FEDERAL COURT OF AUSTRALIA

Soulitopoulos v LaTrobe University Liberal Club [2002] FCA 1316

DISCRIMINATION – Disability discrimination – whether the prohibition of disability discrimination is a matter of international concern – whether prohibition of disability discrimination in relation to membership of clubs and incorporated associations is a matter of international concern

Disability Discrimination Act 1992 (Cth) Div 1, 2 and 3 of Pt 2, ss 12(8) and 27(2)

Constitution s 51(xxix)

International Covenant on Civil and Political Rights Art 26

The King v Burgess Ex parte Henry (1936) 55 CLR 608 - considered

Koowarta v Bjelke-Petersen and Others (1982) 153 CLR 168 - applied

The Commonwealth of Australia v Tasmania (1983) 158 CLR 1 – cited

Richardson v The Forestry Commission (1987) 164 CLR 261 - considered

Buck v Bell 274 US 200 (1927) - cited

Secretary, Department of Health and Community Services v J.W.D. and S.M.D. (1992) 175 CLR 218 – cited

Brannigan v Commonwealth of Australia (2000) 110 FCR 566 - distinguished

TONY SOULIOTOPOULOS v THE LATROBE UNIVERSITY LIBERAL CLUB, WENDY BOAN, ANDREW STOW, DOUGHLAS RIDD, TREVOR GREENBERG, ADRIAN SCHONFELDER, PAUL KOUNAS AND DANIEL BECK

V 316 OF 2000

MERKEL J

25 OCTOBER 2002

MELBOURNE

THE COURT ORDERS:

1.                  The separate question for determination, namely:

Does s 27(2) of the Disability Discrimination Act 1992 (Cth) (“the Act”) have effect by reason of s 12(8) of the Act?

be answered as follows:

                        Yes.

2.                  The applicant’s costs of and incidental to the separate question be the applicant’s costs in the cause.

3.                  The proceeding be transferred to the Federal Magistrate’s Court for hearing on 1 April 2003 on an estimate of 5 days or on such earlier date as may be available.

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

REASONS FOR JUDGMENT

1                     The applicant, who suffers from an obsessive compulsive disorder, anxiety and depression, claims that the respondents discriminated against him during 1998 in contravention of s 27(2) of the Disability Discrimination Act 1992 (Cth) (“the Act”).  The applicant is seeking a declaration that his expulsion from the Latrobe University Liberal Club and other less favourable treatment he received while a member of that Club was unlawful.  The applicant is seeking a written apology and compensation.

2                     The respondents deny that they have engaged in any conduct in contravention of s 27(2) of the Act but claim that, in any event, s 27 does not have effect as a law of the Commonwealth.  Pursuant to O 29 r 2 of the Federal Court Rules, the Court ordered that the following question be tried as a separate question:

“Does s 27(2) of the Disability Discrimination Act 1992 (Cth) (‘the Act’) have effect by reason of s 12(8) of the Act?”

3                     In order to appreciate how the separate question arises it is necessary to consider the Act.  The objects of the Act, which are set out in s 3, are:

“(a)     to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

(i)        work, accommodation, education, access to premises, clubs and sport; and

(ii)        the provision of goods, facilities, services and land; and

(iii)       existing laws; and

(iv)       the administration of Commonwealth laws and programs; and

(b)       to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c)       to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.”

4                     Section 4 defines “disability” to mean:

“(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)        a 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;”

5                     The Act prohibits direct and indirect disability discrimination, which are defined in ss 5 and 6.  The application of the Act is provided for in s 12, which relies upon several constitutional heads of power.  The head of power that is relevant in the present case is s 51(xxix), of the Constitution, which confers powers on the Parliament to make laws with respect to “external affairs”.  Relevantly, s 12 provides:

“12  Application of Act

(1)       In this section:

…

‘limited application provisions’ mean the provisions of Divisions 1, 2 and 3 of Part 2 other than sections 20, 29 and 30.

(2)       Subject to this section, this Act applies throughout Australia.

…

(8)       The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:

(a)       give effect to the Convention; or

(b)       give effect to the Covenant on Civil and Political Rights; or

(c)        give effect to the International Covenant on Economic, Social and Cultural Rights; or

(d)       relate to matters external to Australia; or

(e)        relate to matters of international concern.”

6                     The Convention is defined in s 4 to mean the Discrimination (Employment and Occupation) Convention (adopted on 25 June 1958 and entered into force on 15 June 1960).  The Covenant on Civil and Political Rights is defined in s 4 as the International Covenant on Civil and Political Rights (opened for signature on 16 December 1966 and entered into force on 23 March 1976) (“the ICCPR”).

7                     Divisions 1, 2 and 3 of Pt 2 of the Act outline the manner in which disability discrimination is prohibited.  Division 1 prohibits discrimination in work, Div 2 prohibits discrimination in other areas including education, access to premises, goods, services and facilities, land, clubs, incorporated associations and sport and Div 3 prohibits harassment in relation to a person’s disability in employment and education and in the provision of goods and services.

