Angelopoulos v State of Queensland [2022] QCAT 163

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Angelopoulos v State of Queensland [2022] QCAT 163 PARTIES: ANGELOS ANGELOPOULOS (applicant) v STATE OF QUEENSLAND (respondent) APPLICATION NO/S: ADL003-19 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 11 May 2022 HEARING DATE: 29 April 2022 HEARD AT: Brisbane DECISION OF: Member Browne ORDERS: The application referring the complaint filed on 21 January 2019 is dismissed. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where applicant’s deceased father had strong religious, spiritual and cultural beliefs – where applicant applied for funeral assistance under the Burial Assistance Act 1965 (Qld) – where application for burial assistance approved with conditions – where applicant’s request for additional funding for burial according to religious requirements was refused – where contentions of indirect discrimination referred to the Tribunal – whether term imposed that applicant be required to bury his deceased father without a church service or private viewing – whether term was reasonable – whether alleged discrimination was permitted under the Anti- Discrimination Act 1991 (Qld) – whether duty of the chief executive under the Burial Assistance Act 1965 (Qld) is to dispose of the deceased’s body by burial or cremation only – whether a burial or service arranged by the chief executive under the Burial Assistance Act 1965 (Qld) cannot include a separate service – whether orders should be made under s 209 of the Anti-Discrimination Act 1991 (Qld) Acts Interpretation Act 1954 (Qld), s 14A Anti-Discrimination Act 1991 (Qld), s 11, s 101, s 103, s 106, s 204, s 205, s 206, s 209, s 210 Burial Assistance Act 1965 (Qld), s 3, s 4 -- 1 of 8 -- 2 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 R v Raymond [2018] QSC 97 SZTAL v Minister for Immigration and Border Protection (2017) 91 ALR 936 Tafao v State of Queensland [2020] QCATA 76 Waters v Public Transport Corporation (1991) 173 CLR 349 APPEARANCES & REPRESENTATION: Applicant: Self-represented appearing via video conferencing facilities Respondent: Brooks, M J instructed by Crown Law appearing via video conferencing facilities REASONS FOR DECISION [1] Mr Angelopoulos’ father was Greek and had strong Greek Orthodox religious, spiritual and cultural beliefs. Sadly and unexpectedly he passed away in hospital on 23 June 2018. [2] Mr Angelopoulos applied for financial assistance with the service and burial of his deceased father under the Burials Assistance Act 1965 (Qld) (‘BA Act’). Relevantly, the chief executive has, in certain circumstances, a duty under the BA Act to cause to be buried or cremated the body of any person who has died or has been found dead in Queensland where it appears no suitable arrangements for the disposal of the body have been made.1 A person such as a family member of a deceased person in Queensland may apply to the Department of Justice and Attorney-General through the Office of the State Coroner or local Magistrates Court Registry for burial assistance.2 [3] Mr Angelopoulos’ application for financial assistance under the BA Act was eventually approved with conditions. The conditions included that Mr Angelopoulos sign a new or unaltered Statutory Declaration, the Department will arrange a burial including an appropriate, conventional shape and suitably lined coffin but will not fund additional costs associated with a private viewing prior to burial.3 [4] Mr Angelopoulos says that his deceased father could not be buried unless a funeral service is performed in the Greek Orthodox church prior to burial.4 Despite his offer to pay for the costs of the church, flowers for the church service, order of service brochure and any other incidentals in relation to the church service, Mr Angelopoulos says that his request for additional funeral services or funding was refused. [5] Regrettably, there was a considerable delay of over 20 weeks between the passing of Mr Angelopoulos’ father and the service and his burial. The extra financial support 1 BA Act, s 3. 2 See Burial Assistance Guidelines, Office of the Sate Coroner, exhibit 3, attachment 2. 3 Applicant’s statement of contentions dated 9 January 2020 and see exhibits 4, 5 and 9. 