LORANG v MATER MISERICORDIAE HOSPITAL and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and CLARKE JA 18 May 1994, 30 June 1994 [1994] NSWCA 362 ANTI-DISCRIMINATION LEGISLATION — Anti-Discrimination Act 1977 — discrimination on ground of age — hospital notifies intended termination of specialist anaesthetist's appointment as Visiting Medical Officer in accordance with its by-laws — by-laws provide that specialist anaesthetists "are required to retire on their sixty-fifth birthday and are not eligible for re-appointment'? — whether hospital's conduct is unlawful under s49ZV of the Act — whether hospital has engaged in conduct "with a view to causing an employee to retire from employment" on the ground of the employee's age — specialist anaesthetist concedes he is not an employee of the hospital — argues that his employment (including contracts to provide services) was with patients referred by reason of his appointment to the hospital — argues that conduct of hospital caused him, as employee of patients, to retire from employment, viz as anaesthetist at hospital — Equal Opportunity Tribunal finds in favour of anaesthetist — on appeal to Supreme Court Hulme J reverses finding for error of law — on further appeal to the Court of Appeal — held: (Gleeson CJ and Clarke JA; Kirby P dissenting): STATUTES — construction — Anti-Discrimination Act 1977 — proper approach to construction — purposive approach — achievement of purposes or objects of the Act as disclosed in its language — achievement of beneficial and reformatory purposes of Act — avoidance of overly narrow construction which would defeat its purposes. (1) The hospital did not engage in conduct "with a view to" causing the anaesthetist to retire. Rajski v Carson and Ors (1988) 15 NSWLR 84 (CA) considered; (2) No conduct caused the anaesthetist to "retire from employment" - he was fully able to continue in his employment as there was no relevant employment but merely an appointment at the hospital with a facility of receiving referred patients; (3) Appeal dismissed. Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd and Ors (1993) 118 ALR 80 (FFC), 104 (FFC) considered. HUMAN RIGHTS - equal opportunity - discrimination on grounds of age - termination of appointment of specialist anaesthetist to hospital on attaining age 65 - objective of legislation - whether contrary to objective as disclosed in provisions of the Act - held: (Gleeson CJ and Clarke JA; Kirby P dissenting): It is not. WORDS and PHRASES - "causing an employee to retire" - "employment" - "with a view to". Anti-Discrimination Act 1977, s4, s49ZU, s49ZV, s49ZW, s49ZX. Anti-Discrimination (Compulsory Retirement) Amendment Act 1990. Anti-Discrimination (Age Discrimination) Amendment Act 1993. Age Discrimination in Employment Act 1967 (US). Gleeson CJ I have had the benefit of reading in draft form the judgments of Kirby P and Clarke JA. I agree generally with the reasons of Clarke JA, and with his Honour's conclusion. I am therefore in a position to state my own views relatively briefly. 2 UNREPORTED JUDGMENTS The relevant legislation has been substantially amended since the events with which this appeal is concerned. The outcome of the present case depends upon the meaning and effect of s49ZV of the Anti-Discrimination Act 1977. In considering whether the respondent's conduct in enforcing its by-laws was engaged in with a view to causing Dr Lorang to retire from employment, within the meaning of s49ZV, it is necessary to bear in mind two things. First, it has not been suggested on this appeal that Dr Lorang was in the employment of the respondent. It is conceded that he was not. If reasons for that concession are required, they may be found in the judgment of Denning LJ in Cassidy v Ministry of Health [1951] 2 KB 343 at 362. It may well be correct to say that, by virtue of his accreditation, the appellant held a form of unpaid office in the organisation of the respondent, and that the withdrawal of his accreditation upon reaching the age of sixty-five involved a compulsory retirement from that office. That, however, has nothing to do with the present appeal. There has been no suggestion before this court that the appellant was forced to retire from the respondent's employment. Second, counsel for the appellant disclaimed any reliance upon an argument that the respondent caused the appellant to retire from employment in the sense that it caused him to abandon his profession as an anaesthetist. Whilst the appellant adduced some evidence, in support of an argument that he suffered financial harm from the respondent's conduct, to show that his loss of accreditation at the Mater Hospital would have effects extending beyond that hospital, there was nothing to support a conclusion that he would be forced out of practice altogether, and certainly nothing to suggest that the by-law in question was either adopted or enforced with a view to bringing about that result. The word "retire", of course, is often used to mean the voluntary or involuntary cessation of a particular form of income-earning activity. There are cases in which retirement of that kind also involves retirement from employment within the meaning of s49ZV. This, however, is not a case where the respondent has set out to force the appellant to stop practising his profession. What it has done has been, by the withdrawal of his accreditation, to stop him practising his profession at the Mater Hospital and thereby to bring about the consequence that he can no longer enter into contracts of employment with patients under which his services are to be performed there. The question to be determined is whether that falls within s49ZV(d). It is accepted by counsel for the appellant that the appellant has not been forced by the respondent's conduct to fail to perform or complete any subsisting contract to provide services. Assuming such a contract to be a contract of employment for the purposes of the Act, no such employment of the appellant was brought to an end by the conduct of the respondent. The conduct of the respondent made it impossible for the appellant to enter into future contracts of that kind; but only in cases where the appellant's services are to be provided at the respondent's hospital. In other words, on the ground of the appellant's age, the respondent has denied the appellant the accreditation, and the use of its premises and facilities, necessary to enable him to enter into and perform future contracts of services where those services are to be provided at the Mater Hospital. Unless its conduct is prohibited by the Act, the wisdom of the respondent's policy is a matter for those in charge of the administration of the hospital, and those who agree to conform to its by-laws. There has been no attempt before this court to investigate the merits of the respondent's policy; and rightly so. They are irrelevant to the appeal. It is not difficult to guess some of the reasons that might URJ LORANG v MATER MISERICORDIAE HOSPITAL and ANOR (Kirby P) 3 have resulted in the making of the by-law in question, but it is not for us to decide whether they are good reasons. If the by-law contravenes the Act, it does not matter how reasonable it might be; and if it does not contravene the Act the question of whether it is a good thing from the point of view of the hospital administration, or the welfare of patients, or the legitimate expectations of the medical profession, is none of our concern. It is a subject about which we have little information and as to which we have heard no argument. If the argument for