8                     The present case is concerned with discrimination in the area of clubs and incorporated associations in contravention of s 27(2), which is within Div 2 of Pt 2.  A “club” is defined in s 4:

“‘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.”

9                     Section 27 provides:

“Clubs and incorporated associations

(1)     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 not a member of the club or association on the ground of the person’s disability or a disability of any of that person’s associates:

(a)       by refusing or failing to accept the person’s application for membership; or

(b)       in the terms or conditions on which the club or association is prepared to admit the person to membership.

(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 or 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.

(3)     Paragraph (2) (c) does not render unlawful discrimination where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the club or incorporated association.

(4)     Neither subsection (1) nor (2) renders it unlawful to discriminate against a person on the ground of the person’s disability if membership (however described) of the club or incorporated association is restricted only to persons who have a particular disability and the first‑mentioned person does not have that disability.”

10                  The ambit of s 27 is extensive.  It is clear from the definition of a “club” in s 4(1) and the wide area of activity of incorporated associations that such bodies will extend across the whole spectrum of social, literary, cultural, political, sporting, athletic and other lawful creative or recreational activities in the Australian community.

11                  The applicant, who relies on s 27(2) having effect by reason of s 12(8)(b) and (e), claims that s 27 gives effect to Art 22 and 26 of the ICCPR and relates to a matter of international concern as it is founded upon those Articles, as well as certain Declarations of the General Assembly of the United Nations concerning disability discrimination.

12                  Relevantly, Art 22 of the ICCPR provides:

“1.    Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2.      Not restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.  This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

…”

13                  Article 26 of the ICCPR provides:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

14                  The applicant claims that discrimination on the ground of disability is discrimination on the ground of a person’s “status” for the purposes of Art 26.

15                  The respondents dispute that s 27 of the Act gives effect to Arts 22 or 26 of the ICCPR, and contend that Arts 22 and 26 are concerned with quite different subject matters to that with which s 27 is concerned.  The respondents also contend that, while there may be some concern internationally about disability discrimination, for a matter to be a matter of international concern for the purposes of s 12(8)(e) it must affect, or have the capacity to affect, relations between Australia and other countries.  It is then said that disability discrimination does not have that quality.

16                  The submissions of both parties relied on a number of High Court cases concerning the ambit of the external affairs power in s 51(xxix) of the Constitution.  The genesis of the modern view of the external affairs power is to be found in the joint judgment of Evatt and McTiernan JJ in The King v Burgess Ex parte Henry (1936) 55 CLR 608 (“Burgess”) at 687, where their Honours stated:

“…it is not to be assumed that the legislative power over ‘external affairs’ is limited to the execution of treaties or conventions; and, to pursue the illustration previously referred to, the Parliament may well be deemed competent to legislate for the carrying out of ‘recommendations’ as well as the ‘draft international conventions’ resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations. The power is a great and important one.”

17                  The illustration previously referred to by Evatt and McTiernan JJ concerned matters that were capable of becoming possible subjects of international negotiation, international dispute or international agreement.  Their Honours stated (at 680-681):

“But it is a consequence of the closer connection between the nations of the world (which has been partly brought about by the modern revolutions in communication) and of the recognition by the nations of a common interest in many matters affecting the social welfare of their peoples and of the necessity of co-operation among them in dealing with such matters, that it is no longer possible to assert that there is any subject matter which must necessarily be excluded from the list of possible subjects of international negotiation, international dispute or international agreement. By way of illustration, let us note that Part XIII. of the Treaty of Versailles declares that universal peace can be established only if it is based upon social justice and that labour unrest caused by unsatisfactory conditions of labour imperils the peace of the world. In face of these declarations and the setting up (under the treaty) of the International Labour Organization it must now be recognized that the maintenance or improvement of conditions of labour can (as it does) form a proper subject of international agreement, for differences in labour standards may increase the friction between nations which arises even when trade competition takes place under conditions of reasonable equality.”

18                  In Koowarta v Bjelke-Petersen and Others (1982) 153 CLR 168 (“Koowarta”) Stephen, Mason, Murphy and Brennan JJ held that the Racial Discrimination Act 1975 (Cth), which was passed to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination (opened for signature on 21 December 1965 and entered into force on 4 January 1969) to which Australia was a party, was a valid law with respect to external affairs under s 51(xxix) of the Constitution.  Brennan J encapsulated the majority view (at 260) where his Honour stated:

“The treaty in performance of which the Racial Discrimination Act 1975 (Cth) (‘the Act’) was enacted is the International Convention on the Elimination of All Forms of Racial Discrimination (‘the Convention’). Its origins, the extent of international participation in it and the long and profound international concern as to its subject-matter are recounted in the judgment of my brother Stephen. To his summary I would add nothing except to say that I should think that the implementing of that Convention by Australia must be of the first importance to the conduct of Australia's relations with its neighbours, if not indeed to Australia's credibility as a member of the community of nations.”

