Faulkner v ACE Insurance Limited [2011] NSWADT 36

Faulkner v ACE Insurance Limited [2011] NSWADT 36

The policy's requirement that applicants be 'Australian Residents'—excluding non-protected SCV holders (such as the applicant)—constitutes indirect discrimination on the ground of race under s 19(a) via s 7(1)(c) of the ADA. The requirement is not reasonable, as non-protected SCV holders could sufficiently register with Centrelink and did not present greater fraud risk, so exclusion was not justified. The complaint is substantiated only with respect to the AERP Policy; applications regarding the other two policies failed as the applicant did not demonstrate an actual desire or attempt to obtain cover.

Jurisdiction
Australia
Judgment Date
23 February 2011
Procedural Posture
Complaint Under Anti Discrimination Law / Final Tribunal Decision
Outcome
Complaint substantiated in part. Complaint upheld regarding the AERP Policy, dismissed regarding IS Policy and AECP Policy. Directions made for further steps.
Legal Topics
['race Discrimination' 'indirect Discrimination' 'provision of Goods and Services' 'insurance Law']
['anti Discrimination Law'] ['race Discrimination' 'indirect Discrimination' 'provision of Goods and Services' 'insurance Law']

Case Brief

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Procedural Posture

Complaint Under Anti Discrimination Law / Final Tribunal Decision

Legal Issues

  1. 1 ['Whether refusal to provide insurance services based on visa status is race discrimination under the Anti Discrimination Act 1977 (NSW).' "Whether the insurer's policy restrictions indirectly discriminated against New Zealand citizens who are non-protected Special Category Visa holders." 'Whether direct or indirect discrimination occurred in relation to the refusal to supply insurance services under specified policies.']

Ratio Decidendi

The policy's requirement that applicants be 'Australian Residents'—excluding non-protected SCV holders (such as the applicant)—constitutes indirect discrimination on the ground of race under s 19(a) via s 7(1)(c) of the ADA. The requirement is not reasonable, as non-protected SCV holders could sufficiently register with Centrelink and did not present greater fraud risk, so exclusion was not justified. The complaint is substantiated only with respect to the AERP Policy; applications regarding the other two policies failed as the applicant did not demonstrate an actual desire or attempt to obtain cover.

Court Disposition

Complaint substantiated in part. Complaint upheld regarding the AERP Policy, dismissed regarding IS Policy and AECP Policy. Directions made for further steps.

Orders

  • ["The complaint regarding ACE's refusal to supply insurance under the AERP Policy to Mr Faulkner in August-September 2009 is substantiated." 'The complaints regarding the Ina-suitcase Policy and the American Express Credit Protection Policy are dismissed.' 'The respondent is to provide an affidavit from a senior...