the appellant is correct it would seem to have equal application, for example, to a partnership agreement amongst solicitors, or accountants, with an agreed retiring age of, say, sixty-five. Whilst Pt4E of the Act, in the form with which we are concerned, applies only to retirement from employment, the appellant argues that disabling a person from entering into future contracts to provide services, even if only at a particular place or within a particular organisational structure, amounts to causing retirement from employment. (At the time with which we are concerned, s49ZYE was not in effect.) In my view the argument for the appellant involves giving the statutory concept of retirement from employment a strained and unnatural meaning. Kirby P I agree that the appeal should be dismissed. This appeal from a decision of Hulme J in the Common Law Division of the Supreme Court concerns the provisions of the Anti-Discrimination Act 1977 (the Act) relating to age discrimination. The principal provision in question is s49ZV of the Act. Dr Henri Lorang (the appellant) complained that the Mater Misericordiae Hospital (the hospital) was in breach of that provision of the Act. The Equal Opportunity Tribunal (the Tribunal) decided in his favour. The hospital appealed to the Supreme Court. Hulme J allowed the appeal. He set aside the decision of the Tribunal and ordered the appellant to pay the hospital's costs. From those orders the appellant has appealed to this Court. The appeals to the Supreme Court from the Tribunal are confined to grievances "on a question of law". That phrase has been narrowly construed by this Court in other contexts and in the specific context of the Tribunal. See Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA), 156; Haines v Leves and Anor (1987) 8 NSWLR 442 (CA), 469; QANTAS Airways Ltd v Gubbins and Ors (1992) 28 NSWLR 26 (CA), 33. The determination of merits is reserved by law to the Tribunal. The sole function of the Supreme Court is to correct errors of law. It was not submitted that an appeal did not lie in the circumstances. Cf Clisdell vy Commissioner of Police (1993) 31 NSWLR 555 (CA), 558. AN ANAESTHETIST'S ENGAGEMENT IS TERMINATED There was no substantial dispute about the facts. It was found by the Tribunal that the appellant, before 1993, had been appointed by the hospital as a visiting medical specialist (anaesthetist). The evidence disclosed that, typically, his services as an anaesthetist were engaged, initially, by the surgeon who was to carry out surgery on a particular patient. The appellant would usually have a consultation with the patient prior to the surgery when the direct engagement by the client would be expressly or tacitly confirmed. When the surgery was completed, the appellant billed the patient separately from both the surgeon and the hospital. He would be paid by the patient. The appellant's accreditation by the hospital was for fixed periods. On 17 October 1989 he was accredited until 30 June 1992. The hospital sought from the appellant a written acceptance of the offer of reappointment. On 31 October 1992, the appellant duly confirmed his acceptance of the position offered. The 4 UNREPORTED JUDGMENTS reappointment was purportedly subject to the "by-laws" of the hospital. Although described as "by-laws", these are merely the rules made by the board of the hospital, a company. They have no statutory force. They are, of course, subject to any relevant legislation which is inconsistent with their terms. "By-law" 61 of the then "by-laws" provided for appointment for a period of three years, subject to provisos specified. These included provisos which referred to the appointee's chronological age. New "by-laws" came into force in September 1991. The new "by-law" 67 reflected the old "by-law" 61, except for extending the period from three years to five years. The relevant provisions of the new "by-law" were: "67. All appointments to a position of Visiting Practitioner shall, unless otherwise determined by the Board, be for a period five (5) years provided that: (d) Except as provided for in By-law 67(e), an appointment shall be automatically terminated on 31st December of the year in which the Visiting Practitioner attains the age of sixty-five years and thereafter such Visiting Practitioner shall only be eligible for annual re-appointment subject to any conditions established by the Hospital. Any such Visiting Practitioner may upon reaching the age of seventy years be considered by the Board for the position of Consultant Emeritus; (e) Visiting Practitioners who have been appointed to the category and speciality of Visiting Medical Specialist (Anaesthetist) are REQUIRED TO RETIRE ON THEIR SIXTY FIFTH BIRTHDAY and are not eligible for re-appointment." (emphasis added) Following the expiry of the term concluding on 30 June 1992, and pursuant to new "by-law" 67, the appellant's term of appointment was extended by the hospital to the end of a period of five years. Thus, in the ordinary course, it would have continued until 30 June 1994, the day of this judgment. The appellant reached his sixty-fifth birthday on 9 May 1993. If "by-law" 67 was valid and unaffected by the provisions of the Act, the appellant would have been required, by "by-law" 67(e), to retire on that birthday. However, the appellant wished to continue his appointment. He contested the lawfulness of the "forced retirement." According to a letter which was in evidence, a vote was conducted of anaesthetists at the hospital. The motion proposed by the appellant "was not passed since the voting was tied". The Chief Executive Officer therefore wrote to the appellant on 7 April 1993: "I am therefore unable to take to our Board of Directors any recommendation in the short term that we should vary our By-Laws and change the RETIREMENT AGE of Anaesthetists." (emphasis added) The Chief Executive Officer promised a later ballot to review the "by-law" but concluded: "In the meantime, you will recognise that I am bound by the existing By-Laws, and I would therefore ask that you also accept their validity, until such time as the ballot question has been undertaken, and the matter reviewed further." The appellant did not accept the validity of the "by-laws". He asserted that they could not stand against provisions of the Act which forbade (putting it neutrally) the termination of his engagement by the hospital upon the basis of nothing more than his chronological age. Neither the "by-laws" nor any ballot of anaesthetists or decision of the board of directors of the hospital could legitimise such termination if it were contrary to the provision of the Act. In evidence before the Tribunal, the appellant explained the concerns which he had about the potentially devastating effect of the termination of his appointment to the respondent hospital. In evidence which was not challenged, he deposed to URJ LORANG v MATER MISERICORDIAE HOSPITAL and ANOR (Kirby P) 5 the income derived from patients acquired through surgeons who likewise enjoyed appointments at the hospital. Specifically he stated: "I may also be affected by having to retire from the Mater Hospital due to breakdown in contacts with Surgeons, upon whom I am dependent for work. For example, there are two Surgeons who use me both at the Mater and at Mosman. I believe that one of those surgeons may not continue to use me at Mosman if he cannot use me at the Mater." The appellant deposed to the fact that he was not aware of any suggestion of incompetence on his part. Nor, indeed, has any such suggestion ever been made. In these