Following a complaint to the Australian Human Rights Commission which terminated in September 2015, the appellant filed an application in the Federal Circuit Court seeking a declaration and orders against the respondent, a private hospital, for alleged unlawful discrimination.
It was alleged that the respondent had discriminated against her as an associate of a person with a disability, being her husband, in contravention of various provisions of the Disability Discrimination Act (Cth) (the DD Act). The respondent, it was alleged, had refused to provide sign language interpreting services to the appellant’s husband for the scheduled birth of the couple’s child.
Senior Counsel for the appellant submitted that her husband had a right to be present at the birth and to be given information in a way he could understand (subsequently described as ‘services’) so he could engage in decision-making about the birth of his child. It was submitted the respondent had not made reasonable adjustments in accordance with s.5(2) of the DD Act, the effect of which was to treat the appellant and her husband less favourably than another person without the disability.
The primary judge summarily dismissed the application on the grounds that it did not have reasonable prospects of success and constituted an abuse of process. In doing so, he expressed the view that the claim “seems to me to be on its face patently something that’s inarguable”. Otherwise, it would mean that “everywhere that the applicant and her husband went, services in the nature of translation had to be provided”.
On appeal the Court overturned the primary judge’s decision and remitted the matter for hearing. The Court found that as Section 4(1) of the DD Act defines “services” inclusively, it was arguable that the services in question included services by way of information to the husband so that he could support the appellant during the birth, confer with her as necessary, participate in the making of decisions about the treatment of the appellant and their child and, if necessary, give consent to treatment and procedures if the appellant was unable to do so. It held that it was plainly arguable that communication with the husband was not a separate service but a part of the service being provided to the appellant.
The appellant ultimately gave birth at another hospital which provided her husband with an Auslan interpreter.
A link to the decision is here.