AZRIEL v NSW LAND & HOUSING CORPORATION

Court of Appeal (NSW)|2006-12-13|Before: Santow JA, Ipp JA, Basten JA, Kirby J

CITATION: AZRIEL v NSW LAND & HOUSING CORPORATION [2006] NSWCA 372 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Santow JA at 1; Ipp JA at 3; Basten JA at 4

DECISION: 1. Notice of Motion of Respondent seeking summary dismissal of appeal filed 25 August 2006 dismissed.; 2. Appeal dismissed.

Anti-Discrimination Act 1977 (NSW), ss 4, 7, 19, 20, 123 Housing Act 2001 (NSW), ss 5, 6 LEGISLATION CITED: Interpretation Act 1987 (NSW), s 33 Racial Discrimination Act 1975 (Cth), s 9 Supreme Court Act 1970 (NSW), s 75A

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Baird v State of Queensland [2006] FCAFC 162 Bruce v Cole (1998) 45 NSWLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 CASES CITED: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 King-Ansell v Police [1979] 2 NZLR 531 Mandla v Dowell Lee [1983] 2 AC 458 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 Weal v Bathurst City Council (2000) 111 LGERA 181

PARTIES: Eliezer Azriel - Appellant NSW Land & Housing Corporation - Respondent

COUNSEL: Self Represented - Appellant A. Jungwirth - Respondent

SOLICITORS: Self Represented - Appellant Michael Callan, NSW Land & Housing Corporation - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40728/05 SCCL 30039/04

SANTOW JA IPP JA BASTEN JA

15 December 2006 AZRIEL v NSW LAND & HOUSING CORPORATION Judgment 1 SANTOW JA: I have had the privilege of reading Basten JA's judgment and agree with it subject to one matter, which may indeed be no more than a matter of emphasis. 2 To my mind, that which the New South Wales Land and Housing Corporation ("the Corporation") needed to offer, both to accord with its announced policy and taking into account the relevant legislation including both the Housing Act and the Anti-Discrimination Act 1977 (NSW) was accommodation which was within reasonable walking distance from the Synagogue at which the appellant customarily regularly attended. It did not extend further to a yard for purposes of accommodating a Tabernacle nor a garage. The Corporation necessarily has to have regard to its available housing stock and the legitimate claims of others. There may well come a point where the Corporation doing so may not fully accommodate all of Mr Azriel's religious needs, though it is clear that offering accommodation within reasonable walking distance of his Synagogue is possibly taking those matters into account. 3 IPP JA: I agree with Basten JA. 4 BASTEN JA: The Appellant, Mr Azriel, was given leave on 22 May 2006 to appeal against the judgment of Kirby J in the Common Law Division, delivered on 29 August 2005. Leave was granted on the basis that there may have been a failure on the part of the primary judge to accord procedural fairness to Mr Azriel. For reasons which will appear, that challenge was not made out. However, the case also raises important issues concerning reliance on alleged discrimination as a basis for judicial review of an administrative decision. 5 The proceedings concern an application by Mr Azriel to transfer from his present accommodation, provided by the Department of Housing through the Respondent Corporation, to alternative premises. The application for transfer was originally made on 27 February 2002. Since that time, a number of offers of alternative accommodation have been made, but each has been rejected by Mr Azriel as unsuitable. 6 The reason Mr Azriel seeks alternative accommodation is that he has, since 2002, been separated from his wife, although he continues to share the public housing which has been made available to her. The reasonableness of a request for alternative accommodation is not disputed by the Respondent, nor does it dispute that Mr Azriel is otherwise eligible for public housing. 7 The issue which has been the subject of dispute concerns requirements identified by Mr Azriel to allow him to practise his religion as an orthodox Jew. He is a regular attender at the Synagogue at Flood Street, Bondi, at which he is a cantor. He requires to be within walking distance of the Synagogue, preferably within the Eruv area, within which he is allowed to carry certain items on the Sabbath. 8 Secondly, he requires an outdoor area within which to build a hut, within which to consume food during the Festival of the Tabernacles. 9 Before identifying the specific matters about which Mr Azriel complains, it is convenient to set out the orders sought in the summons filed by him in the Common Law Division on 1 June 2004. The claims were: (1) That the Plaintiff has been denied natural justice by the Defendant in determining its housing application.

(2) That the Defendant failed to follow procedural guidelines in determining the Plaintiff's housing application and therefore fell into error.

(3) The Defendant failed to properly assess the Plaintiff's application for housing and therefore breached the rules of procedural fairness.

(4) A Declaration that the Plaintiff is a joint tenant on the Defendant's Housing register, with his wife Heidi Azriel.