19                  The majority view in Koowarta was that a matter of international concern, having the capacity to affect Australia’s relations with other countries, was enough to make that matter a part of Australia’s “external affairs” for the purposes of s 51(xxix) of the Constitution.  Stephen J (at 217) stated:

“The great post-war expansion of the areas properly the subject-matter of international agreement has, as Henkin points out and as J. A. Thomson emphasizes in his article, at pp. 164-166, made it difficult indeed to identify subject-matters which are of their nature not of international but of only domestic concern: see also Howard, Australian Federal Constitutional Law, 2nd ed. (1972), pp. 445-446. But this does no more than reflect the increasing awareness of the nations of the world that the state of society in other countries is very relevant to the state of their own society. Thus areas of what are of purely domestic concern are steadily contracting and those of international concern are ever expanding. Nevertheless the quality of being of international concern remains, no less than ever, a valid criterion of whether a particular subject-matter forms part of a nation's ‘external affairs’. A subject-matter of international concern necessarily possesses the capacity to affect a country's relations with other nations and this quality is itself enough to make a subject-matter a part of a nation's ‘external affairs’. And this being so, any attack upon validity, either in what must be the very exceptional circumstances which could found an allegation of lack of bona fides or where there is said to be an absence of international subject-matter, will still afford an appropriate safeguard against improper exercise of the ‘External affairs’ power.”

20                  Mason J (at 230) stated:

“One knows or can readily imagine treaties on topics of international concern by which the parties agree to enact domestic legislation to attain a common object, whether it be to suppress a noxious traffic or trade, to eliminate an infectious or contagious disease, or to limit production of a commodity or of goods in order to stabilize and share markets. The subject-matter of such treaties is, despite the argument of the Solicitor-General for Victoria to the contrary, international in character - there is agreement by the parties to take common action in pursuit of a common international objective, each party standing to gain a benefit from its attainment.”

21                  And at 234:

“…it seems to me that a matter which is of external concern to Australia having become the topic of international debate, discussion and negotiation constitutes an external affair before Australia enters into a treaty relating to it.”

22                  Murphy J (at 242) stated:

“the Act relates to matters of international concern, the observance in Australia of international standards of human rights, which is part of Australia's external affairs, so that the Act's operative provisions would be valid even in the absence of the Convention. Thus it is immaterial whether the Act precisely conforms to the terms of the Convention.”

23                  Brennan J stated at 258:

“When a particular subject affects or is likely to affect Australia's relations with other international persons, a law with respect to that subject is a law with respect to external affairs. The effect of the law upon the subject which affects or is likely to affect Australia's relationships provides the connexion which the words ‘with respect to’ require.”

24                  In The Commonwealth of Australia v Tasmania (1983) 158 CLR 1 (“The Tasmanian Dam Case”) Murphy J (at 171), discussed the majority view in Koowarta and, observed:

“External concern over human rights violations often extends internal affairs into external affairs.”

25                  Although an expansive view has been taken as to the range of matters that may be the subject of Australia’s “external affairs” the cases in which that view has been expressed concerned the legislative implementation of an international treaty.  However, Dawson J in Richardson v The Forestry Commission (1987) 164 CLR 261 at 322-323 stated that the majority in the Tasmanian Dam Case decided that:

“…it is enough to attract legislative power if, even though there is no treaty, a subject-matter is of sufficient international concern per Mason J. [at 129-132]; per Murphy J. [at 171-172]; per Brennan J. [at 222]; and per Deane J. [at 258-259]. Although the majority did not necessarily place any reliance upon the judgment of Stephen J. in Koowarta v Bjelke-Petersen, that conclusion flows logically from the view which he expressed that the implementation of a treaty is not automatically an exercise of the external affairs power; the subject-matter of the treaty must also be a matter of international concern. Stephen J. saw the requirement of international concern as a restriction upon the power and I was prepared to view it in that way in the Tasmanian Dam Case. But in reality, as the decision in the latter case shows, the fact that a matter is the subject of a bona fide treaty makes it difficult to say that it is not a matter of international concern and, if international concern is the touchstone, why is a treaty necessary at all? Why is international concern over a matter not sufficient of itself to bring it within the external affairs power?

            If the scope of the matters which may be the subject of treaties has greatly expanded in recent years, the scope of those matters which may be the subject of international concern is even wider.”

26                  His Honour did not answer the question posed by him but it was clear from his observations at 323-324 that whether legislation is founded on a treaty or some other international instrument may not matter a great deal as treaties:

“…in accordance with modern custom, give expression to broad policy, to aspiration and to exhortation. If actual obligations are imposed, they are of the most imprecise kind.  And, of course, upon the view adopted by the majority in the Tasmanian Dam Case, the decisive thing must, in the end, be not the treaty but the international concern to which the treaty gives expression.”