circumstances it may perhaps be regarded as a trifle unrealistic to suggest that the termination left the appellant free to work as an anaesthetist. Of course it did. But since anaesthetists do not normally perform their professional functions otherwise than in hospitals, the termination had a devastating effect on the appellant's real ability to perform his vocation. THE PROVISIONS OF THE ACT The provisions of the Act in question in this appeal are found in Pt4E, titled "Compulsory Retirement from Employment on the Ground of Age". This Part was inserted in the Act by the Anti-Discrimination (Compulsory Retirement) Amendment Act 1990 which commenced on | January 1991. Since the Act was so amended, it has been further amended by the Anti-Discrimination (Age Discrimination) Amendment Act 1993. However, that Act has not yet commenced. Its provisions have no relevance to the present appeal. The first section of Pt4E is s49ZU. It introduces a staged application of the Part to employees in the public sector generally (1 January 1991), in local government (1 January 1992), in fire fighting and prevention and State coal mines (1 January 1993) and in the case of "'all other employees in New South Wales whether or not employed subject to an award or agreement" (1 January 1993). The critical provision appears under the heading "Compulsory Retirement Unlawful" and reads: "49ZV It is unlawful for a person: (a) to retire an employee from employment; or (b) to require an employee to retire from employment; or (c) to threaten to retire an employee from employment; or (d) to engage in conduct with a view to causing an employee to retire from employment; on the ground of the employee's age." This section introduced a dramatic change to what had hitherto been the common practice of compulsory retirement of persons in the public and private sectors on the attainment of a specified birthdate. Before the amendment it was indeed no business of the courts to interfere in policies of retirement. But after it came into force it became the business of the Tribunal and, on appeal, this Court. The full extent of the change is shown by three other provisions of the Part: * By s49ZU(2) the Part applies "despite any compulsory retirement aged fixed by an award or agreement [within the meaning of the Industrial Arbitration Act 1940] made before, on or after 1 January 1991"; * By s49ZW it is provided that any provision of an Act or statutory instrument which relates to a person employed in the public sector and requires the person to retire from, or to vacate, office on or after reaching a specified age is of no effect if, under the Part, it is unlawful for the person to be so retired from employment; and * By s49ZX of the Act there are a number of specified exemptions which are provided for. These are the compulsory retirement of judicial officers (para(a), police officers (para(b)); 6 UNREPORTED JUDGMENTS tenured officers unable to be removed except following an address of both or either Houses of Parliament (para(c)) and specified persons or holders of office prescribed by regulation (para(d)). The appellant contended before the Tribunal, but did not contend in this Court, that he was an employee of the hospital. In this Court, his case was that he was an employee, within the extended meaning of that term, not of the hospital but of the patients who engaged him as a result of his appointment to the hospital. Without that appointment he would/could not be so engaged. He relied on the definition of "employment" in s4(1) of the Act which reads: "'Employment' includes work under a contract for services." Thus the appellant's case, upon which he succeeded in the Tribunal but failed before Hulme J, was that the hospital had engaged in unlawful discrimination by engaging in conduct (viz the enforcement of the compulsory retirement of appointed anaesthetists at the age of sixty five years) with a view to causing him, a notional employee under contracts for services with patients, to retire from employment (viz work under contracts for services) on the grounds of his age. The question before this Court is whether Hulme J erred in determining that, in reaching the conclusion which it did, the Tribunal had made an error of law. REASONS OF THE TRIBUNAL The Tribunal's conclusions were: "Tn effect... by enforcing the by-law [the hospital] is engaging in conduct with a view to causing [the appellant] to cease implementing or carrying out work for patients who require the services offered by [the appellant]." The Tribunal had no difficulty in deciding, in the light of its findings of fact, that the hospital had engaged in conduct "with a view to" causing the appellant, a notional employee, to "retire from employment": "In the view of this Tribunal it is therefore reasonable to assume that any action by [the hospital] to enforce the retirement of [the appellant] as a Visiting Medical Specialist (Anaesthetic) at Mater is taken 'with a view to it' causing him to retire from employment in so far as it relates to patients who are to be treated at Mater and is therefore unlawful... In that context and on the basis that the Tribunal has found the complaint substantiated it has the power to make an order enjoining [the hospital] from continuing or repeating that conduct. " DECISION OF THE PRIMARY JUDGE Hulme J considered that in s49ZV, where it used the word "employment" referred to a "particular situation or situations and not to an occupation". But even if that view were wrong, he decided: "The [hospital's] conduct, be it in the terms of by-law 67 or in its letter to the [appellant] insisting he comply with the terms of that by-law in no way required, or could be thought to be an attempt to cause the [appellant] to give up his occupation. These actions... went no further than to deal with the situation of the [appellant's] appointment as a Visiting Practitioner of the [hospital] and, in that capacity, with his use of the [hospital's] facilities. There was nothing to suggest that the... hospital was the only place available wherein the [appellant] could carry on his occupation. Indeed the [appellant's] evidence was that he practised at other hospitals also." Hulme J considered that, where s49ZV spoke of "retiring from employment", it assumed the existence of an "employment" to retire from. The effect of the hospital's conduct on any "future employment" of the appellant was therefore irrelevant. The Act was only addressed to stopping enforced retirement on the ground of age, in respect of employment which was already in being. Because URJ LORANG v MATER MISERICORDIAE HOSPITAL and ANOR (Kirby P) 7 there was no suggestion that the hospital would not have permitted the appellant to conclude any contracts for services with patients who employed him before he retired, there was no offence to s49ZV(d) of the Act. SUBSEQUENT EVENTS The Tribunal did not, in terms, make an order enjoining the hospital from enforcing the provision of "by-law" 56(e). However, it indicated that it was "prepared to make" such an order. Hulme J proceeded upon the footing that such an order had been made. Obviously, that was a sensible course. His Honour's consideration of the matter was concluded on 10 February 1994. It was established by evidence tendered in this Court that, on the following day, the Chief Executive Officer of the hospital wrote to the appellant saying, relevantly: ".. In line with the By-Laws of the hospital, you are no longer accredited to perform anaesthesia within the hospital. I note that you have worked at the Mater for many years, and during