(5) A Declaration that the Defendant discriminated against the Plaintiff on the grounds of race, religion and health when assessing his application for housing. 10 Unfortunately, there were no points of claim which might have identified with greater precision the "housing application" referred to in the summons, nor did the affidavits filed in the Court below make clear the decision sought to be the subject of the orders or "claims" set out in the summons. Mr Azriel appeared for himself before the trial judge, as he did in this Court, and it is clear that the confusion was not fully resolved at the hearing. The trial judge identified one decision under challenge as the decision of the Department to take the plaintiff's name off a list of persons "who are eligible for public housing": Judgment, p 1. His Honour later identified the application which led to the challenged decision in the following terms (p.3): "On 27 February 2002 he lodged an application for a transfer and for his name to be placed on the eligibility list for public housing." 11 His Honour also identified a separate issue, namely a complaint that, although the application for public housing had originally been made by Mr Azriel in his name, the tenancy agreement with respect to his present accommodation, obtained in 1988, had been signed only by his wife, and not by him. 12 Much of the history of the matter appeared from material tendered during the course of the trial on 26 May 2005 and is summarised in the judgment below. The hearing was not completed on that day, but was adjourned until 29 August 2005, when his Honour gave judgment. On the latter day, it became apparent that further events had taken place which affected the potential utility of the relief sought. 13 Despite the basis on which leave was granted, Mr Azriel did not seek to include the transcript of the trial on 29 August 2005 in the papers before this Court, nor indeed did the Respondent. At the Court's request a copy was provided. Although counsel for the Respondent did not seek to defend the course taken by the trial judge, there is nothing in the transcript which demonstrates any absence of a reasonable opportunity for the Appellant to address and present his case. It is true that the trial judge discouraged Mr Azriel from taking particular courses, but the reasons were clearly articulated and sought to correct a number of misapprehensions expressed by Mr Azriel. No procedural unfairness is demonstrated. Nevertheless, relief was not granted, for reasons extraneous to the merits of Mr Azriel's complaints. 14 In the judgment at p 7 his Honour stated in reference to the first day of the hearing: "Before it was stood over, I urged Mr Jungwirth, counsel for the Housing Corporation, to give consideration to restoring Mr Azriel's name to the list of persons eligible and reinstating his application for a transfer to suitable premises. The Department did that. Mr Azriel's name has been restored to the housing register; that is, the register of persons eligible for public housing. The Department has reinstated his transfer application of the 27 February 2002; in other words, he remains on the list awaiting suitable accommodation." 15 His Honour then noted a discussion which had occurred on the second day of the hearing, concerning a house directly opposite that occupied by Mr Azriel and his wife in Maroubra. Mr Azriel said it was "Exactly what I need" (Tcpt 29 August 2005, p 26), although it was clearly not closer to the Synagogue. Whether Mr Azriel raised this issue because he sought to have that accommodation allocated to him, or because he sought to demonstrate that the Respondent did have access to accommodation of the kind he required, despite its failure to offer him such accommodation since February 2002, is not entirely clear. In any event the Corporation said that it had been offered to another person. His Honour considered whether or not there was a possibility of an "appeal" against the decision to allocate the house to the third party and said "One assumes that there is an avenue of appeal which Mr Azriel could, if he wishes, pursue": Judgment p 8. His Honour then immediately continued: "In the meantime, in respect of his present application, it is plain, for the reasons I have given, that there is no practical injustice in dismissing this application." 16 His Honour made orders accordingly, and the present appeal is against the decision to dismiss the summons. 17 In the course of the hearing of the appeal, Mr Azriel sought to rely upon two affidavits containing further evidence. In reply, the Respondent sought to rely upon an affidavit of Mr Michael Callen, senior solicitor in the Tenancies Division of the Department. Given that the Appellant was appearing in person, and had done so below, and that part of his appeal included an allegation of procedural unfairness in the Court below, it was thought convenient to admit the further evidence, pursuant to s 75A(7) of the Supreme Court Act 1970 (NSW), subject to a consideration as to its relevance to the issues before the Court. As will appear below, there is one aspect of the case run before the primary judge which was not adequately disposed of by the judgment. However, the proceedings being for judicial review of an administrative decision, it is necessary to consider whether, even if error were shown in the Court below, relief should now be refused on discretionary grounds. Parts of the material before the Court, which indicated steps taken by the Department since the earlier judgment, were relevant in that respect and will be referred to in due course. 18 It is convenient to deal with the arguments raised on the appeal by reference to the primary matters identified by Mr Azriel in his submissions.