27                  The views of Evatt and McTiernan JJ in Burgess were also acted upon by Brennan CJ, Gaudron, McHugh and Gummow JJ in (“The Industrial Relations Act case”) at 483-484 where their Honours accepted that the power to legislate with respect to external affairs under s 51(xxix) was not confined to the implementation of treaty obligations; it extended to the carrying out of recommendations and draft international conventions resolved upon by organisations such as the International Labour Organisation.  Their Honours also stated (at 486-487) the test to be applied in order to determine whether a law is with respect to “external affairs”:

“Where the legislative power is said to be enlivened by a treaty binding on the Commonwealth of Australia, and the law prescribes a regime affecting a domestic subject matter, a question arises as to the connection which must exist between the law and the treaty. To be a law with respect to ‘external affairs’, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty. Thus, it is for the legislature to choose the means by which it carries into or gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end. But that is not to say that an obligation imposed by treaty provides the outer limits of a law enacted to implement it. The term ‘purpose’ has been used to identify the object for the advancement or attainment of which a law was enacted. Hence, the statement by Brennan J in Cunliffe v The Commonwealth that the external affairs power has ‘a purposive aspect’. As this phrase indicates, care is required in relevant analysis. Where a treaty relating to a domestic subject matter is relied on to enliven the legislative power conferred by s 51(xxix) the validity of the law depends on whether its purpose or object is to implement the treaty.”

28                  However, their Honours also made the point that where the Act proscribes matters that go beyond the Convention to which it is purporting to give effect, the power to enact that proscription may not be supported by the external affairs power.  At 530-531 their Honours stated in respect of discrimination in employment:

“The international obligation cast upon Australia by Art 2 of the Discrimination (Employment and Occupation) Convention to pursue a national policy to promote equality of opportunity and treatment in respect of employment and occupation with a view to eliminating discrimination in respect thereof, includes the proscription of the grounds of discrimination, exclusion or preference specified in Art 1(a) of the Convention and those determined in accordance with Art 1(b). Article 1(b) requires Australia (i) to consult with representative employers' and workers' organisations and with other appropriate bodies in order to identify other grounds of unjustified discrimination which have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation and which ought to be proscribed and, pursuant to Art 2, (ii) to proscribe those grounds. The power conferred by s 51(xxix) will support legislation which is enacted in discharge of these obligations. It will not support the proscription of grounds which are neither specified in the Convention nor the subject of the consultation required. There is no obligation on Australia to proscribe a ground which is not specified in the Convention and which has not been the subject of the required consultation. Hence, any law which proscribes such a ground would derive no support from s 51(xxix).”

29                  The authorities to which I have referred establish that the external affairs power in s 51(xxix) is enlivened, inter alia, in respect of legislation that relates to matters of international concern in the sense that they have the capacity to affect Australia’s relations with other countries, irrespective of whether the legislation gives effect to a treaty to which Australia is a party.  It is clear that a broad view has been taken of matters that have the capacity to affect Australia’s relations with other countries, particularly in the area of human rights, and such matters need not necessarily arise from a treaty obligation assumed by Australia.  Thus, in addition to treaties, the provisions of other international instruments such as The Charter of the United Nations and Resolutions of the General Assembly of the United Nations can be significant guides to matters that are of international concern.

30                  Before turning to the material on which the applicant relies to establish that the prohibition of disability discrimination under s 27(2) has effect under s 12(8) it is necessary to determine whether that question is to be considered as at the date of commencement of s 27(2) (1 March 1993) or as at the date of contravention (during 1998).

31                  For the following reasons I have concluded that the relevant date is the date of contravention.  The subject matter with which s 12(8) is concerned is, of its nature, changing.  Thus, matters that are not of international concern or the subject of a treaty in March 1993 may well become matters of international concern or the subject of a treaty at a later date.  Section 12(8) is ambulatory in the sense that it intends to give the Act the widest possible operation permitted by s 51(xxix).  Its purpose is to ensure that the Act prohibits disability discrimination in reliance on the external affairs power at the date upon which the discrimination occurs.  Plainly, an interpretation that the matters raised by s 12(8) are to be considered as at the date of the alleged contravention would give effect to its purpose (see s 15AA of the Acts Interpretation Act 1903 (Cth)).  Further, the provision in s 12(8) that the limited application provisions are to have effect “in relation to discrimination against a person with a disability to the extent that the provisions” can be supported by the external affairs power draws attention to the circumstances of the case in question and, in particular, to the date of the alleged discrimination.  Accordingly, textual, contextual and purposive considerations point to the date of contravention as being the date as at which a determination is to be made for the purposes of s 12(8).  As I later explain, the outcome in the present case would not differ if the relevant date was the date of the commencement of the relevant statutory provisions.