that period have obviously provided service to considerable numbers of patients in our care. On behalf of the Sisters of Mercy and the Board of the hospital, may I thank you for your past service to the hospital, and wish you A LONG AND HAPPY RETIREMENT." (emphasis added) It seems clear enough from this letter that the Chief Executive Officer, of the hospital, at least, assumed that the result of the decision of Hulme J was that the appellant would, thereafter, enter into the "retirement" which it was hoped would be "long and happy". What was that retirement from? Presumably the appellant's activity (to use a neutral word) as an anaesthetist at the hospital. It is worth observing that there was no mention in the letter to the appellant of any want of professional competence on his part or any dissatisfaction with the performance of his professional work as an anaesthetist. On the contrary he is thanked for the services he provided to patients. The only problem was his age and the hospital's "by-law". At the time the matter was before the Tribunal and Hulme J, the appellant was still enjoying the benefits of his appointment to the hospital. Although the hearing of this appeal was expedited, no stay was granted or other order made. Accordingly, the presumed order of the Tribunal would now have no effect, if revived. Both parties asked the Court, in the event that the appeal were allowed, to return the matter to the Tribunal to fashion appropriate orders. It is worth recalling that, although by s49ZV the conduct which is impugned is declared "unlawful", it is not criminal. The procedures of the Act envisage conciliation. There are powers, where conciliation has been exhausted, to make orders for reinstatement (see s113(1)(b)(iii)). See also Allders International Pty Ltd v Anstee and Ors. (1986) 5 NSWLR 47 (SC), 70. Moreover, there are also powers to make orders for the payment of damages by way of compensation (s113(1)(b)(i)). Although, under s118(3)(b),this Court has large powers to dispose of the appeal as it sees fit, in view of the changed situation, the sensible course would be to remit the matter to the Tribunal to make orders appropriate to the altered circumstances. But is the appellant entitled to succeed? MATTERS OF APPROACH There is an ambiguity in s49ZV of the Act. The duty of the Court is to give the section the meaning, derived from the language used, which best achieves the purpose of Parliament. That there is an ambiguity is illustrated by the differing opinions expressed as to its operation, first by the Tribunal and then by Hulme J. It is also illustrated by the differences within this Court. 8 UNREPORTED JUDGMENTS The ultimate fidelity of the Court must be to the language of the section. See Re Bolton and Anor; Ex parte Beane (1987) 162 CLR 514, 518. But the modern approach to the specification of the purpose of Parliament is to search for the meaning of the statutory words with an eye fixed on the achievement of the objects apparently sought by Parliament in their enactment. There has long been resistance to this approach, even on the part of distinguished judges. Sir John Latham, in retirement, denounced the purposive approach in strong terms. See (1955) 29 ALJR 217. These views endure. What was the purpose of the amending Act which inserted Pt4E in the anti-discrimination statute? Without objection, the Court received copies of the Second Reading Speech by which the Minister (Mr J Fahey) introduced the measure into the Legislative Assembly. He said, relevantly: "... [The] artificial restrictions that currently operate in the workforce and counteract the effect of the projected shrinking use of the labour pool will be removed. The proposal will lead to a lessening of the dependence of older people on Government and institutionalised support and promote the self-esteem of older workers who face poverty and loss of dignity associated with compulsory retirement when they are still quite capable of making valuable contributions in the workplace. The use of age as a substitute for judgments on individual performance is both socially and economically inefficient. With the aging of the population it is not longer appropriate or viable to demand that individuals retire at a given age. The effect, and indeed objective, of this legislation will be to remove a major form of discrimination against older workers who wish to continue in employment. The Government believes that decisions on whether a worker should be retained must be based on that worker's ability rather than on age. There is no fairness in saying to people that at an arbitrary point in their lives they are no longer capable members of the work force and then summarily dismissing them. Obviously, those who want to continue to work and are capable of working ought to be able to do so. This legislation therefore promotes a choice for people as to how long they remain in the workforce. It can be argued that older, experienced workers contribute much to overall productivity and economic growth, and therefore indirectly increase the overall demand for labour. The Government feels that the nation can ill afford to do without, and in fact desperately needs, a skilled and experienced workforce. The practice of compulsory retirement has been questioned both in Australia and overseas. Specifically, concern has been expressed that the use of age as a substitute for judgment on individual performance is both economically and socially inefficient... Negative stereotypes of older workers are common. They include low productivity and inability to cope with physically demanding work. However, studies recently undertaken have disputed this and have found that older workers possess a strong work ethic, are as productive as younger workers, are dependable and responsible employees who have fewer absences, are more stable and have lower turnover rates and few on-the-job accidents. The result of a more flexible retirement system is that all workers would be subject to the same laws of supply and demand. Not all older people would be able to get work in a competitive environment; nor would all want full-time work." See New South Wales Parliamentary Debates (Legislative Assembly) 22 November 1990, 10390f. The foregoing passage demonstrates how comfortably the provisions relating to age discrimination fit in the context of the Act. The overall purpose of the Act is to help remove stereotypes based upon assumed characteristics of particular URJ LORANG v MATER MISERICORDIAE HOSPITAL and ANOR (Kirby P) 9 categories of persons on grounds of discrimination such as race, sex, marital status, physical impairment, intellectual impairment, homosexuality and, now, age. As the Minister also pointed out (ibid, 10391f) the local legislation in this regard drew upon the statutory experience in the United States of America beginning with the Federal Age Discrimination in Employment Act 1967 (US). The overall object of the legislation is, thus, by rendering age an unlawful basis for enforced retirement, to require those with power over the employment of overs to act, in the future, not upon the basis of compulsory retirement ages (fixed by reference to chronological time) but by reference to the particular merits of the individual concerned. Leaving aside, for the moment, the language of the Act, it is clear beyond doubt that the "by-laws" of the hospital, both in their original and in their amended form, offend against the principle in the Act. The contrary could not be argued by the hospital. Nor did it try. It terminates the appointment of