Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
26 February 2007

(Another reason) why not to fly with British Airways

Independent Online reports that a British businessperson and his South African partner have laid a complaint with the Human Rights Commission (HRC) against Comair (British Airways in SA) about sexual orientation discrimination, after they were ordered by an air hostess to “cover up” while on a domestic flight earlier this month.

One would think the two were snogging away and generally behaving in a lascivious way to incur the wrath of the British Airways cabin crew. But no, according to one of the two, Jamie Robertson, the whole palaver was caused because during the flight his partner, Francois van Tonder, leaned with his head on Robertson’s shoulder while Robertson had his arm around his partner’s shoulder.

The British Airways spokesperson is stupid enough to admit that they had asked them to cover up because:

[o]ur cabin crew on the said flight were called upon by passengers because they were uncomfortable with the extent of Robertson and his partner’s public displays of amorous behaviour.

Although the spokesperson also argues that the behaviour of the two was “amorous” and that BA does not tolerate any amorous behaviour on its flights, it seems to me BA’s real defence is that the company is not homophobic, but some of its customers are.

This won’t fly unless they can show that the couple did far more than holding and comforting each other. In 2000 in the case of Hoffmann v SAA the Constitutional Court rejected an argument by SAA that it was allowed to discriminate against HIV positive individuals and could refuse to appoint them as cabin crew.

SAA had argued that because customers do not want to be served by HIV positive cabin crew, it would commercially disadvantage SAA to employ HIV positive cabin crew. As foreign carriers are not subject to the Constitution and because many of them do discriminate against HIV positive people, SAA customers would stop flying with the airline unless they too discriminated against HIV positive people.

In the Hoffmann case Justice Sandile Ncgobo rejected this argument and stated that “prejudice can never justify discrimination”. This means BA cannot rely on the prejudice of its customers to justify its homophobic actions. It can only win such a case if they can show that they would also have ordered a heterosexual couple doing exactly what these two did to cover up.

As someone who flies fairly regularly I would find it hard to believe that BA could show that this is indeed the case. How many times have one seen a young in love couple holding hands and even stealing the odd kiss and not once were they asked to cover up – obviously because airlines do not have many hetero-phobic people flying with them.

So, unless the couple is completely misrepresenting the facts, BA is in for a bumpy ride. Personally I always thought it was a terrible airline with haughty, rude service, so it just confirms my prejudice against them.

In any case, I won’t be flying with BA or Comair soon if I can help it, that’s for sure.

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