Discrimination law

The NSW Court of Appeal in Sydney Local Health Network v QY and QZ [2011] NSWCA 412 has found that the partner and friend of a man who died with HIV were not discriminated against under the Anti-Discrimination Act 1977 (NSW) because of the way his autopsy was carried out. Mr B died in 2007, apparently by his own hand, with the coroner under the Coroners Act 1980 (NSW) ordering an autopsy by the Department of Forensic Medicine regarding a 'suspicious death'.

In QY & QZ v Sydney South West Area Health Service (EOD) [2010] NSWADTAP 48 they argued that they experienced discrimination on the basis that forensic pathologists at the Glebe morgue had not provided a service to them (reconstructing Mr B's body) that the morgue would have provided had he not suffered the disability of HIV. They were therefore forced to tell some of Mr B's family of his illness. Mr B is dead and presumably beyond caring about his privacy or the distress of his relatives.

NSW does not reconstruct the dissected cadavers of people known to have HIV. That reconstriction is a matter of the morgue's occupational health & safety rules:

Hepatitis C or HIV positive bodies are not to be reconstructed after autopsy. All family members are informed and asked to view the body before autopsy. After completion of the autopsy, the body is double bagged, the outer bag yellow and to be clearly labelled with 'not reconstructed', then placed in the body storage area.

In the initial finding Mr QZ and Ms QY (the partner and friend) were held to be capable of suffering discrimination as a relative or associate with a disability or associates of people with a protected sexual orientation. the Court of Appeal disagreed, ruling that the B was not a "person" at the time of the alleged discrimination and that they were not "relatives or associates". Young JA

A person is only an associate so long as the relationship continues.

It may be that there is a certain illogicality in confining [the law] to association with living persons. However, the pattern of growth of the Act is that the legislature by degrees amends the act to deal with more and more situations and, as at 2007, it had only progressed this far.

Campbell JA commented -

I have reached the same conclusion as his Honour concerning the fate of the appeal, but on narrower grounds. I am not persuaded that it is only a living person who can be a "person" within the meaning of the Anti-Discrimination Act 1977. However an "associate" of a person within the meaning of the Act must be a person who is living at the time that the discrimination in question is alleged to have occurred. That is a sufficient reason why there has been no contravention of the Act in the present case. ...

There is no reason readily apparent from a reading of the Act why discrimination on the basis of a characteristic of someone who was once a relative or associate, but is no longer a relative or associate at the time of the differential conduct, is not also prohibited. However, that consequence flows from the language of the Act. It may be that Parliament took the view that certain circumstances were unlikely, or occurred too infrequently to warrant legislating against. These circumstances might include:

(1) discrimination on the basis of a characteristic that a deceased associate had;

(2) discrimination on the basis of a characteristic that any other person who was once an associate but is no longer an associate had; and

(3) discrimination on the basis of a characteristic that a former spouse or relation by affinity had.

However it cannot be said that there is any basis in the text of the Act for concluding that that was so.

Protecting living persons against discrimination is not the sole object of the Act. As well, the terms of the Act shows that it has an objective of affecting societal standards by discouraging discrimination and promoting equality. One way in which it does this is by attaching sanctions to discriminatory conduct on the basis of a particular characteristic. This creates an incentive not to engage in such behaviour, which has a tendency to protect all persons with the particular characteristic (whether now alive or not) from future discriminatory behaviour.

The court examined if HIV/AIDS met the definition of disability. It also considered whether the morgue could be said to have provided a "service' to Mr B's friends in terms of the Act. Young JA referred to Jackson, The Law of Cadavers (Prentice Hall Inc, New York, 1936) which quotes Foley v Phelps 37 NYS 471, 474 (1896)-

The right is to possession of the corpse in the same condition it was in when death supervened. It is the right to what remains when breath leaves the body, and not merely to such a hacked, hewed, and mutilated corpse as some stranger ... may choose to turn over to an afflicted relative.

The Court referred to s 52A of the Coroners Act in ruling that a doctor performing the autopsy was not liable for the consequences.

QZ and QY were ordered to pay the costs of the health service representing the morgue.