all medical staff upon a criterion fixed by reference to the staff member's age. New "by-law" 67(e) is particularly offensive to the principle expounded by the Minister in that, in the case of specialist anaesthetists, it expressly requires them to retire "on their sixty-fifth birthday" and thereafter "not [to be] eligible for re-appointment". A clearer case of offence to the principle envisaged by the Act could hardly be imagined. Secondly, the purpose expounded by the Minister, and adopted by the amendments to the Act, is a beneficial, reformatory purpose. It is designed (as all such legislation is) to achieve a measure of social engineering. It is clearly unjust to individuals that they should, whether an anaesthetist or in some other occupation, be removed from the emotional, economic and other satisfactions of their employment for no reason other than the anniversary of the date of their birth. Judges and certain others are so obliged by express statutory provision. But, in respect of other employment, Parliament has now forbidden that practice. In the present case, the appellant's unchallenged testimony before the Tribunal was that he was committed to the university education of children. The loss of the appointment at the hospital - with the consequences for other like engagements elsewhere deposed to by him in unchallenged evidence - was clearly a matter of serious moment for him. Compulsory provisions akin to those in the "by-laws" of the hospital have existed for a very long time in Australia, as in other countries. The bold effort of the amendments to the Act, of which s49ZV is the most important, is to remove such instances of individual injustice. It is to require those with power of employment over others to make decisions on individual merits. It is not confined to the actual employees of the person or body with such power. It is to respect the rights of older persons as individuals. It is to remove from them the burden of stereotyping assumptions about their capacities. It is, in short, to achieve extremely important objectives which I take to be the advancement of one aspect of fundamental human rights. This Court should interpret s49ZV as to achieve the foregoing objectives and not narrowly so as to frustrate their attainment. Although it is true, as Hulme J pointed out, that a benefit to the appellant is a burden on the hospital, such burden is not oppressive. The procedures, and limited orders available to, the Tribunal ensure that the objectives of the Act are attained, if possible by conciliation, and with no ultimate purpose beyond the consideration of the appellant on the merits of his capacity for the employment in question rather than the accident of his birthdate. 10 UNREPORTED JUDGMENTS Because it is a highly desirable and just objective, which Parliament is seeking to attain, I would resolve any ambiguity in the legislation in favour of the achievement of the earlier stated purposes. Courts are frequently criticised for unduly narrow construction of legislation generally and of anti-discrimination legislation in particular. See Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia, Oxford University Press, Melbourne, 1990, at 33ff. To the extent that judges frustrate the achievement of the objectives of such legislation, they virtually force those who draft it into complex detail, designed to out-manoeuvre such judicial frustration. I detect in some parts of the drafting of the Act earlier efforts of this kind. Thirdly, there is a related matter of approach. It is that mentioned by Lockhart J in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd and Ors (1993) 118 ALR 80 (FFC), 104 where his Honour said: "Anti-discrimination legislation must be understood, not only by statutory bodies that enforce it, but by all sections of the community because the implications and effects of the legislation could touch us all. It is important that the legislation is not approached and construed with fine and nice distinctions which will not be comprehended by any except experts in the field; nor is there any need for them." I agree in this approach. It was the one taken by Clarke JA (with the concurrence of Hope AJA and myself) in Waterhouse v Bell (1991) 25 NSWLR 99 (CA), 105. It is also the approach taken by the House of Lords in Birmingham City Council v Equal Opportunities Commission [1989] 1 AC 1155 (HL), 1196 and by the Supreme Court of the United States. See United States v William Cramp and Sons Ship and Engine Building Co (1907) 206 US 118, 127f; 51 L Ed 983, 986. Fourthly, it is important to realise that the provision for compulsory retirement which is impugned by me appellant and contained within the "by-laws" of the hospital, is a mirror image of provisions which were formerly very common in Australia - both in true "by-laws" made under legislation (as by university councils or by industrial bodies in the form of statutory awards and agreements.) To this extent, the current "by-law" of the hospital is in no way different from very many similar provisions which, in this State, have been swept away by Pt4E of the Act. This is not to say that the language passed by Parliament may not have missed its target or that the hospital has not slipped through the net cast by s49ZV. But it is to indicate that, if the hospital's "by-law" were struck down by s49ZV, that should cause neither shock nor surprise. Putting it very generally, the hospital's appointment practice was unarguably relevant to the employment of the appellant. Its retirement policy was indisputably posited on the age of the appellant. Thus, if the language of the statute applied, it would be unremarkable. On the contrary, if the statute did not apply to such an "employment practice" it would appear to be by a slip in the language of the Act rather than in the attainment of its objectives. None of the foregoing matters of approach resolves the question before the Court. But they do provide me with the illumination that I now use as I turn to give meaning to the phrase adopted by Parliament in s49ZV(d). THE MEANING OF THE STATUTORY PROHIBITION The first thing to note is that s49ZV is addressed not to an employer as such but to "a person". It thus envisages that some persons, other than employers, will be guilty of the unlawful conduct specified in the paragraphs of the section and grounded in the employee's age. URJ LORANG v MATER MISERICORDIAE HOSPITAL and ANOR (Kirby P) 11 This generality of language is continued in the repeated references throughout the paragraphs of the section to the consequences of the person's conduct for "an employee". It is not for "his, her, their or its employee". It is sufficient that the conduct impugned affects "an employee" in some way relevant to retirement. Similarly, in the case of para(d) of s49ZV, the impugned conduct is to cause an employee "to retire from employment", not from "his, her, their or its employment". "Employment" is used in general terms, doubtless out of recognition of the fact that under s4(1) "employment" includes work under a contract for services. Thus the "employee" may be working under such a contract and not be an employee of the person accused of unlawful discrimination at all. He or she may be employed in the sense of being engaged under a contract for services. By force of the Interpretation Act s8(b) the singular includes the plural. Accordingly, the word "employment" may quite easily be read as encompassing "work under contracts for services", ie contracts in the plural. Then there is the word "retire" in s49ZV(d). A special meaning