from the Club after a minor incident which did not warrant such action (s 27(2)(e) of the DDA); and

(c) depriving him of membership of the Club (s 27(2)(d) of the DDA).

3 The Acting Disability Discrimination Commissioner concluded that the matter to which the alleged acts of discrimination related could not be settled by conciliation. He referred the matter to the first respondent (see s 76 of the DDA). Consequently the first respondent came under a duty to hold an inquiry into the complaints (s 79(1) of the DDA). The powers of the first respondent to hold the inquiry were exercised by the Hon William Carter QC ("the Inquiry Commissioner") (see s 77 of the DDA).

4 The first respondent has submitted to the jurisdiction of the Court save as to costs. It played no part in the hearing before me.

BACKGROUND

5 These background facts are taken principally from the reasons for decision of the Inquiry Commissioner.

6 The applicant is, and has for some years been, opioid dependant. He was formerly addicted to heroin. At the time of his complaint he had been a regular user of prescribed methadone, a synthetic compound used as a substitute narcotic in the management of heroin addiction, for approximately seven years. The applicant also suffers chronic hepatitis as a result of a Hepatitis C infection. This latter medical condition assumed some importance before the Inquiry Commissioner but is agreed to have no relevance on the present application.

7 At the time of his complaint, the applicant had been a member of the Club for some years. He had been a regular user of its facilities. He alleged that from late 1994 he had been the victim of a series of discriminatory acts by the staff of the Club and that ultimately, on 12 November 1996, the Judicial Committee of the Club, acting under the Club's Articles of Association, had expelled him from membership of the Club. The Articles of Association of the Club prevent the applicant from being readmitted to membership of the Club for a period of five years from the date of his expulsion.

8 The incidents which culminated in the applicant's expulsion from the Club began with an incident which occurred on 3 December 1994. Two youths who were not members of the Club were making a nuisance of themselves outside the entrance to the Club. They were in possession of a bicycle which was confiscated and later identified as belonging to the applicant. A syringe was found in a bag attached to the bicycle. It appears that the applicant believes that staff of the Club may have drawn a conclusion from the finding of the syringe that the applicant used illegal drugs.

9 On 4 January 1995, the applicant was observed by a bar supervisor at the Club acting in a manner consistent with his being intoxicated. Together with a friend who similarly appeared intoxicated, the applicant was asked to leave the Club premises. When interviewed and counselled by the Operations Manager of the Club, the applicant disclosed that he was opioid dependent and on a methadone program. He was told that being in the Club in "an affected condition" was unacceptable. The applicant claims that 4 January 1995 was a very hot day and that he was nauseated and fatigued after walking to the Club and not intoxicated.

10 The next incident occurred on 12 June 1996. On that day the applicant was reported as being "unsteady on his feet, ... slurring his speech and appeared severely affected by something". He said that he "was under the effect of methadone". The applicant was asked to leave the Club because of his condition. He did so although shortly thereafter he attempted to re-enter but was not allowed to do so.

11 On the next day, the Operations Manager of the Club wrote to the applicant requesting that he appear before a Judiciary Committee on 9 July 1996 "regarding behaviour unbecoming of a member". The behaviour was described as "repeated incident[s] of unsatisfactory behaviour despite warnings from Management the last being 12 June 1996". The letter stated:

"Your presence will be required at 6.30pm on that date in the Board Room of the Club. At that time, you will be able to hear the reports and have the opportunity to reply to the statement therein, and to show cause why your membership of this Club should not be suspended."