4 Ibid. -- 2 of 8 -- 3 needed for the service and burial was received from the generosity of others and Mr Angelopoulos’ deceased father was buried on 16 November 2018.5 [6] In the present matter before the Tribunal, Mr Angelopoulos contends that the respondent breached the Anti-Discrimination Act 1991 (Qld) (‘the Act’) by requiring him to bury his father without a church service or private viewing.6 Mr Angelopoulos contends that the respondent imposed a term that he could not comply with because of his religious beliefs. It is alleged that a higher proportion of people who are not of the Greek Orthodox faith are able to comply with the term and bury family members without a church service or private viewing.7 [7] The issue before the Tribunal is whether the respondent engaged in indirect discrimination within the meaning of s 11 of the Act on the grounds of religious belief/activity by refusing Mr Angelopoulos’ full request for burial assistance in respect of his father’s funeral. More importantly, did the respondent impose a term that was not reasonable namely to decline Mr Angelopoulos’ request for his father’s body to be transported to a church to enable a private viewing and a Greek Orthodox funeral service to be conducted prior to the burial. [8] Mr Angelopoulos seeks various orders from the Tribunal under the Act including a change to the funeral assistance policy, repayment of funeral service costs to the Greek Orthodox community members who contributed funding towards Mr Angelopoulos’ father’s service and burial, compensation for hurt and humiliation and economic loss alleged to have been suffered by Mr Angelopoulos and a written apology. [9] The respondent argues that decisions made pursuant to s 3 of the BA Act to provide a burial or cremation do not amount to unlawful discrimination because s 103 of the Act provides that certain conduct is exempt from the operation of the Act.8 Further to that, the respondent denies that its conduct in making decisions under the BA Act has resulted in Mr Angelopoulos being treated less favourable than a person applying for funeral assistance for next of kin with religious, cultural, racial or linguistic requirements being the comparator nominated by Mr Angelopoulos.9 [10] At the oral hearing before this Tribunal, Ms Brooks appearing for the respondent submitted that the term said to be imposed for the purposes of the second limb of s 11 of the Act is whether a burial or service arranged by the chief executive under the BA Act cannot include a separate service where the body of the deceased is to be taken to a place other than the grave or crematorium. Further to that, Ms Brooks submitted that the Tribunal need only consider whether the term imposed was reasonable.10 Contention of indirect discrimination under the Act [11] Indirect discrimination on the basis of an attribute happens if a person imposes or proposes to impose a term with which a person with an attribute does not or is not 5 Applicant’s statement of contentions dated 9 January 2020 and see exhibits 4, 5 and 9. 6 Application referring the complaint filed on 21 January 2019 and applicant’s statement of contentions dated 9 January 2020, p 5. 7 Applicant’s statement of contentions dated 9 January 2020. 8 Ibid. 9 Submissions of the respondent filed on 6 November 2020. 10 See also submissions of the respondent dated 6 November 2020, [44]. -- 3 of 8 -- 4 able to comply; and with which a higher proportion of people without the attribute comply or are able to comply; and that is not reasonable.11 [12] The question of whether a term is reasonable depends on all of the relevant circumstances of the case.12 All relevant factors must be weighed when determining ‘reasonableness’.13 [13] It is not necessary that the person imposing or proposing to impose the term is aware of the indirect discrimination.14 Section 204 of the Act provides that the complainant or applicant must prove on the balance of probabilities that the respondent breached the Act. The respondent must establish on the balance of probabilities that a term complained of by the applicant is reasonable and/or an exemption applies.15 [14] The Act provides that it is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption applies.16 Relevant to the present matter, s 106 of the Act provides that a person may do an act that is necessary to comply with or is specifically authorised by an existing provision of another Act. [15] It is important to note that Mr Angelopoulos’ complaint to the Anti-Discrimination Commission of Queensland is dated 25 October 2018 and was referred to the Tribunal on 15 January 2020 prior to the commencement of the Human Rights Act 2019 (Qld) (HR Act). I am satisfied that the HR Act does not apply to the present matter because Mr Angelopoulos’ complaint was made prior to its commencement.17 [16] It is non-contentious and I accept that for the purposes of Mr Angelopoulos’ complaint the relevant attribute is religious belief or religious activity and the area of activity for the purposes of the Act is State laws and programs.18 [17] I accept Mr Angelopoulos’ unchallenged evidence that his late father was Greek and had strong Greek Orthodox religious, spiritual and cultural beliefs.19 I accept Mr Angelopoulos’ contention that, as stated, ‘an adherent of the Orthodox religion cannot be buried unless a funeral service is performed in the church prior to the burial’.20 Further to that, I accept that, as contended, it is a requirement in the Greek Orthodox religion to conduct the service in an open coffin whereby the deceased can be viewed privately prior to the church and burial service.21 [18] It is also non-contentious in this matter that Mr Angelopoulos applied for financial assistance under the BA Act. There was an exchange of correspondence between Mr Angelopoulos’ legal representatives and the Department on various dates in 2018 about the grant and the reasons for seeking extra financial assistance prior to Mr 11 The Act, s 11. 