is given to the concept of retirement by s49ZU(4): "49ZU(4) In the operation of this Part in relation to the retirement of an employee or class of employees, the meaning of retirement may vary according to the particular circumstances..." There is no difficulty in holding that the conduct of the hospital caused the appellant to "retire" in the sense that it caused him to cease to have what was hitherto a state of "employment", ie a continuous series of engagements for the supply of services to patients who employed him. On the hospital's own reappointment of the appellant, this state of "employment" was to continue for a period of five years. Presumably it would have done so, but for the supervention of the sixty-fifth anniversary of his birth. True it is that in a theoretical sense the appellant could work for others (if they would appoint him). But that is completely irrelevant. Whenever a person is dismissed on an unlawful ground he or she may possibly gain employment elsewhere. That is not the issue. The issue is whether the particular "employment" [here contracts of service with patients of the hospital] is terminated by reference to age. Clearly it was. The appellant in this Court accepted the view expressed by Hulme J that the word "employment", when used in s49ZV referred to "a particular situation or situations" and not to an occupation as such. I am prepared to assume that this is so. Some support for this notion comes from the repetition of the word in the paragraphs of the section. In para(a), para(b) and para(c) the word suggests a particular situation(s) and not an occupation. The two points upon which Hulme J therefore differed from the Tribunal related to the phrase in s49ZV(d) "with a view to" and his Honour's conclusion that "employment" meant particular and existing contracts of service and for services and not prospective contracts of this kind. In my view Hulme J erred in the view he took on both these points. So far as the phrase "with a view to" is concerned, it has been the subject of judicial exposition in various contexts. See eg Rajski v Carson and Ors (1988) 15 NSWLR 84 (CA) 93f, 102f. However, care must be taken in usurping the factual conclusion of the Tribunal on the application of the phrase to the facts of this case. I remind myself that even a perverse finding of fact is immune from correction in an appeal limited to a grievance in point of law. The Supreme Court must be dutiful in the observance of its limited role. 12 UNREPORTED JUDGMENTS It was for the Tribunal to determine what was the "view" of the hospital in the conduct in which it was engaged. The "view" referred to in s49ZV(d) is not the motive of the hospital, ie its subjective purposes. Anti-discrimination legislation is not typically concerned with motive, in the subjective sense. Its purpose is to change conduct. If, therefore, conduct is engaged in, which has the natural and foreseeable consequence of causing an employee to retire from "employment", that fact will render such conduct susceptible to characterisation of being done "with a view" to causing that retirement. The Tribunal having so determined, and there being ample evidence to support its determination, Hulme J was not entitled to substitute a different opinion on the "view" of the hospital for that reached, on the facts, by the Tribunal. It could not be said that there was a total absence of evidence on the purpose of the hospital as being to cause the appellant, in his relationship to his employment with patients, "to retire". Perhaps the proof of the pudding of the hospital's purpose and expectation can be found in the letter sent to the appellant after Hulme J's decision wishing him a "long and happy retirement". I am not criticising that letter. It simply states the obvious. If you cut an anaesthetist off from a source of his patients you must be taken to know that such conduct will cause him to retire from the employment, at least by those patients whose supply you terminate at source. The bedrock of Hulme J's judgment was, however, his Honour's opinion that the word "employment" at the end of s49ZV(d) envisaged particular contracts of employment with particular patients and not to a state or situation of being employed or in work. In the Macquarie Dictionary definition of "employment", the second meaning given is "the state of being employed". This is the definition for which the appellant argued. It is the definition which advances the purpose of s49ZV. It is therefore the construction of the paragraph which I favour. Far from being an artificial or strained interpretation of the Act, I find it the natural one which attains the Act's purposes in this case. The very narrow construction which Hulme J favoured excludes from the protective ambit of the Act people whose "employment" involves a series of individual contracts for the provision of services, such as a taxi driver, a regular specialised tradesman or a specialist anaesthetist appointed by a hospital board. This Court should not frustrate the attainment of the objectives of the section by adopting such an unduly narrow view of its ambit. CONCLUSIONS AND ORDERS The result is, in my view, Hulme J erred in the approach he took to the legal requirements of s49ZV(d) of the Act. I see no error of law in the approach which the Tribunal took on the application of that paragraph to the facts found. It was open to the Tribunal to conclude that the hospital had engaged in conduct "with a view" to causing the appellant, an employee of patients provided through the hospital, to retire from "employment" as a specialist anaesthetist appointed by the hospital to perform anaesthetic services for patients there. Plainly, the ground of the enforced retirement of the appellant, in this sense, was his age. No other ground has ever been suggested. By s49ZV of the Act that conduct of the hospital was therefore unlawful. The Tribunal was right to so hold. With respect to his Honour, Hulme J was wrong to disturb the Tribunal's decision. No error of law was revealed in it. In light of the agreement of the parties, in the circumstances which have changed, the matter should be remitted to the Tribunal to make fresh orders appropriate to those changed circumstances. The orders which I favour are: -Appeal allowed; URJ — LORANG v MATER MISERICORDIAE HOSPITAL and ANOR (Clarke JA) 13 2. Set aside the orders of Hulme J in the Common Law Division of the Supreme Court; 3. In lieu thereof, order: (a) that the appeal to the Supreme Court from the orders of the Equal Opportunity Tribunal be dismissed; (b) that the proceedings be returned to the Tribunal for the making of orders in accordance with law; (c) that the respondent pay the costs of the proceedings in the Common Law Division of the Supreme Court and in this Court; and (d) that, in respect of the costs of the appeal to this Court, the respondent have a certificate under the Suitors' Fund Act 1951. Clarke JA The appellant is a medical practitioner who had worked as an anaesthetist at the hospital conducted by the first respondent for many years when, in October 1989, he was accredited as a visiting medical officer until 30 June 1992. That accreditation was continued and was in force when he turned 65 on 9 May 1993. Because of the terms of by-law 67 of the first respondent's by-laws that date was a significant one. The relevant part of by-law 67 provides: "All appointments to a position of Visiting Practitioner shall, unless otherwise determined by the Board, be for a period of five (5) years provided that: (e) Visiting Practitioners