32                  While it is arguable that Arts 22 and 26 of the ICCPR impose upon signatories an obligation to prohibit discrimination on the ground of status, which includes disability, and that the limited application provisions in the Act give effect to that obligation, I prefer to base my decision on whether the limited application provisions relate to matters of international concern.  In that context, the question arising under s 12(8) is whether the limited application provisions in relation to discrimination in work, discrimination in other areas and discrimination involving harassment in Divs 1, 2 and 3 of Pt 2 of the Act relate to matters of international concern.  I have posed the question in that way as, subject to one important qualification, that is the question required to be answered by s 12(8)(e).  The qualification is that the particular limited application provision that is relevant in the present case, namely s 27(2), must form part of the matters that are of international concern.  Thus, if the matter of international concern is shown to be limited to discrimination in work, and not in other areas, that would be of no avail to the applicant as it would follow that s 27(2) would not be part of the matters that are of international concern.  The reason for that is that s 27(2) is concerned with discrimination in relation to membership of clubs or incorporated associations, rather than with discrimination in work.

33                  Discrimination on the ground of disability is offensive to the human dignity that municipal law has come to respect and protect.  That was not always so.  Thus, more than 2,300 years ago Plato in The Republic (at 144) stated:

“As respects, then, the children of worthy persons, I think, they should carry them to some retirement, to certain nurses dwelling apart in a certain quarter of the city; but as for the children of the more depraved, and such of the rest as may be maimed or lame, they will hide them, as is right, in some secret and obscure place.  Yes, indeed, said he, if the race of guardians is to be pure.”

34                  In the infamous case of Buck v Bell 274 US 200 (1927) the attorney for the plaintiff unsuccessfully argued that a Virginia statute, providing for the sexual sterilisation of inmates of institutions found to be afflicted with a hereditary form of insanity or imbecility, was beyond constitutional power as there was no power in the State to rid itself of those citizens deemed undesirable, according to its standards, by means of surgical sterilisation.  The plaintiff’s attorney submitted that if such laws were valid, “[i]n the place of constitutional government of the fathers we shall have set up Plato’s Republic”.  The court accepted eugenic arguments that, as both Carrie Buck’s daughter and her mother were feeble minded, she and society would benefit from sterilization.  The evidence of the daughter’s condition came from a Red Cross nurse who concluded that when she was a month old she was “not quite normal”; it appears that after the court case the daughter was reported to be a bright youngster: see Goldhar, “The Sterilization of Women with an Intellectual Disability”, University of Tasmania Law Review, Vol 10 (1991) 157 at 163-164.  Justice Holmes, delivering the opinion of the court, stated (at 207):

“We have seen more than once that the public welfare may call upon the best citizens for their lives.  It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.  It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.  The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.  Jacobson v. Massachusetts, 197 U.S. 11.  Three generations of imbeciles are enough.”

35                  The Encyclopaedia of Bioethics, Vol 1, New York: The Free Press, 1978 at 458-461 and Joan Hume in “Disability, Feminism and Eugenics: Who has the Right to Decide Who Should or Who Should Not Inhabit the World?” presented at the University of Technology, Sydney, 26 January 1996 briefly outline features of the eugenics movements in the United States and Germany up to the early 1940s.  By 1931, thirty states in the United States had passed compulsory sterilisation measures, some of which applied to a very wide range of “hereditary defectives”, including “sexual perverts”, “drug fines”, “drunkards” and “diseased and degenerate persons”.  In addition to the sterilisation laws, by the 1930s forty-one states had laws which prohibited the marriage of the “insane and “feebleminded”, seventeen prohibited the marriage of people with epilepsy and four outlawed marriage for “confirmed drunkards”.  By January 1935, some 20,000 people with disabilities had been sterilised.

36                  The eugenics movement was also active in Germany.  In the 1920s the racist side of eugenics was emerging in the German, as well as in the American, eugenics movement.  With the rise to power of Hitler, who himself had long emphasised eugenic structures for race improvement, the eugenics movement in Germany became irrevocably intertwined with the Nazi regime.  Hitler had written in Mein Kampf:

“Whoever is not bodily and spiritually healthy and worthy, shall not have the right to pass on his suffering in the body of his children.”

