A Townsville man has lost his bid to have the State pay for a religious ceremony at his father’s funeral.
Angelos Angelopoulos’s father died in June 2018, and when Mr Angelopoulos could not afford a Greek Orthodox funeral service and burial his father had wanted, he applied for and was granted burial assistance under the Burials Assistance Act 1965 (Qld).
Funding was provided in October 2018 for the re-opening of a pre-purchased burial plot, a graveside service, the funeral director’s fee, a coffin and any required preparation of the body and transport from the morgue to the burial site.
A term of the funding was that it would not extend to costs associated with the conduct of a Greek Orthodox service and viewing of the deceased in an open coffin, which accorded with the religious ceremony in the Greek Orthodox Church.
Mr Angelopoulos’s father was eventually buried in November 2018 after the Greek community and Greek Orthodox Church was able to fund a church service but not a viewing of his body in an open coffin.
That month, Mr Angelopoulos complained to the Anti-Discrimination Commission. He contended that the state had breached the Anti-Discrimination Act 1991 (Qld) by imposing the funding term which excluded the expenses of the church service and viewing of the deceased as part of the ceremony, which required him to bury his father without his complying with his father’s and his own religious beliefs.
He argued this constituted indirect discrimination, in that a higher proportion of people who were not of Greek Orthodox faith would be able to comply with the term and bury family members without a church service or private viewing.
In January 2009, the Commission referred the matter to the Queensland Civil and Administrative Tribunal (QCAT), which refused the application in May 2022.
The tribunal found the Burials Assistance Act did not provide for payment of expenses related to a religious, cultural or civil remembrance ceremony. It then found the imposition of the term was reasonable under the Anti-Discrimination Act because it was necessary to comply with, and authorised by, the Burials Assistance Act. It also found the Human Rights Act 2019 (Qld) had no application because Mr Angelopoulos’s complaint was made prior to the Act’s commencement.
A subsequent appeal to QCAT (Appeals) (QCATA) was dismissed in October 2023. Mr Angelopoulos then appealed to the Court of Appeal on five grounds: that there had been a denial of natural justice; that QCATA had misinterpreted the Burials Assistance Act, neglected to apply the Anti-Discrimination Act, and overlooked the Human Rights Act; and that the respondent had relied on an affidavit which contained an error of fact.
In a decision delivered in Brisbane on Tuesday, the Court of Appeal dismissed Mr Angelopoulos’s application for leave to appeal the QCATA decision.
Justice Brown, with whom Justices Boddice and Kelly agreed, said the QCAT Act permitted an appeal to the Court of Appeal against a decision of QCATA, but only on a question of law, and only with the court’s leave.
“The respondent conceded grounds 1-3 were matters of law but contends ground 5 is a matter of fact,” he said.
“The respondent submitted however that leave should be refused in relation to grounds 1-3 and 5 above because they were not the subject of the final decision of QCATA dated 31 October 2023 and therefore cannot be the subject of appeal under s 150(2)(b) of the QCAT Act.
“The respondent concedes ground 4 did raise a question of law, and arose out of the final decision of QCATA, but submits there was no error as the HR Act did not apply to the applicant’s complaint and that there was no error to be corrected to avoid a substantial injustice.”
Justice Brown said Mr Angelopoulos contended each question involved a question of law.
“In oral argument he did not cavil with the fact he had not raised grounds 1-3 and 5 before QCATA, but stated he had received some advice from a voluntary legal centre suggesting he could raise them as part of the appeal,” he said.
“As to ground 4 he contended that there were unidentified authorities supporting the HR Act applying in a case such as this, notwithstanding the commencement date of the HR Act.”
Justice Brown said there was no jurisdiction for the court to determine any appeal in relation to grounds 1 to 3. They, and ground 5, were not the subject of the appeal to QCATA, and in any event, ground 5 did not raise a pure question of law, he said.
In relation to ground 4, he said Section 108(2) of the HR Act provided that the Act did not affect proceedings begun or ended before its commencement; nor did it apply to an act or decision made by a public entity before its commencement.
No order was made as to costs.
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