12 The applicant's appearance before the Judiciary Committee was in fact rescheduled to Tuesday, 13 August 1996 as he was not free to attend before the Committee on 9 July 1996. The reasons for decision of the Inquiry Commissioner contain the following findings in respect of the appearance:

"The proceedings at this meeting seem to have been relatively cordial and harmonious. The complainant fully disclosed matters relevant to his health and his use of methadone. A question was raised by the committee as to whether the complainant should consume alcohol whilst on the methadone program. Relevant medical opinion, which was not available to the committee, does not support the necessary abstention from the consumption of alcoholic beverages by one who is on the methadone program. However one of the members of the committee who apparently cited the experience of a family member who had a liver disorder, suggested abstention from liquor to the complainant who agreed that that was acceptable to him. As he said in the course of the inquiry such a suggestion was `irrelevant' as he drank very little. The committee at this meeting resolved to reinstate the complainant's membership (on 12 June 1996 the complainant's membership card had been confiscated upon his attempt to re-enter the Club) and it decided that he be given a verbal warning and that it be recommended to him that he not drink alcohol whilst on medication and on Club premises."

13 By letter dated 16 August 1996, the applicant was formally advised that his membership privileges had been reinstated.

14 On 4 October 1996 it was reported to the Club's Chief Executive Officer that on that day the applicant had consumed a full glass of Bailey's Irish Cream. The Chief Executive Officer spoke to the applicant and on the same day wrote to him in the following terms:

"with reference to today's conversation and meeting regarding the consumption of alcohol when on medication.

At a previous Judiciary Meeting held on Tuesday 13 August the Board warned you not to consume alcohol while on a program of medication. Therefore I am advising you that as from today you will not be allowed to purchase alcohol for consumption on Club premises while you are on medication.

As I explained the situation to you regarding the Responsible Service of Alcohol Act (sic) and our vulnerability to the interpretation of intoxication. I believe this is the most sensible avenue to alleviate any possibility of reprisals."

15 On 15 October 1996, the applicant was playing poker machines in the Club and became angry after suffering losses. An exchange occurred between him and other individuals and staff of the Club intervened. The intervention led to a loud altercation between the applicant and a staff member. It was reported by senior Club staff that the applicant was "affected by either alcohol or a substance" and that he was "uncoordinated".

16 On 28 October 1996, the Club's Operation Manager again wrote to the applicant and informed him that an appointment had been made for him to appear before the Judiciary Committee on 12 November 1996 "regarding behaviour unbecoming of a member". The letter advised him of "reports of unacceptable behaviour and attitude towards staff members" and indicated that he would "be able to hear the reports and have the opportunity to reply to the statements therein, and to show cause why your membership of this Club should not be suspended".

17 The applicant chose not to attend before the Judiciary Committee on 12 November 1996. His evidence before the Inquiry Commissioner was that he believed that the Club and its officials were discriminating against him and that, in effect, he would not get a fair hearing.

18 At its meeting on 12 November 1996, the Judiciary Committee, surprisingly in view of the terms of the letter sent to the applicant, resolved that he be expelled from membership of the Club.

STATUTORY PROVISIONS

19 In the DDA, unless a contrary intention appears:

"`disability', in relation to a person, means:

(a) total or partial loss of the person's bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

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

(f) disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

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

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(k) is imputed to a person ..."

"`club' means an association (whether incorporated or unincorporated) of persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that provides and maintains its facilities, in whole or in part, from the funds of the association ..."

"`committee of management', in relation to a club or a registered organisation, means the group or body of persons (however described) that manages the affairs of that club or organisation, as the case may be ...."

20 Section 5(1) of the DDA provides:

"For the purposes of this Act, a person (`discriminator') discriminates against another person (`aggrieved person') on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat 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 without the disability."

21 Section 10 of the DDA provides that if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or substantial reason for doing the act), then, for the purposes of the DDA, the act is taken to be done for that reason.

22 Section 27 of the DDA is concerned with clubs and incorporated associations. Subsection 27(2) provides:

"27(2) It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is a member of the club or association on the ground of the member's disability or a disability of any of the member's associates:

(a) in the terms or conditions of membership that are afforded to the member; or

(b) by refusing or failing to accept the member's application for a particular class of type of membership; or

(c) by denying the member access, or limiting the member's access to any benefit provided by the club or association; or

(d) by depriving the member of membership or varying the terms of membership; or

(e) by subjecting the member to any other detriment."