Status as "tenant" 19 Although Mr Azriel argued his case in terms of 'reinstating' his status as a tenant, the underlying premise was not made good: he never had been party to a tenancy agreement with the Respondent. 20 On 5 August 2004 Mr Azriel swore an affidavit which was filed in the Court below. Annexures to that affidavit included an application to the Housing Commission of New South Wales, received on 5 August 1980, in the name of Mr Azriel. On 4 December 1980 he received a letter from the Secretary of the Housing Commission advising that his "application for accommodation" had been approved "with eligibility commencing from 5 August 1980". At some stage in 1983-84, there was a request, of which Mr Azriel had knowledge no later than 30 March 1984, to transfer the application to his wife's name. A letter to that effect was sent to Mrs Azriel on 16 May 1984. 21 A three bedroom house became available at 28 Astoria Circuit, Maroubra and a residential tenancy agreement was entered into with Mrs Azriel. The reason why the application was transferred to her name need not be pursued. The Respondent appears to have believed at some stage that she was a "deserted wife", or at least separated from her husband: see Affidavit of Michael Lindfield of 1 September 2004, par 8. According to Mr Lindfield, the residential tenancy agreement was entered into with Mrs Azriel on or about 8 January 1988. On 29 September 1989 Mrs Azriel made an application to have her husband's name included "in the tenancy file for the Housing Commission dwelling … as joint tenant". That application was made some 18 months after the tenancy agreement was signed, but Mr Azriel has provided no evidence of any further steps being taken in that regard until January 2002 when he said "my relationship with my wife broke down and I decided that I should live on my own": Affidavit, 5 August 2004, par 41. He continued: "I approached the Respondent to acquire separate housing. I was advised that as I was not the tenant I would have to fill in a fresh application for housing." 22 Mr Lindfield stated that on 27 February 2002, Mr Azriel applied for a transfer to other accommodation: Affidavit, par 17. That application was approved on 14 May 2002. 23 On 20 June 2002, Mr Azriel wrote to the allocation team in the Maroubra office of the Department, indicating the reasons for his preference for a house, not a flat, with an outdoor area in which he could build a hut for the eights days of the Festival of the Tabernacles. In relation to the tenancy agreement with respect to 28 Astoria Circuit, he noted: "The house was applied for by me, and offered to me, but recorded only in my wife's name due perhaps to clerical error. I wish to set the record straight that the lease on the house should have been in my name, in order to show that I am not a new applicant but an existing tenant." 24 At about the same time, the Department offered him a flat in Pagewood, which he rejected. A letter from the Department of 25 June 2002 noted that to reject a second offer without "a very good reason" would result in his name being taken off "the Housing Register". Apparently in response to a request at around the same date, on 27 June 2002 an officer of the Department wrote to Mr Azriel confirming that he was not a tenant of 28 Astoria Circuit. Correspondence in relation to that issue continued. 25 The legal relevance of this issue remains obscure. It is apparent that Kirby J was unable to identify any practical consequence. However, his Honour stated (Judgment, p 2): "One of the complaints made by Mr Azriel in the present application is that the Department wrongly removed his name as the tenant on their register. He has tendered various documents which support his assertion that at all times he remained with his wife and that the premises at Spring Street, Bondi Junction were used for other purposes. It seems to me probable that he is correct." 26 Whether Mr Azriel was a party to the residential tenancy agreement is a matter of fact. The Respondent says that he is not, but has apparently declined to produce the agreement, without the written consent of Mrs Azriel, because to do so would contravene the Privacy and Personal Information Protection Act 1998 (NSW). In any event, Mr Azriel accepts that he did not sign the agreement but now seeks an order of the Court requiring that he be permitted to do so. As counsel for the Respondent noted, there are two parties to the residential tenancy agreement, one of whom, Mrs Azriel, is not a party to these proceedings. He added that Mr Azriel was seeking an order in the nature of mandamus, against the Respondent, requiring it to enter into an agreement with Mr Azriel, or to treat him as a "tenant". 27 As counsel pointed out, the legal consequences of any such order were not explored, but the practical consequences appeared not to be significant. The Department had always treated Mr Azriel as an "additional occupant" of the premises and had calculated the amount of rent payable on account of his occupancy on the same basis as if he had been a party to the residential tenancy agreement. They had processed his transfer application on the same basis and, were he to accept an offer of alternative accommodation, he would become a tenant in relation to the new premises. If, at any time since May 2002, he has been, or hereafter, ceases to be, on the housing register, it will not be because he is not a "tenant" but because he has, in the view of the Respondent, unreasonably refused offers of accommodation: even in that event, his entitlement to remain in the present premises as an additional occupant is not in question. 28 Why the primary judge considered that his name had been "wrongly removed" from the housing register is not clear, nor is it clear when that occurred, or the basis on which it occurred. There is no decision identified which might have been set aside, nor, as already noted, has any legal obligation been identified which would justify an order that the Respondent take some step in exercise of its public duties. Quite apart from any question of the non-joinder of Mrs Azriel, relief in this regard, even if sought in clearly identifiable terms, should not have been granted. No error has been demonstrated on the part of the primary judge, in this respect, in dismissing the summons.