who have been appointed to the category and speciality of Visiting Medical Specialist (Anaesthetist) are required to retire on their 65th birthday and are not eligible for re-appointment;" Prior to turning 65 the appellant had attempted to have that by-law changed. However on 7 April 1993 he was advised by the first respondent's Chief Executive Officer that a ballot would be held on the topic and that: "In the meantime, you will recognise that I am bound by the existing By-laws, and I would therefore ask that you also accept their validity, until such time as the ballot question has been undertaken, and the matter reviewed further." (I interpose the observation that a ballot was held in due course and the result was adverse to the appellant.) Following receipt of that letter the appellant commenced proceedings before the Equal Opportunity Tribunal contending that by-law 67(e) was unlawful and that the first respondent's conduct, constituted or evidenced by the letter of 7 April 1993, was in breach of s49ZV of the Anti- Discrimination Act 1977 ("the Act"). That section relevantly provides: "Tt is unlawful for a person (a) to retire an employee from employment; or (b) to require an employee to retire from employment; or (c) to threaten to retire an employee from employment; or (d) to engage in conduct with a view to causing an employee to retire from employment, on the ground of the employee's age." The appellant asserted that the first respondent had acted contrary to the provisions of s49ZV(b) and s49ZV(d) of the Act. The Equal Opportunity Tribunal held that in effect the first respondent by enforcing by-law 67 was engaging in conduct of the type referred to in s49ZV(d) of the Act. The determination of the Tribunal concluded with these words: "The Tribunal is accordingly prepared to make the order sought by Lorang pursuant to the powers vested in it under s113(b)(ii) in the Terms that the Respondent Mater its servants and agents is enjoined from enforcing the provisions of by-law 67(e) so long as Lorang is capable of rendering services to patients of the Respondent Mater in a capable manner without risk to the patients. " 14 UNREPORTED JUDGMENTS The first respondent appealed from that decision pursuant to s118 of the Act which provides for an appeal on a question of law. The appeal was heard by Hulme J who concluded that the Tribunal had indeed made an error of law and that upon the evidence, which was essentially agreed, the Tribunal should have dismissed the appellant's application. His Honour, accordingly, set aside the decision of the second respondent and made an appropriate costs order. This decision has been challenged in the present appeal. The primary ground argued was that his Honour was in error in concluding that there was no evidence to support the conclusion that in applying by-law 67(e) of the by-laws the first respondent was engaging in conduct with a view to causing an employee to retire from employment. Before outlining the thrust of the appellant's submissions it is necessary to identify the nature of the appellant's appointment as a Visiting Practitioner of the first respondent's hospital. The evidence concerning this matter is not in dispute and it is convenient to quote directly from, first, the affidavit of Mr Dykes, the Chief Executive Officer of the first respondent and, secondly, that of the appellant. In para7, para8 and para9 of his affidavit sworn 3 June 1993 Mr Dykes said: "7, Dr Lorang's Application was considered by the Accreditation Committee on 14 March 1983 and he was accredited to anaesthetise at the Mater Hospital from the date of the meeting until 30 September 1983. The Accreditation Committee comprised the Chairman of the Board, two additional non-medical Board members, two nominees of the Medical Staff Executive and the Chairman of the Medical Staff Association Executive, as well as the Chief Executive Officer. 8. Once a specialist is accredited with the Hospital, he or she is given privileges to use the facilities of the Mater and to admit patients to the hospital. The only obligations upon a Visiting Medical Specialist are to abide by the Hospital's by-laws. Visiting Medical Specialists are not obliged to perform any other duty for or on behalf of the Hospital, to supply any services to the Hospital or even to use the facilities of the Hospital during the term of their appointment. In the case of a Visiting Medical Anaesthetist, he is not required to advise the hospital whether he is available to anaesthetise as this is a matter between the anaesthetist and the surgeon who is performing the operation. In all cases, it is the surgeon who selects his anaesthetist, however, there are occasions where the Hospital will assist the surgeon in finding an anaesthetist where the anaesthetist arranged by the surgeon is not available. 9. There are no financial arrangements between the Hospital and Dr Lorang. Dr Lorang is not required to pay the hospital any monies for the use of its facilities and the hospital does not pay Dr Lorang any monies for performing anaesthetic services for patients. Dr Lorang invoices his patients directly and the Hospital is not involved with this procedure. The Hospital provides accommodation, theatre facilities and post-operative care to the patient, for which the patient is invoiced separately, but does not have any involvement or control over the operative procedure performed by the surgeon and anaesthetist or the post operative care prescribed. It is the surgeon and, to a lesser extent, the anaesthetist who direct the medical staff in relation to the post-operative care to be adopted." That evidence was supplemented by evidence of the appellant which set out the practical operation of the arrangement: "6. As a Visiting Medical Specialist (Anaesthetist) at the Mater, I have the right to admit patients to the Hospital. As the Mater is a private hospital the system is that a Surgeon contacts me on behalf of a patient, indicating that I will act as URJ — LORANG v MATER MISERICORDIAE HOSPITAL and ANOR (Clarke JA) 15 Anaesthetist for the patient whilst that Surgeon is operating. Generally speaking, a Surgeon will request me to act as Anaesthetist for all patients in a particular list at a hospital. 7. As the Anaesthetist, I will visit each patient the night before their surgery and discuss with the patient any allergies or other special requirements so far as anaesthetic is concerned. When the surgery is completed, I bill that patient separately. The patient is also billed separately by the Surgeon and the Hospital." This evidence led the Tribunal to conclude that there was no "employment" relationship between the appellant and first respondent. This conclusion was clearly correct and was not challenged either before Hulme J or this Court. The appellant acted as an anaesthetist for a number of patients in the hospital, usually at the request of a surgeon, and billed each patient separately for his services. In these circumstances it is readily apparent that there was no relationship of employer and employee, even if those words be given an extended meaning, between the appellant and the first respondent. As I have said this was accepted by the appellant. In summary the appellant's argument is that he was an employee of each patient to whom he rendered services, and whom he billed, and that in removing his accreditation at the hospital the first respondent was either requiring him to retire from employment or engaging in conduct with a view to causing him to retire from employment. As I have earlier indicated the employment