REASONS OF THE INQUIRY COMMISSIONER

23 The Inquiry Commissioner was satisfied that on 4 January 1995 the applicant while in the Club "presented ... as one who was intoxicated" although he was unable to identify the cause for this.

24 As to the incident on 12 June 1996, the Inquiry Commissioner concluded that:

"whatever its cause, staff members were concerned by the demeanour and presentation of the [applicant] on the basis that he appeared to be intoxicated by `something'. Obviously they considered that intervention was justified .... [T]here is no basis for concluding that the intervention by staff was totally unjustifiable or that it was the result of a conspiratorial agreement to falsely allege that the [applicant's] behaviour was such as to justify his removal from the Club."

25 With respect to the recommendation made by the Judiciary Committee on 13 August 1996 that the applicant not drink alcohol whilst on medication and on Club premises, the Inquiry Commission observed:

"Whether the terms of the recommendation can be supported on medical grounds is in my view beside the point. It was a layman's view which prevailed. It was, I am satisfied, seen as a bona fide attempt by the committee to modify or control any excessive behaviour to which the complainant might be subject because of his drug use which had been freely and fully revealed to members of the committee. The proceedings concluded harmoniously with the complaint's membership being restored and a recommendation made which was apparently seen to be in the best interests of the Club and of the [applicant] himself.

I am satisfied that the committee proceedings on 13 August 1996 were conducted without any hint of discriminatory conduct towards the [applicant]. Rather they proceeded cordially with the [applicant] happy to accept the stated outcome."

26 The Inquiry Commission was satisfied that, when the Chief Executive Officer of the Club subsequently advised the applicant by letter dated 4 October 1996 that "as from today you will not be allowed to purchase alcohol for consumption on Club premises while you are on medication", the Chief Executive Officer was concerned to ensure compliance with the Club's Responsible Service of Alcohol Policy and to avoid the applicant being again described as intoxicated whilst on Club premises.

27 As to the expulsion of the applicant from his membership of the Club, the Inquiry Commissioner in his reasons for decision said:

"It is idle to speculate as to what might have occurred at the meeting on 12 November 1996 had the complainant responded positively to the letter of 28 October and had (sic) attended the meeting. There is no basis for submitting that the Club acted in any way unlawfully in deciding to expel the [applicant] who had deliberately chosen not to attend and had therefore failed to show cause at the meeting. ... There is simply no acceptable evidence that the decision on 12 November 1996 was discriminatory on the ground that the [applicant] was treated `less favourable' because of his opiod (sic) dependence and/or the fact that he suffered a chronic hepatitis infection. He was alleged to have been intoxicated and to have exhibited unacceptable conduct within the Club. He was subjected to the usual process which the Club adopted in like cases. He was given the opportunity to show cause which he rejected. There can be no basis for suggesting that in expelling him in these circumstances the Club treated him less favourably than any other member on the basis that he was opiod (sic) dependant."

28 The Inquiry Commissioner concluded:

"I am not persuaded on inquiry that the respondent Club unlawfully discriminated against the [applicant] in breach of s 27(2) of the DDA nor that his expulsion from the Club on 12 November 1996 was because of his `disability' said to be constituted by the condition of opiod (sic) dependence, the use of methadone and the condition of Hepatitis C infection.

In his complaint he alleges that on denying him access to liquor within the Club he was also discriminated against in terms of sections 24 and 27 of the DDA on account of his `disability'.