12 The Act, s 11(2). 13 See Waters v Public Transport Corporation (1991) 173 CLR 349, 395. 14 The Act, s 11(3). 15 The Act, s 205, s 206. 16 The Act, s 104 to s 113, inclusive. 17 See s 108(2)(a) and Tafao v State of Queensland [2020] QCATA 76, [18]. 18 See part 2 and s 101 of the Act and the respondent’s submissions dared 6 November 2020, p 3. 19 Statement of Angelos Angelopoulos, exhibit 2, [11] and [12]. 20 Applicant’s statement of contention dated 9 January 2020, p 3. 21 Ibid. -- 4 of 8 -- 5 Angelopoulos filing a complaint with the Anti-Discrimination Commissioner of Queensland on 25 October 2018.22 [19] By letter dated 19 October 2018, the respondent noted Mr Angelopoulos’ wishes to have a private viewing of his father prior to burial and said that the costs associated with this service is beyond the scope of the assistance contemplated by the BA Act and do no form part of the contract with funeral directors who provide burial assistance on behalf of the Department. The respondent, amongst other things, said that the fund helps families who have no other resources available to them within the constraints of managing competing priorities for limited tax-payer money. In response to the costs sought by Mr Angelopoulos for the service and burial, the respondent said as follows: …The costs associated with this service is beyond the scope of the assistance contemplated by the [BA Act] and do not form part of the contract with funeral directors who provide burial assistance on behalf of the DJAG. This does not prevent Mr Angelopoulos from holding a Greek Orthodox graveside service and I would encourage your client to consider this option. Queensland is a multi-cultural state with diverse range of cultures and religions. Should DJAG agree to provide a church service and viewing in the current circumstances, then it would be obliged to provide a similar offer to all applicants of all cultures and religion. The cost to the State would be very significant and this would be a huge impost on limited Government funds to provide specialised funeral services, as opposed to a simple burial, for each and every culture and religion in circumstances where burial assistance is approved. …23 [20] At the oral hearing before this Tribunal Mr Angelopoulos submitted that, amongst other things, the additional costs of the incidentals in relation to the service and burial of his deceased father that were refused by the respondent were negligible and a saving to the State of Queensland. Mr Angelopoulos said that he was providing a burial plot for his deceased father that would otherwise cost the respondent money. Further to that, Mr Angelopoulos submitted that any reasonable person would have allowed his application for financial assistance and made a reasonable adjustment for the application in all of the circumstances surrounding his deceased father’s death and his own personal circumstances. Mr Angelopoulos said that after his father passed away in hospital there was a coronial investigation and he is still grieving about his father’s death. Mr Angelopoulos also said that he is a person with impairments and is genuinely struggling on a disability support pension. The BA Act – An Act to assist in the ‘disposal of bodies’ [21] The application of the BA Act is relevant to the present matter before the Tribunal because in responding to the contentions of indirect discrimination, the respondent argues that the refusal of additional expenses is in accordance with the provisions of the legislation and the Guidelines and is reasonable in order to properly manage the resources available in the consolidated fund. Further to that and amongst other things, the respondent argues that if the funds were not properly managed the respondent would have greater difficulty fulfilling its duty under s 3(1) of the BA Act which is a 22 See exhibits 1, 2, 4, 5, 6, 7, 8, 9 and 10. 