37                  Leading eugenicists became Nazi officials, and other Government leaders also found eugenic concepts appealing.  Eugenic ideas of race and of Aryan superiority were sanctioned by law on 14 July 1933 when Hitler decreed the Hereditary Health Law, or Eugenic Sterilisation Law, which was created to make certain that “less worthy” members of the Third Reich did not transmit their genes.  This law started the process that resulted in the experimentation with euthanasia in 1939 and ultimately to the mass murder of millions of other “undesirables”.  The Nazi laws targeted genetically determined conditions such as “inborn feeblemindedness, schizophrenia, manic depression, hereditary deafness, blindness, epilepsy, Huntington’s disease, severe malformations and alcoholism”.  By 1939 between 300,000 and 400,000 people with disabilities were sterilised under this program.  The Nazis secret euthanasia program aimed specifically at people with disabilities commenced in 1939.  The program was initially aimed at children under three with disabilities and people with psychiatric conditions in State run hospitals and institutions.  By 1941, 70,000 psychiatric patients had been killed by gassing or lethal injection.  Then the program extended to children with disabilities over three and other “social undesirables”.  It is believed that by the time the program had ceased, because of Church and family protests in Germany, close to at least 500,000 people with disabilities had perished.  A number of factors, including scientific advances and the extremity of the Nazis led to the decline of the eugenics movement by the latter part of the 1930s.

38                  The shadow of Nazi Germany and the extremities of the eugenics movement contributed to the faith expressed in the Charter of the United Nations proclaimed on June 26, 1945 in “fundamental human rights” and “in the dignity and worth of the human person”.  Among the purposes and principles of the Charter was the achievement of “international co-operation in solving international problems of [a]…humanitarian character”: see Art 3 Ch I.  The functions of the General Assembly included discussion of, and making recommendations about, any questions or matters within the scope of the Charter: see Art 10 Ch IV.  Over time International Conventions and other human rights instruments required the prohibition of disability discrimination.  Initially, such instruments did not expressly deal with discrimination on the ground of disability, although Art 26 of the ICCPR required laws that prohibited discrimination on the ground of “status”.  In that regard the United Nations Committee on Economic, Social and Cultural Rights, in the report of the Economic and Social Council E/C. 12/1994 13/14 December 1994 on the implementation of the ICCPR as at 14 December 1994, observed:

“5.       The Covenant does not refer explicitly to persons with disabilities.  Nevertheless, the Universal Declaration of Human Rights recognizes that all human beings are born free and equal in dignity and rights and, since the Covenant’s provisions apply fully to all members of society, persons with disabilities are clearly entitled to the full range of rights recognized in the Covenant.  In addition, in so far as special treatment is necessary, States parties are required to take appropriate measures, to the maximum extent of their available resources, to enable such persons to seek to overcome any disadvantages, in terms of the enjoyment of the rights specified in the Covenant, flowing from their disability.  Moreover, the requirement contained in article 2 (2) of the Covenant that the rights ‘enunciated…will be exercised without discrimination of any kind’ based on certain specified grounds ‘or other status’ clearly applies to discrimination on the grounds of disability.

6.         The absence of an explicit, disability-related provision in the Covenant can be attributed to the lack of awareness of the importance of addressing this issue explicitly, rather than only by implication, at the time of the drafting of the Covenant over a quarter of a century ago.  More recent international human rights instruments have, however, addressed the issue specifically.  They include the Convention on the Rights of the Child (art. 23); the African Charter on Human and Peoples’ Rights (art. 18(4)); and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (art. 18).  Thus it is now very widely accepted that the human rights of persons with disabilities must be protected and promoted through general, as well as specifically designed, laws, policies and programmes.”

39                  Deficiencies in international instruments concerning the rights of the disabled were recognised by the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations on 9 December 1975.  Clause 1 defined a “disabled person” to mean:

“…any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities.”

40                  The Declaration concerned the “inherent right to respect for [the] human dignity” of disabled persons: see cl 3.  Clause 9 provided:

“Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities.”

41                  Clause 10 provided that disabled persons shall be protected, inter alia:

“against all treatment of a discriminatory, abusive or degrading nature”.

42                  International recognition of the rights of the disabled was promoted by the Declaration of the United Nations General Assembly of an annual “International Day of Disabled Persons” which was celebrated and acknowledged internationally throughout the 1990’s.  On 24 May 1990 the Economic and Social Council of the United Nations authorised the United Nations Commission for Social Development to prepare Standard Rules on the Equalisation of Opportunities for Persons with Disabilities.  The Standard Rules were adopted by a resolution of the General Assembly of the United Nations on 20 December 1993, which requested member states to apply and support the implementation of the Standard Rules.  Clause 6 of the resolution summarised previous international action:

“The rights of persons with disabilities have been the subject of much attention in the United Nations and other international organizations over a long period of time.  The most important outcome of the International Year of Disabled Persons, 1981, was the World Programme of Action concerning Disabled Persons, adopted by the General Assembly by its resolution 37/52 of 3 December 1982.  The Year and the World Programme of Action provided a strong impetus for progress in the field.  They both emphasized the right of persons with disabilities to the same opportunities as other citizens and to an equal share in the improvements in living conditions resulting from economic and social development.  There also, for the first time, handicap was defined as a function of the relationship between persons with disabilities and their environment.”