to which the appellant refers is employment by a patient and in order to make good his submission the appellant has relied on a number of provisions in the Act which widen, according to the submission, the meaning of employment. In s4(1) of the Act it is provided, inter alia, that employment includes work under a contract for services. In the same subsection "services" is defined to include services of any profession. Thus, the argument proceeds, the appellant was working in employment, albeit under a contract for services, and his employer in each instance was his patient. Because, however, there is no evidence that the conduct of the first respondent affected a single contract of employment the case that was put was that the effect of the withdrawal of accreditation was to cause the appellant to retire from a number of employments. In order to overcome the difficulties which arise as a consequence of the expression "to retire from" and the use of the word "employment" (in the singular) reference was made to a further provision of the Act and s7 and s8(b) of the Interpretation Act 1987. The further relevant section of the Act is s49ZU which, in subs(3), defines "employee" for the purposes of that part to include a commission agent and a contract worker and in subs(iv) states that the meaning of 'retirement may vary according to the particular circumstances', thereby introducing a flexible element. The provisions of the Interpretation Act to which I have referred provide, first, that the term "employee" has a meaning cognate with employment and, second, that the singular includes the plural. The consequence of the latter provision being, so it was argued, that the term 'employment' may be read as encompassing work under contracts for services as well as a contract for services. The actual submission put to the Court, as refined by counsel, was that 'if a person has a job at a particular place then that person is an employee in employment at that place for the purposes of the Act'. In my opinion Hulme J was, with respect, correct in his conclusion and in the substance of his reasons. Notwithstanding my acceptance of his Honour's essential reasoning I would like to express in my own words why I have reached the same conclusion. In so doing I will assume the correctness of the proposition 16 UNREPORTED JUDGMENTS that when the appellant performed anaesthetic services for a patient he was employed by that person. It should not be thought, however, that in acting upon that assumption I accept that it is necessarily correct. There seems to me to be a respectable argument that it was not the intention of the legislature to include a contract of the nature entered into between an anaesthetist and a patient within the term 'employment' in the Act. In the circumstances of this case it is unnecessary in this case to take time with that argument and I will, as I have said, assume that the appellant was in employment with each patient to whom he rendered services. I will also assume, without deciding, that the use of the word 'person' in s49ZV casts the net wider than an employer, even an employer in an extended sense. That is, that a person other than an employer (even in the extended sense) may engage in conduct which is unlawful within the terms of one or other of the sub-paragraphs of that section. What is clear in the section is that in order for the provisions of s49ZV to be attracted there must be an existing employment, whether in the strict sense or a contract for services, from which the person to whom the section refers, for instance, retires the employee. By way of emphasis, one could hardly retire an employee from an employment which is not in existence. Whether the term 'employment' is understood in the narrow or wider sense it necessarily involves an agreement under which an identified employer employs an identified employee. The section is clearly dealing with conduct which affects, or may affect, an existing status as an employee under a contract under employment. Conversely the section has nothing to say about a possible future contract of employment or future contracts of employment. Nothing in it renders unlawful conduct which impedes, or may impede, the entry by a person into a future contract of employment. I take that to be clear but if support is needed for the proposition it is to be found in the phrase 'to retire from' which appears in each of the subsections. It is not apt to speak of retiring an employee from an employment into which he or she has not, at the time of the conduct which is said to attract the provisions of the Act, already engaged. Accordingly, it is necessary at the outset to identify an employment from which, as the case may be, a person is retiring employee. So understood s49ZV of the Act directs attention, first, at the question whether the complainant is an employee (i.e. party to a contract of employment) and secondly whether another person has, for instance, threatened to retire that person from his or her employment. In many instances there may well be no question as to the existence of a contract of employment and the issue will focus on the conduct of the person said to have acted unlawfully but in the present case the facts focus on the fundamental pre-condition to the operation of the section and that is whether the appellant was an employee in employment. The appellant does not contend that the first respondent required him to retire from an existing employment. Nor does he suggest that the first respondent engaged in conduct with a view to causing him to retire from such an employment. What he says is that the enforcement of by-law 67(e) will have the effect of preventing him engaging in contracts of employment with patients in the Mater Hospital at any time after he has turned 65. He does not assert that any such contract existed at the time of the actions said to infringe the section. Rather he says that his expectation is that he would have entered into contracts in the future and that the first respondent's action had prevented him doing so. He URJ — LORANG v MATER MISERICORDIAE HOSPITAL and ANOR (Clarke JA) 17 submits that in this way the first respondent is making the requirement referred to in s49ZV(b) or engaging in the conduct referred to in s49ZV(d). In my opinion the argument cannot be sustained. There is no evidence that the acts complained of interfered in any way with an existing state of employment. Nor does the appellant say that they do. It follows that there is no evidentiary support for a conclusion that there has been a breach of any subsection of s47ZV and the appeal should be dismissed with costs. Two final things should be said. First, the appellant's accreditation as a Visiting Practitioner constituted, in essence, an appointment to an office from which the first respondent has required the appellant to retire. The section under consideration does not deal with retirement from offices and the contrary was not argued. Secondly, the appellant asserted that his Honour had wrongly intruded into areas of fact but insofar as any observations made by his Honour forming the basis of the submission had no effect on the result of the case it is unnecessary to deal with the particular submission. The appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: SJ Gageler Solicitors: Tress Cocks and Maddox Counsel for the first Respondent: WH Nicholas QC and PR Nash Solicitors: Hunt and Hunt Counsel for the second Respondent (Tribunal): Submitting appearance Solicitors: HK Roberts (Crown Solicitor) (submitting appearance)