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Sex Discrimination Complaints Continue After Death
Kirsty Magarey
Law and Public Administration Group
In a decision with interesting ramifications for anti-discrimination
law generally, and the Sex Discrimination Act 1984 (Cth) (the SDA) specifically,
the Full Federal Court has recently decided that a complaint can continue
after the death of a party. In deciding so, the Court also made some important
observations regarding the purpose of sex discrimination legislation.
(The case is currently unreported-No. NG 049 OF 1996, Lydia Stephenson
as Executrix of the Estate of Alyschia Dibble v. HREOC and St Vincent's
Hospital Limited, 26 July 1996).
Background
Alyschia Dibble was a 50 year old woman who was HIV positive. On the
advice of her doctor (who explained that, given the downturn in her condition,
no other treatment was available to her) she applied to join some clinical
trials being conducted by the hospital he worked at of a treatment for
AIDS. She was given tests and approved for participation. However, subsequent
to this initial approval, she was advised that, because she was still
menstruating, she was classified as being at risk of pregnancy. She informed
the hospital that for many years she had not engaged in sexual activity
and that she was not, therefore, at risk. She also offered to undergo
a tubal ligation.
When the Hospital refused to allow her to participate in the trial Ms
Dibble complained to the Human Rights and Equal Opportunity Commission
(HREOC) that she was being discriminated against on the grounds of 'sex,
marital status or pregnancy or potential pregnancy' (s. 22 of the SDA).
The Sex Discrimination Commissioner attempted conciliation of the matter
but was advised by the hospital that Ms Dibble was excluded because of
her potential pregnancy status.
Ms Dibble then became seriously ill and asked that the complaint be
referred to a hearing (ie. that HREOC move on from the conciliation stage
of the matter to the hearing, after which a determination can be made).
She died before this could be done, her executrix however decided to pursue
the complaint.
Consideration of the Case
Sir Ronald Wilson, the Human Right Commissioner, found that the complaint
could not continue after Ms Dibble's death. Sir Ronald commented that
a hearing into such a complaint could serve 'a useful public purpose',
but he found that actions under the SDA are similar to personal actions
(personal actions involve the court determining disputes between individuals),
and the general common law rule with respect to personal actions is that
they terminate on the death of the person suing.
A single Judge of the Federal Court affirmed Sir Ronald's finding that
a complaint under anti-discrimination law was similar to a personal action.
However, the Full Court found that complaints under anti-discrimination
law are not similar to personal actions.
One of the common criticisms of Australia's anti-discrimination laws
is precisely that they may only be brought by individual complainants.
A suggested problem with such a system is that the onus is placed on individuals
to make a complaint when faced with discriminatory behaviour. Often people
who are the subject of discriminatory behaviour do not have the impetus
or resources to make a complaint.
Furthermore, the argument continues, a system which relies on individuals
to initiate complaints means there is an insufficient focus on the responsibility
of society as a whole to ensure that discriminatory behaviour is prevented.
In deciding whether the complaint could continue, the Court had to identify
Parliament's intention regarding the consequences of a complainant's death-despite
the fact that this issue was not dealt with in the legislation and had
never been raised in the debates. Wilcox J., in his judgement commented
that it is 'in the nature of things' that the subjective view of Parliamentarians
was 'unknowable'. He found however that the SDA must be interpreted in
the light of its objectives-which include the 'recognition and acceptance
within the community of the principle of the equality of men and women'
(ss. 3(d)). The Court concluded that the SDA must be interpreted to permit
the conduct of test cases. Despite the fact no personal remedy could be
sought, the case did not cease to have significance.
Wilcox J also argued that the valuable evidence given by Ms Dibble would
be lost if HREOC refused to hear the case. Even if HREOC subsequently
instituted a more general enquiry it would not have this evidence before
it-and the evidence of other witnesses and parties would have to be given
again. This would visit upon them not only personal inconvenience but
also the strain of repeating evidence about sensitive matters.
Conclusion
The approach of the Full Court is useful in articulating background
principles of anti-discrimination law. This is particularly significant
given that other Commonwealth anti-discrimination legislation (eg. race
and disability) is also silent on whether a complaint can continue after
the death of a complainant. Furthermore, the outcome of the case after
HREOC's hearings will have important consequences for women who are currently
barred from drug trials by drug companies and ethics committees. It may
provide an interesting opportunity for HREOC to comment on what constitutes
discrimination in the case of women with a biological child bearing capacity.
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