43                  The terms “disability” and “handicap” were defined in cl 17 and 18 of the Standard Rules:

“17.     The term ‘disability’ summarizes a great number of different functional limitations occurring in any population in any country of the world.  People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness.  Such impairments, conditions or illness may be permanent or transitory in nature.

18.       The term ‘handicap’ means the loss or limitation of opportunities to take part in the life of the community on an equal level with others.  It describes the encounter between the person with a disability and the environment.  The purpose of this term is to emphasize the focus on the shortcomings in the environment and in many organized activities in society, for example, information, communication and education, which prevent persons with disabilities from participating on equal terms.”

44                  Relevantly, for present purposes, Rule 10 provided:

“Culture

States will ensure that persons with disabilities are integrated into and can participate in cultural activities on an equal basis.

1.         States should ensure that persons with disabilities have the opportunity to utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of their community, be they in urban or rural areas. …”

45                  Rule 11 provided:

“Recreation and sports

States will take measures to ensure that persons with disabilities have equal opportunities for recreation and sports.”

46                  Rule 12 provided:

“Religion

States will encourage measures for equal participation by persons with disabilities in the religious life of their communities.”

47                  Rule 15 provided:

“Legislation

States  have a responsibility to create the legal bases for measures to achieve the objectives of full participation and equality for persons with disabilities.

1.         National legislation, embodying the rights and obligations of citizens, should include the rights and obligations of persons with disabilities.  States are under an obligation to enable persons with disabilities to exercise their rights, including their human, civil and political rights, on an equal basis with other citizens.   States must ensure that organizations of persons with disabilities are involved in the development of national legislation concerning the rights of persons with disabilities, as well as in the ongoing evaluation of that legislation.

2.         Legislative action may be needed to remove conditions that may adversely affect the lives of persons with disabilities, including harassment and victimization.  Any discriminatory provisions against persons with disabilities must be eliminated.  National legislation should provide for appropriate sanctions in case of violations of the principles of non-discrimination.

3.         National legislation concerning persons with disabilities may appear in two different forms.  The rights and obligations may be incorporated in general legislation or contained in special legislation.  Special legislation for persons with disabilities may be established in several ways:

(a)               By enacting separate legislation, dealing exclusively with disability matters;

(b)               By including disability matters within legislation on particular topics;

(c)               By mentioning persons with disabilities specifically in the texts that serve to interpret existing legislation.

A combination of those different approaches might be desirable.  Affirmative action provisions may also be considered.

4.         States may consider establishing formal statutory complaints mechanisms in order to protect the interests of persons with disabilities.”

48                  Another example of an acceptance that disability discrimination is a matter of international concern is the amendment of the Treaty establishing the European Community, (opened for signature on 25 March 1957 and entered into force on 1 January 1958) by the Treaty of Amsterdam (which was signed on 2 October 1997 and entered into force on 1 May 1999).  The amendment, inter alia, provided for members of the Union to take appropriate action to combat discrimination based on disability.

49                  In the Second Reading Speech, Hansard, House of Representatives, 26 May 1992 at 2751) the Minister stated in respect of the Disability Discrimination Bill 1992:

“The Bill recognises that discrimination against people with disabilities is a matter of international concern.  It is another significant step in fulfilling Australia’s international obligations under a number of United Nations instruments.  These include the International Labour Organisation Convention concerning discrimination in respect of employment and occupation; the International Covenant on Civil and Political Rights; the International Covenant on  Economic, Social and Cultural Rights; and a number of related declarations.”

50                  Clause 12 of the Explanatory Memorandum for the Bill stated in respect of cl 12:

“This clause provides that the legislation is to apply throughout Australia.  The provision is also designed to ensure that all possible Commonwealth Constitutional power is relied upon to support the various provisions of the Act.

In particular sub-clause (8) of this clause indicates that certain provisions of the legislation have effect in relation to discrimination against people with disabilities to the extent that the provisions implement Australian responsibilities under certain international instruments.  Most notably these are the United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights and the International Labour Organisations Convention Number 111 entitled Convention concerning Discrimination in Respect of Employment and Occupation.

In relation to ILO 111 Australia determined in 1988 that disability would be regarded as a distinction, exclusion or preference for the purposes of Article 1(b) of that Convention.  In 1989 Australia gave limited legislative effect to that determination when it enacted regulations under the HREOC Act giving HREOC authority to investigate complaints in relation to discrimination on the basis of disability in employment.

It is also clear from a number of lesser international instruments that discrimination against people with a disability is a matter of concern to the international community generally.  The limited application provisions apply to the extent of that international concern.  The Declaration on the Rights of Disabled Persons, The Declarations on the Rights of Mentally Retarded Persons and The Declaration on the Rights of the Child are just some of the instruments which further indicate how discrimination against people with disabilities is a matter of international concern.”

