A Discriminating Society?

Discrimination is one of the areas that the law has had an increasing focus on. There are restrictions on discrimination based on racial, gender, disability, and many other grounds. Generally speaking complaints about discrimination must go to the Australian Human Rights Commission before any court proceedings can be taken. The idea is for complaints to be conciliated to reach an early, negotiated, resolution before formal proceedings.

Of course, not everything can be resolved early, and then litigation ensues. The recent Federal Court decision of Hinton v Alpha Westmead Private Hospital was a good example of the cure sometimes being worse than the illness until, thankfully, a potential injustice was corrected on appeal.

Ms Hinton brought a complaint against the hospital as it refused to provide an Auslan interpreter for her deaf husband for the scheduled birth of their child. Ms Hinton was entitled to do as the “associate” of a person with a disability.

In what must have been a very distressing experience for the plaintiff, the first judge struck out the claim off his own bat at what should have been a mundane, procedural, appearance. The Judge described the complaint as a “trifle”, “nothing more than a try on” and “an abuse of process on its face”. He (the gender should be a surprise to no one) also compared the childbirth experience to buying a packet of chips, the comparison being if the complaint was upheld a deaf person buying a packet of chips from a shop could demand that the shop provide an interpreter.

On appeal the Federal Court pointed out the available excuse of “unjustifiable hardship” (namely that a shop would be able to say that having an Auslan interpreter present just in case a deaf person came in would be an unjustifiable hardship) and upheld the validity of a claim by an “associate” of the person discriminated against. The matter re-instated for hearing.

So what’s the moral? If you have been discriminated against, don’t just simply let the matter rest, even if you initially cop even more rough treatment by the Court. The law does provide redress to those the subject of discrimination. Interestingly in this case the appeal Judges directed that the hearing of this matter not be held before the first judge on the basis of apprehended bias, after all a fair go should be part of the law!

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