At the hearing on 13 August it was recommended to him that he abstain, one (sic) that he was happy to accept. On 4 October Mr Fraser had advised him that he would not be served liquor in the Club. There is no satisfactory basis for a conclusion that the actions of the Club or of its Chief Executive Officer in this respect were taken on account of the alleged disability. Rather it is clear that the apparent intoxication of the [applicant] on an earlier occasion and his unacceptable conduct which were of concern to the Club and its officers given the fact that by law it is required to adhere to a policy which demanded the responsible service of alcohol. This applied to Club members irrespective of who they were. I am satisfied that the Club's response in respect of the [applicant] was based on such a consideration rather than the alleged disability of the [applicant].

...

In my view any decisions taken in respect of the [applicant], including his expulsion from the Club, were based on the reports of his `intoxication', whatever its cause and the reported associated behaviour of the [applicant]. This decision was responsibly taken by the Club in the perceived best interest of the membership of the Club and in accordance with the Articles of Association of the Club and having regard to its statutory obligations pursuant to the Registered Clubs Act 1976."

29 The conclusions reached by the Inquiry Commissioner meant that it was not necessary for him to make a finding as to whether the applicant relevantly suffers from a "disability" within the meaning of the DDA. He did, however, give consideration to this question. He concluded that:

"[p]rima facie such a condition of addiction may be thought to be comprehended by sub-paragraph (g) of the definition. Such an inclusion however may give rise to difficulties in the administration of the DDA. However that question does not arise here because the alleged `disability' is the [applicant's] dependence on methadone in order to relieve against the symptoms of heroin withdrawal even though the use of the methadone is itself addictive and so renders the [applicant] opiod (sic) dependant. The question therefore arises whether the [applicant] given his present dependence on methadone thereby suffers a disability. ...

In my view a person who suffers a `disorder' illness or disease' of the kind described in sub-paragraph (g) of the definition of `disability' does not suffer a disability as defined if the appropriate treatment regime gives relief against the consequences of the `disorder etc' which are stated in the definition even though the treatment itself crates a condition of dependence which may be permanent. On this basis one might conclude that opiod (sic) dependence in these circumstances does not constitute a disability as defined."

GROUNDS OF REVIEW

30 The grounds of review contained in the application are as follows:

"4. The First Respondent erred in law in construing section 4 of the Disability Discrimination Act 1992 (Cth), in particular, failing to find that the Applicant's opioid dependence is a disability within the meaning of the Disability Discrimination Act 1992 (Cth).

5. The First Respondent erred in law in construing the definition of `disability' in section 4 of the Disability Discrimination Act 1992 (Cth) by failing to construe the section having regard to the ordinary words of the section and the overall objects and purposes of the Act.

5A. The First Respondent erred in law in failing to find that the Applicant's expulsion as a member of the Second Respondent on the grounds of apparent intoxication and unacceptable conduct was because of the Applicant's disabilities.

5B. The First Respondent erred in law in finding that the Applicant had not been treated less favourably than other members of the Second Respondent, who did not have his disabilities, in the same or similar circumstances with respect to disciplinary proceedings; access to services and facilities and access to benefits provided by the Second Respondent.

6. The First Respondent took into account irrelevant considerations, namely:

(a) in determining that methadone dependence is not a disability within the meaning of the Disability Discrimination Act 1992 (Cth), the fact that the treatment of heroin dependence with methadone itself creates a condition of dependence which may be permanent;

(b) in determining that methadone dependence is not a disability within the meaning of the Disability Discrimination Act 1992 (Cth), the finding that a person on an appropriate dose of methadone can live a reasonable lifestyle free from the symptoms of heroin withdrawal.

(c) whether or not the second respondent was motivated by a desire to maintain a Responsible Service of Alcohol Policy in accordance with section 44B of the Registered Clubs Act 1976 (NSW).

7. The First Respondent failed to take into account relevant considerations, namely:-

(a) the Applicant's evidence that his methadone dependence limited his lifestyle and restricted his ability to gain employment.

(b) the First Respondent failed to accept evidence of and take into account and give appropriate weight to the Second Respondent's conduct in disciplinary proceedings involving members of the Second Respondent in 1996.