51                  In the brief outline set out above I have endeavoured to explain why the statement in cl 12 of the Explanatory Memorandum that the limited application provisions (which include s 27 of the Act) relate to matters of international concern, is correct as at 1992 and as at 1998.  As was explained in the Minister’s Second Reading Speech and in the Explanatory Memorandum a number of those provisions give effect to particular treaty obligations.  Of course, those treaties and other international instruments, which deal with particular aspects of discriminatory treatment of the disabled, such as prohibition of discrimination in work, are relevant to the operation of s 12(8).  However, I have endeavoured to focus on the instruments that are of particular relevance to the discrimination prohibited by s 27.  As explained at [29] above it is not determinative that those instruments, other than the ICCPR, do not give rise to obligations, as such, on the part of Australia.

52                  In the outline I have also endeavoured to explain why national disability discrimination has become a matter of international concern.  As was said by Brennan J in Secretary, Department of Health and Community Services v J.W.D. and S.M.D. (1992) 175 CLR 218 (“Marion’s case”) at 266:

“Human dignity is a value common to our municipal law and to international instruments relating to human rights.  The law will protect equally the dignity of the hale and hearty and the dignity of the weak and lame; of the frail baby and of the frail aged; of the intellectually able and of the intellectually disabled.  Thus municipal law satisfies the requirement of the first paragraph of the 1971 United Nations Declaration on the Rights of Mentally Retarded Persons which reads:

‘The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.’

Our law admits of no discrimination against the weak and disadvantaged in their human dignity.  Intellectual disability justifies no impairment of human dignity, no invasion of the right to personal integrity.”

53                  Thus, as at 1992, and as at 1998 prohibition of disability discrimination was a matter of international concern.  The consequences that can follow from disability discrimination, and the ignorance from which it stems, afford a good example of how human rights violations have extended “internal affairs into external affairs” (see Murphy J at 171 in The Tasmanian Dam Case).

54                  The respondent relied upon the decision of O’Loughlin J in Brannigan v Commonwealth of Australia (2000) 110 FCR 566 at 571-572 where his Honour observed that there is nothing in s 15, which relates to discrimination in employment, to suggest it relates to “matters external to Australia” or to matters of “international concern”.  His Honour’s observation was made in relation to whether s 15 had extra-territorial operation.  In that context his Honour was plainly correct in observing that there is nothing in the section that suggests it is intended to have extra-territorial operation.  The same observation may be made in relation to s 27(2).  However, s 12(8) is concerned with a quite different question which was not before O’Loughlin J and which is Honour did not address.

55                  The respondent also contended that the definition of disability in s 4 is wider than the definition of disability in the Declaration of the Rights of the Disabled.  While that may be correct it is to be noted that, as was demonstrated in the Standard Rules, concepts of disability have changed and broadened since the making of the Declaration in 1975.  In any event, I am satisfied that the definition in s 4 does not go beyond the area of disability discrimination that is a matter of international concern.

56                  The respondents’ contention that prohibition of disability discrimination, of the kind dealt with in s 27(2) of the Act, is a domestic or internal matter overlooks history and the consequences of the absence of such a prohibition.  There can be little doubt that if Australia failed to protect the disabled by failing to prohibit discrimination against disabled persons, including in relation to their participation in the areas with which s 27 of the Act is concerned (namely, the whole spectrum of social, literary, cultural, political, sporting, athletic an other lawful creative or recreational activities in Australia), Australia would be failing in its duties as a member of the United Nation and as a member of the civilised world.  That failure would undoubtedly have the capacity to affect Australia’s relations with other countries.  I note my decision accords with the view expressed by Commissioner WJ Carter of the Human Rights and Equal Opportunity Commission: see Allen v United Grand Lodge of Queensland, 12 April 1999.

57                  Plainly, the purpose or object of Divs 1, 2 and 3 of Pt 2 of the Act is to deal with international concerns about disability discrimination.  Accordingly, I am satisfied that the limited application provisions in Divs 1, 2 and 3 of Pt 2 of the Act but, in particular s 27(2), have effect by reason of s 12(8)(e).  The separate question is to be considered accordingly.

58                  Finally, I turn to the question of costs.  I have some concerns about the extensive costs that have been incurred in this matter.  Although the proceeding was commenced in the Federal Court I indicated to the parties that the proceeding was a matter appropriate for hearing in the Federal Magistrates Court.  However, as the question raised by s 12(8)(e) of the Act was of some importance I agreed to the question being dealt with as a separate question under O 29 r 2.  The respondent’s challenge to s 27(2) could have been considered in the Magistrates Court as a preliminary issue or as part of the respondent’s defence, rather than at a separate hearing in the Federal Court.  In all the circumstances I have concluded that the appropriate order as to costs is that the applicant’s costs of and incidental to the separate

question be his costs in the cause.  I also propose to order that the proceeding now be transferred to the Federal Magistrates Court.

Associate:

Dated:              24 October 2002