Characteristic of impairment
— Purvis distinguished
A woman who relied on Auslan to communicate because of a hearing impairment, claimed she was subjected to impairment discrimination in her dealings with police, because they failed to provide an Auslan interpreter and failed to investigate her complaints in a timely manner. The woman had been involved in a physical altercation at the home she shared with others. Police attended the incident and communicated with her by writing in the police officer's notebook and speaking with a hearing person. The woman later complained of fraud, and attended the police station on multiple occasions seeking assistance. On at least three occasions she was told an interpreter would be organised for a formal statement, and that it might take some time to organise.
At first instance, the tribunal said there was no evidence that the referral of the combined incidents to the CIB was less favourably treatment, or that a hearing person with communication difficulties would have been treated more favourably that the woman.
On the first appeal to the Appeal Tribunal, the woman argued that the appropriate comparator was someone who was not hearing impaired and who had no relevant communication difficulty. The Appeal Tribunal said that argument was inconsistent with the reasoning of the High Court in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92. The appellant student in Purvis had an impairment that manifested in disturbed behaviour, which had included violence to teachers. The High Court held that the circumstances
for the comparison included the factual premise of the behaviour that had occurred.
On further appeal, the Court of Appeal said the Act had to be construed from a consideration of the Act as a whole, and distinguished Purvis , which was decided under the Disability Discrimination Act 1992 (Cth). The Disability Discrimination Act did not contain an equivalent of section 8 of the Queensland Anti-Discrimination Act 1991 , by which the meaning of discrimination on the basis of impairment is defined to include discrimination on the basis of a characteristic of that impairment. The Court accepted that deafness is an impairment, and communication by Auslan is a characteristic that persons who are deaf usually possess.
The Court found the Appeal Tribunal had overlooked the effect of section 8 on section 10 (meaning of direct discrimination) of the Anti-Discrimination Act . The effect of section 8 in combination with section 10, is to proscribe discrimination on the basis of the woman's ability to communicate by speech. That proscription would be ineffective if the characteristic of the impairment was also treated as a circumstance in the comparison for the purpose of section 10.
The Court said the Appeal Tribunal was wrong to liken the characteristic of the woman's impairment with the incidents of violent behaviour that had taken place in Purvis . The complication in Purvis of the behaviour also being an incident of the disability, did not exist in the present case.
The Court found the Appeal Tribunal misunderstood the relevance of the reasoning in Purvis and thereby erred in law in identifying the relevant comparator. In effect, the woman's case as to the findings of fact which should have been made by the QCAT member were not properly considered, because in each case the wrong legal test was applied.
The Court noted that the outcome may be the same, but as that did not plainly appear, the case was remitted to the Appeal Tribunal for rehearing.
Woodforth v State of Queensland [2017] QCA 100 (23 May 2017)
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