23 Exhibit 9. -- 5 of 8 -- 6 duty necessary to protect public health, not a duty to provide for the individual cultural and religious requirements relating to burial and cremation of applicants.24 [22] In response, Mr Angelopoulos contends, amongst other things, that the BA Act is unclear and it is possible that at the time of its enactment the legislators did not consider technological advancements to provide for lengthier storage of deceased bodies and the communities changing cultural demographic and religious landscape.25 Further to that, at the oral hearing before this Tribunal Mr Angelopoulos submitted that the words ‘other place’ for the purposes of s 4 of the BA Act includes ‘a church’. [23] The contentions and arguments advanced by the respective parties about the BA Act raise a question of statutory construction as to the meaning of ‘buried or cremated’ for the purposes of s 3 of the BA Act. Further, whether the use of the words ‘other place’ in s 4 of the BA Act include ‘a church’, as contended by Mr Angelopoulos. [24] It is settled law that an interpretation that will best achieve the purpose of the Act is to be preferred.26 The starting point is the text itself and its context and purpose.27 The meaning of the text may require consideration of the context including the general purpose and policy of a provision.28 [25] The purpose of the BA Act is to assist in the disposal of bodies by providing for the burial or cremation of deceased persons in certain cases and for purposes connected therewith, and to validate certain burials. Section 3(1) of the BA Act imposes a duty on the chief executive to ‘cause to be buried or cremated’ the body of any person who has died or has been found dead in Queensland, in any cases where it appears to the chief executive that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the chief executive. Section 3(3) provides that the chief executive shall not cause a body to be cremated under this section where the chief executive has reason to believe that cremation would be ‘contrary to the wishes of the deceased’. [26] Section 4 of the BA Act provides that all expenses incurred by the chief executive under s 3 of the BA Act including the expense of ‘conveying the body to a morgue or other place’ shall be paid from the consolidated fund. [27] The terms ‘burial’ and cremation’ are not defined under the BA Act. The Macquarie Dictionary defines ‘burial’ as ‘the act of burying’; ‘cremate’ as ‘to reduce (a corpse) to ashes by fire and ‘to consume by fire; burn’. [28] There is an absence of the word ‘funeral’ in the BA Act with respect to the chief executive assisting in the disposal of bodies. Notably, the BA Act only uses the words ‘burial’ and ‘cremation’ of deceased persons in certain cases. The word ‘funeral’ is also defined under the Macquarie Dictionary as ‘the ceremonies connected with the disposition of the body of a dead person…’. 24 Respondent’s response filed on 11 February 2020. 25 Applicant’s additional response to the respondent’s submissions dated 15 April 2021. See also applicant’s outline of legal argument filed on 7 October 2020. 26 Acts Interpretation Act 1954 (Qld), s 14A(1). 27 SZTAL v Minister for Immigration and Border Protection (2017) 91 ALR 936. 28 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47. -- 6 of 8 -- 7 [29] I accept the observations made by Henry J in R v Raymond29 about the provisions of the BA Act that are, by implication, designed as a safety net for cases in which others have not properly disposed of the dead.30 [30] The respondent submits and I accept that the chief executive is limited by s 3 and s 4 to provide for the disposal of a deceased body to a burial and cremation, where the chief executive is satisfied no satisfactory arrangements have been made.31 Further to that, the respondent submits and I accept that the BA Act does not provide for the payment of expenses related to religious or cultural ceremonies or civil remembrance ceremonies and associated additional conveyancing costs of those ceremonies.32 [31] On a fair reading of the BA Act as a whole, the chief executive is required to dispose of the relevant body by burial or cremation only that includes conveying the body to a morgue or other place. In my view, the words ‘other place’ would include, for example, a site for burial such as a cemetery or a site for cremation. The costs associated with the burial or cremation are paid from the consolidated fund. Had the legislature intended the chief executive to pay the expenses associated with a religious or cultural ceremony or a civil remembrance service, the BA Act would clearly stipulate that the chief executive is to provide a service and that such expenses are to be paid by the chief executive. [32] In my view, the BA Act does not provide for the payment of expenses related to a religious, cultural or civil remembrance ceremony and associated additional costs with any religious or cultural ceremony. There is no requirement for the chief executive to incur the expense of a funeral or service only a burial or cremation in certain circumstances ‘where it appears