(c) in determining that the Second Respondent's conduct in refusing service of alcohol to the Applicant was not discriminatory the First Respondent failed to take into account and give appropriate weight to the evidence that the use of methadone does not put the user at greater risk of intoxication.

(d) in failing to take into account the penalties imposed on other members of Second Respondent following disciplinary proceedings, for the purposes of determining whether the Applicant had been treated less favourably than other members.

7A. There was no evidence or other material to justify the making of the decisions that:

(i) the Applicant was subjected to the usual disciplinary process adopted by the Second Respondent in like cases; and

(ii) the Applicant was not treated less favourably than other persons or subjected to less favourable treatment.

Particulars

a) The First Respondent refused the tender of 1996 Minutes of the Second Respondent's Board documenting disciplinary hearings in relation to other members of the Second Respondent."

CONSIDERATION

Discrimination

31 It was not in dispute before the Inquiry Commissioner, or before this Court, that the Club is a "club" within the meaning of s 27 of the DDA. It is therefore unlawful for the Club, or the committee of management of the Club, to discriminate against a person who is a member of the Club on the ground of the member's disability (as defined by the DDA) by:

(i) denying the member access, or limiting the member's access to any benefit provided by the Club (s 27(2)(c));

(ii) by depriving the member of membership (s 27(2)(d)); or

(iii) by subjecting the member to any other detriment (s 27(2)(e)).

32 It was also not in dispute before the Inquiry Commissioner, or before this Court, that:

(i) the acts of which the applicant complained were acts of the Club or the committee of management of the Club (hereafter I shall simply refer to "the Club");

(ii) by advising the applicant that he would not be allowed to purchase alcohol for consumption on Club premises, the Club denied the applicant access, or limited his access, to a benefit provided by the Club or subjected him to another detriment;

(iii) by expelling the applicant from membership of the Club, the Club deprived him of membership; and

(iv) by subjecting the applicant to disciplinary action in the Judiciary Committee and by removing him from the Club, the Club subjected him to a detriment.

33 The issues for determination by the Inquiry Commissioner were thus whether the Club discriminated against the applicant on the ground of his disability (if any) when it advised him that he would not be allowed to purchase alcohol for consumption on Club premises, when it expelled him from membership of the Club, and when it subjected him to disciplinary action and removal from the Club.

34 As the Inquiry Commissioner initially proceeded on the basis of an assumption that the applicant's opioid dependency was a disability within the meaning of the DDA, the above issues required him to determine whether the Club, when it did the above acts or any of them, because of the applicant's opioid dependency, treated him less favourably than, in circumstances that were the same or were not materially different, it would have treated a person who did not have such a dependency (s 5(1)). That is, the Inquiry Commissioner was required to give consideration to two issues which, although logically distinct, were likely to involve significant factual overlap. The first was whether the applicant had been treated "less favourably" by the Club. The second was whether, if he had, the "less favourable" treatment was because of his opioid dependency.

35 As Mahoney JA observed of the words "less favourable" in the Anti-Discrimination Act 1977 (NSW) in Boehringer Ingelheim Pty Limited v Reddrop [1984] 2 NSWLR 13 at 19:

"These words require that there be two situations or sets of circumstances, the actual and the hypothesized, so that it can be determined by a comparison whether the treatment in the former is `less favourable' than in the latter."

36 The test of "less favourable" treatment is not a test of reasonableness. It is a test which involves comparing the actual and the hypothesised treatments for the purpose of determining whether the actual treatment was less favourable, in the sense of less beneficial or less advantageous, than the hypothesised treatment. Only in the case of "indirect discrimination" (see s 6 of the DDA) does reasonableness become a relevant criterion of discrimination. The present case does not involve an allegation of "indirect discrimination".

37 In Hains v Leves (1987) 8 NSWLR 442 at 471, Kirby P, after referring to the judgment of Mahoney JA in Boehringer, said:

"The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected: see Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429; [1979] 1 All ER 474 (Eng CA)."

