Case: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290
Outcome: cited
The present case is neatly bracketed by two authorities concerning deceased persons and anti-discrimination legislation. In Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 a complainant under the Sex Discrimination Act 1984 (Cth) died after her complaint was lodged. The Full Court of the Federal Court held that the complaint survived and could be pursued by the complainant's executrix. In CUNA Mutual Group Ltd v Bryant [2000] FCA 970 ; (2000) 102 FCR 270 the alleged discrimination occurred after death. An insurer under a loan protection policy refused payment because the deceased insured had falsely declared that he had never tested positive for HIV. Branson J held that no claim lay under the Disability Discrimination Act 1992 (Cth). In the present case the alleged discrimination occurred before death but the claim was lodged after death. 38 In Stephenson at 296, Wilcox J (with whom the other members of the Court agreed) said the common law rule that personal actions do not survive the death of the plaintiff had no application where a right of action is created by statute. Guidance must be sought in the statute itself. 39 It is clear from s 60 that a complainant need not be the person against whom the discriminatory conduct was directed. Section 60(1)(f) specifically so provides. Moreover, pars (b)(ii), (c)(ii) and (d) of s 60(1) provide for complaints on behalf of classes of persons discriminated against. The Act contains no restriction on the size of the classes. It is an obvious enough possibility that between the alleged discrimination and the lodging of a complaint some members of the class might have died. 40 The orders that the Tribunal may make under s 89(1) include: (b) an order that the respondent "redress any loss, injury or humiliation suffered by the complainant", and (d) an order that the respondent pay "to the complainant ... an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination ... ". In this context, "the complainant" suffering the loss, humiliation, etc must be the person discriminated against, even though the complainant for the purposes of s 60 may be, as we have seen, some other person. There seems to be no logical reason, consistent with the beneficial policy of the Anti-Discrimination Act , why redress and compensation should not be ordered in respect of a deceased person. 41 Redress of humiliation (par (b)) may serve the educative function of the Act by a public finding that particular discriminatory conduct was unlawful. As Wilcox J pointed out in Stephenson at 297, the primary purpose of anti-discrimination legislation is directed towards the elimination of discrimination. An inquiry and determination by the Tribunal into a complaint may assist that purpose by a formal declaration as to the unlawfulness of the conduct concerned, notwithstanding the death of the person discriminated against. 42 Compensation (par (d)) may benefit those who have suffered financially as a result of the discriminatory conduct. To expand on the last-mentioned point, one obvious field where discrimination may occur is in employment. Indeed it is the first of the "areas of activity" mentioned in s 22(1). Suppose a man is dismissed by his employer on a ground prohibited by s 16(1). He cannot get another job. He has a wife and young children to support. Then he dies. It would be an odd construction of the Act which had the effect of exempting the unlawfully discriminating employer from any liability to the dependents of the deceased. 43 I conclude that Ms Campbell can bring her complaint notwithstanding that it relates to discrimination against a person who has died. Indeed, so much more should this be the case when the complaint is that there is a direct connection between the discrimination and the death.