to the chief executive that no suitable arrangements for the disposal of the body have been made or are being made’. Is there a breach of the Act? [33] Here, Mr Angelopoulos’ application for financial assistance was approved for a burial of his deceased father to a total amount of $3,071.95.33 Mr Angelopoulos sought and was refused additional expenses for the conveyance of his deceased father from the morgue to the church and then from the church to the burial site in order for a church service and a private viewing to take place.34 [34] The respondent’s decision to refuse Mr Angelopoulos’ request for further expenses was a decision made under the BA Act. On balance, I am satisfied that the respondent’s decision has not resulted in Mr Angelopoulos being treated less favourably than a person applying for funeral assistance for their deceased next of kin with religious, cultural, racial or linguistic requirements or a person applying for funeral assistance for their deceased next of kin who requires more than a burial or cremation. [35] Here, Mr Angelopoulos was not denied the additional costs associated with a funeral service for his deceased father because of his religious beliefs and activities. The BA 29 R v Raymond [2018] QSC 97. 30 Ibid, [12]. 31 Respondent’s submissions dated 6 November 2020, p 4. 32 Ibid, p 5. 33 Statement of Angelos Angelopoulos, exhibit 2, attachment AA4, AA7, AA9, AA15 and AA20 (see exhibits 4, 5, 6, 7, 8, 9 and 10). 34 Ibid. See also respondent’s submissions dated 6 November 2020, p 6. -- 7 of 8 -- 8 Act does not provide for the cost and associated costs of a funeral. The BA Act requires the chief executive to make arrangements for the disposal of the relevant body such as a burial or cremation. The chief executive is responsible for the administration of the scheme including paying the costs of the disposal of deceased persons where it appears there are no suitable arrangements for the disposal of the body. [36] On balance, I am satisfied that the respondent’s decision to refuse the additional costs claimed by Mr Angelopoulos in relation to his deceased father’s burial did not amount to unlawful discrimination. Further to that, the term as contended, that a burial or service arranged by the chief executive cannot include a separate service where the body of the deceased is to be taken to a place other than the grave or crematorium was made under the BA Act that only requires the chief executive to incur the cost of a burial or cremation. Such costs as provided under s 4(1) of the BA Act include, for example, the expense of conveying the body to a place such as a morgue or other place for burial such as a cemetery. [37] The respondent’s conduct is in all of the circumstances reasonable and is otherwise exempt under s 106 of the Act on the basis that the conduct was necessary to comply with or is specifically authorised by the BA Act. The reason for Mr Angelopoulos’ application being approved with conditions and the decision to refuse additional finding for the religious service that includes a viewing was a decision properly made by the chief executive under the BA Act and not because of Mr Angelopoulos’ or his deceased father’s religious or cultural beliefs. [38] For completeness, I have considered the orders sought by Mr Angelopoulos in the event that I am wrong as to my findings about the complaint and in the event that the respondent has engaged in unlawful discrimination. Relevantly, the Tribunal has the power to make orders under s 209 of the Act if satisfied that the respondent has contravened the Act. [39] I would be disinclined to exercise my discretion under s 209 to order the respondent repay funeral costs to Greek Orthodox community members and a benefactor who donated money towards the costs of the funeral and burial service on the basis that there is no debt owing to Mr Angelopoulos, such costs being money gifted to Mr Angelopoulos. An order mandating changes to the BA Act is in my view beyond the scope of the Tribunal’s discretionary powers under s 209 of the Act and I would otherwise be disinclined to make such an order that concerns legislative change and matters of Parliament. [40] Further to that, I would be disinclined to award Mr Angelopoulos an amount of money for hurt and humiliation. The passing of Mr Angelopoulos’ father is very sad and the delay of his burial I accept would have caused Mr Angelopoulos even more distress. This is not a reason, however, to award compensation in circumstances where the respondent made a decision under relevant legislation that provides for the expenses associated with the burial and cremation of a deceased person in Queensland. [41] The application referring the complaint filed on 21 January 2019 is dismissed.35 I order accordingly. 35 See s 210 of the Act. -- 8 of 8 --