In this regard see also Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 esp per Deane and Gaudron JJ at 175-177 and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 per Mason CJ and Gaudron J (Deane J agreeing) at 359-360.

38 The issue of whether any "less favourable" treatment of the applicant was because of the applicant's opioid dependency involved consideration of the grounds upon which the Club decided to treat the applicant in the way that it did. If any relevant act was done by the Club for two or more reasons and one of the reasons was the disability of the applicant, then for the purposes of the DDA, the act was to be taken to be done for that reason whether or not it was the dominant or substantial reason for doing the act (s 10).

39 The principal contention of the applicant was, in effect, that the Inquiry Commissioner failed to give genuine consideration to whether the applicant was, because of his opioid dependency, relevantly treated less favourably by the Club than, in the same or similar circumstances, it would have treated a person who did not have an opioid dependency. That is, that the Inquiry Commissioner failed to apply the definition of "discrimination" contained in s 5 of the DDA.

40 Aspects of the Inquiry Commissioner's reasons for decision provide support for the above contention. For example, in respect of the meeting of the Judiciary Committee held on 13 August 1996, the Inquiry Commissioner stated:

"I am satisfied that the committee proceedings on 13 August 1996 were conducted without any hint of discriminatory conduct towards the [applicant]. Rather they proceeded cordially with the [applicant] happy to accept the stated outcome."

As to the recommendation that the applicant not drink alcohol while on the Club's premises, the Inquiry Commissioner concluded:

"It was, I am satisfied, seen as a bona fide attempt by the committee to modify or control any excessive behaviour to which the [applicant] might be subject because of his drug use which had been freely and fully revealed to members of the committee."

In regard to the decision to expel the applicant from his membership of the Club, the Inquiry Commissioner concluded:

"This decision was responsibly taken by the Club in the perceived best interest of the membership of the Club and in accordance with the Articles of Association of the Club and having regard to its statutory obligations pursuant to the Registered Clubs Act 1976."

41 The above extracts from the Inquiry Commissioner's reasons for decision suggest that the Inquiry Commissioner overlooked the need, for the purpose of determining whether the applicant had been discriminated against on the ground of his opioid dependency, of determining whether, because of his opioid dependency, he had been treated less favourably than a hypothetical person who was not opioid dependent would have been treated in comparable circumstances. For the purposes of this determination, findings that a meeting proceeded cordially and that the applicant happily accepted a stated outcome were not directly relevant. Similarly, the findings that the committee saw its recommendation that the applicant not drink alcohol while on the Club's premises as a bona fide attempt to modify or control any excessive behaviour to which the applicant might be subject because of his drug use, and that the decision to expel the applicant from membership of the Club was responsibly taken in accordance with the Club's Articles of Association and its statutory obligation under the Registered Clubs Act 1976 (NSW), did not of themselves assist in the reaching of a decision as to whether the applicant was treated less favourably by the Club than in the same or similar circumstances it would have treated a person who did not have an opioid dependency.

42 Moreover, it does not appear that the Inquiry Commissioner sought to identify the grounds upon which the Club decided to treat the applicant in the way that it did. No member of the Judiciary Committee gave evidence before the Inquiry Commissioner. For this reason there was no direct evidence available to the Inquiry Commissioner as to whether a reason for which the applicant was expelled from membership of the Club was that he was opioid dependent.

43 If, as appears to have been the case, the Club decided against calling the members of the Judiciary Committee to give evidence, it was open to the Inquiry Commissioner to call them (s 95(2)). As Murray J pointed out in Perth City v DL (1994) 88 LGERA 45 at 63:

"... it will always logically be the case that to determine the ground of the decision of the corporate entity one must determine what was the ground of the decision of those individual persons who constituted the majority and for that purpose, in my opinion, in a case where there is a majority of one, it would not matter that only one voting individual took his or her decision upon a ground which would be relevant for the purposes of the legislation."

44 In fact, not only did the Inquiry Commissioner not require the members of the Judiciary Committee to be called to give evidence, he declined to receive in evidence minutes of previous meetings of the Judiciary Committee which were tendered on the basis that they tended to establish how the Club had dealt with other members whose alleged conduct was similar to that of the applicant.

45 The following exchange occurred during the inquiry before the Inquiry Commissioner:

"MR BATLEY: ... I do propose to tender all of the minutes [for 1996], and I would argue that the way in which the club has dealt with other members is a relevant consideration.

THE COMMISSIONER: I'd need to be persuaded about that and, as present[ly] advised, I'm not.

...

MR BATLEY: ... The issue in relation to those proceedings involving other members is to do with the proportion of the penalty to the alleged offence in relation to those other members, as compared to the way in which Mr Marsden was dealt with.

THE COMMISSIONER: If I'm going to investigate that then I've got to investigate every incident involving every other member. I certainly don't need to do that and, obviously, I don't think its competent for me to do it anyway."

46 Counsel for the Club conceded before this Court that the failure of the members of the Judiciary Committee to give evidence, together with the rejection by the Inquiry Commissioner of evidence tending to show how the Club had dealt with other members whose alleged conduct was similar to the conduct of the applicant, meant that there was no evidence before the Inquiry Commissioner upon which he could make a determination as to whether the Club, when it expelled Mr Marsden from membership, treated him less favourably than, in circumstances that were the same or not materially different, it would have treated a person who was not opioid dependent. The concession was, in my view, properly made. It was also the case that the Inquiry Commissioner had no direct evidence before him as to the grounds upon which the decision of the Club to expel the applicant from membership of the Club was made. That is, there was no direct evidence as to whether any less favourable treatment was because of the applicant's opioid dependency.

47 The Inquiry Commissioner's reasons for decision disclose that he did not give real consideration to the question of whether the Club, in first recommending that the applicant not drink alcohol on the Club's premises, and then in advising him that he would not be allowed to purchase alcohol for consumption on the Club's premises while he was on medication, because of his opioid dependency, treated him less favourably than, in circumstances that were the same or not materially different, it would have treated a person who was not opioid dependent. The Inquiry Commissioner's satisfaction that the above conduct of the Club was based on the applicant's apparent intoxication on an earlier occasion and on its concern to adhere to a policy which demanded the responsible service of alcohol did not provide an answer to this question.

48 The evidence before the Inquiry Commissioner as to the consumption of alcohol by a person taking methadone was as follows:

"Provided a constant daily dose of methadone is taken, as is the case with methadone programs, methadone does not make a person exhibit signs of intoxication.

Other things [being] equal, a person on methadone, consuming alcohol, would not be at a greater risk of intoxication than a person of similar build etc who consumes the same quantity of alcohol but who was not on methadone. Opiates such as methadone can, in fact, induce liver enzymes and allow greater tolerance of alcohol than other people.

A person suffering from Hepatitis C, taking methadone, who consumes alcohol, does not have a lower threshold for becoming intoxicated than a person who does not have Hepatitis C and who is not taking methadone at the same time."

49 It was, on the evidence before him, open to the Inquiry Commissioner to conclude that the prevailing of the "layman's view" as to the desirability of the applicant's consuming alcohol (see para 26 above) had the result that, because of the applicant's opioid dependency, the Club treated him less favourably with respect to the service of alcohol than, in circumstances that were the same or not materially different, it would have treated a person who was not opioid dependent. That is, that it acted on the basis of an assumption, which it would not have adopted in respect of a person who was not opioid dependent, that he had an unacceptably low threshold for becoming, or appearing to be, intoxicated. The Inquiry Commissioner did not give consideration to this issue.

50 In my view, the complaint of the applicant that the decision of the Inquiry Commissioner involved an error of law, namely an erroneous understanding of what constitutes "discrimination on the ground of disability" within the meaning of the DDA, must be upheld.

DISABILITY

51 The above conclusion means that it is necessary for consideration to be given to the Inquiry Commissioner's tentative view that the applicant's opioid dependency could not constitute a disability within the meaning of the DDA. If the Inquiry Commissioner's tentative view in this regard were to be upheld, the error of law with respect to the issue of discrimination would have no practical significance.

52 The statutory definition of "disability" is set out in para 19 above.

53 There was evidence before the Inquiry Commission to the following effect:

(a) the applicant is a former heroin addict;

(b) at the time when he was using heroin, he experienced the following withdrawal symptoms when heroin was unavailable to him:

(i) leg cramps;

(ii) stomach pains;

(iii) nausea; and

(iv) various chills and sweats;

(c) the applicant remains opioid dependent and is on a methadone program which involves him in taking a daily dose of methadone;

(d) if the daily dose is lower than that necessary to sustain him for a twenty-four hour period he suffers the same symptoms as he previously suffered in connection with heroin withdrawal;

(e) after an appropriate dose of methadone, the applicant feels normal; and

(f) typical signs of opioid withdrawal include aches and pains; with rapid reductions in dosage there can be nausea, a sense of craving and dysphoric mood effects.

54 In my view, the Inquiry Commissioner rightly concluded that it was open to him to find that, prima facie, the applicant's condition of addiction was comprehended by subparagraph (g) of the statutory definition of "disability". However, the Inquiry Commissioner went on to indicate tentative support for the view that a person who suffers a disorder, illness or disease of the kind described in subparagraph (g) does not suffer a disability within the meaning of the DDA if the appropriate treatment regime gives relief against the consequences of the disorder etc even though the treatment itself creates a condition of dependence which may be permanent.

55 In ordinary usage, the words "disorder, illness or disease" encompass a medical condition the symptoms of which can be, and are, alleviated by treatment. Certain disorders are amenable to treatment such that, while taking appropriate treatment, the person suffering from the disorder feels normal and is able to lead a normal life. There are psychiatric conditions, for example, which fit into this category. Nonetheless, in ordinary parlance, the person still suffers the disorder. There is nothing in the DDA which suggests that the words "disorder, illness or disease" in subparagraph (g) of the definition of disability are not intended to bear their usual meaning.

56 It is also of significance that, in reaching the tentative conclusion that the applicant does not suffer a disability within the meaning of the DDA, the Inquiry Commissioner apparently attributed no significance to subparagraphs (h)-(k) of the definition of disability. It was sufficient, for the purposes of the applicant's complaint, that the Club had discriminated against him on the ground that he had previously been addicted to heroin, might in the future be addicted to heroin or another opiate, or because it imputed a disability to him. The tentative view of the Inquiry Commissioner that the applicant's opioid dependency could not constitute a disability within the meaning of the DDA cannot, in the circumstances, be upheld.

CONCLUSION

57 It was not suggested by either party that, if an order of review were to be made in this proceeding, the decision of the first respondent should not be set aside in its entirety. In my view, it is appropriate for the decision to be wholly set aside and I propose to so order. The matter to which the decision relates must, in the circumstances, be referred to the first respondent for further consideration. However, the first respondent no longer has jurisdiction to conduct inquiries of the kind conducted by the Inquiry Commissioner. The effect of the orders to be made in this proceeding will be governed by Part 2 of the Human Rights Legislation Amendment Act (No 1) 1999 (Cth).

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 13 November 2000

Counsel for the Applicant:	Mr P Batley
Solicitor for the Applicant:	Legal Aid Commission of NSW
Solicitor for the First Respondent:	Human Rights & Equal Opportunity Commission
Counsel for the Second Respondent:	Mr S Wilson
Solicitor for the Second Respondent:	Fishburn Watson O'Brien
Date of Hearing:	23 October 2000
Date of Judgment:	15 November 2000