Transfer application 29 As noted above, the second aspect of the case below concerned the manner in which the Department officers, on behalf of the Respondent, dealt with his application for a transfer to alternative accommodation. Following his application in February 2002, approved in May 2002, Mr Azriel was offered five different apartments, all of which he rejected as unsuitable. 30 At all relevant times, the Department acted according to the policy that "existing tenants of the Department may apply for a transfer to another dwelling if their existing dwelling is no longer suitable for their needs". The policy, identified as "Department of Housing - Policy ALL0160A: Transfers (previously Rehousing)" provided that transfers would be allocated "on a priority basis" for specified reasons, including "family break-down". It was not disputed that Mr Azriel fell within the operation of this policy and, indeed, that he was treated as a "tenant" for this purpose. However, the policy also stated that a person who had been approved for a transfer "will be eligible to receive two offers of accommodation but that: "If the client rejects two reasonable offers … their name will be removed from the Rehousing Register." 31 On 4 March 2003 Mr Azriel was advised that his name had been removed from the housing register because he had refused two or more reasonable offers of housing. He appealed against that decision to the Housing Appeals Committee, which recommended that the decision be changed. At that stage, he had been made four offers of housing which he had rejected. The Committee concluded that the first three offers were not reasonable, as they were located further from the Synagogue than his current accommodation. The Committee said: "Given his age, heart condition, and longterm religious observance, the one and a half hour walk is the maximum that seems reasonable. However the Committee considers that the fourth offer, which was a one bedroom unit with a yard in Maroubra was a reasonable offer. Mr Azriel said that the unit was in poor condition but the Department's normal procedure is to carry out the required maintenance prior to the client moving in. The Committee concluded that it would recommend that Mr Azriel be made one further offer of accommodation which might have one or two bedrooms and might or might not have a yard but which is located no further from the Flood Street Synagogue than Mr Azriel's current accommodation." 32 Earlier in its reasons, the Committee had stated: "As regards the yard, Mr Azriel wants one so that he can build a hut in which must eat during a particular holy festival that lasts 8 days. However accommodation with a yard, which is therefore ground floor accommodation and in high demand, is generally retained for young families or persons who have medical conditions that cause them to need accommodation with no steps. Mr Azriel might have to consider making other arrangements during this festival, for example eating at the hut of someone else or negotiating with his estranged wife about whether he can continue to build the hut in her yard. Presumably not all people who observe this festival have a yard and some would have to make alternative provisions. The reality is that public housing is an increasingly scarce resource and clients often have to make compromises." 33 Following this decision, Mr Azriel was offered one further apartment, being a two bedroom apartment at 53/20 Elphinstone Road, South Coogee. The apartment was refused on 29 August 2003. 34 In his affidavit of 5 August 2004, Mr Azriel referred to the two bedroom apartment in South Coogee as having been offered on 10 October 2003 and having been rejected, following which his name was removed from the housing register: Affidavit, 5 August 2004, par 70. This appears to be the refusal referred to by Mr Lindfield in his affidavit of 1 September 2004 as having occurred on 29 August 2003. It may be that the offer was made on the earlier date and refused on 10 October, but nothing turns on this. In any event, it appears to be this last refusal which was the subject of the challenge in the Court below, because, in the following paragraph of the affidavit, Mr Azriel stated: "Throughout their dealings with me the Respondent has not given any consideration to my religious convictions and my need to carry out certain religious observances for religious festivals at various times during the year. On occasions I walk twice to the Synagogue one day. This is a distance of approximately 40 kilometres. These long walks are having a deleterious effect on my health. In this regard I consider that the Respondent has discriminated against me."

(It may be noted that there was no reliable evidence establishing the actual distance to the Synagogue.) 35 These contentions were not identified in terms which would demonstrate grounds for setting aside a specific administrative decision. However, the primary judge, for reasons noted above, dismissed the summons on the basis that a further alternative had arisen in relation to which Mr Azriel could make an application by way of appeal against an allocation which had already taken place. The materials before this Court, which are more extensive than those before his Honour, do not demonstrate any basis upon which such an appeal could be brought. Counsel stated that, although the premises were vacant as at the second day of the hearing before the primary judge, an allocation had been made to a person who was deemed to be "at risk". He conceded that there was no realistic opportunity for Mr Azriel to "appeal" against that allocation. To that extent, his Honour took into account an irrelevant consideration in failing to address the matters raised by Mr Azriel pursuant to his summons. 36 A second, and possibly an alternative basis, upon which his Honour declined to grant relief was that, Mr Azriel having been reinstated to the waiting list, might be offered further accommodation. According to Mr Azriel, a further offer was made, a day or two after the judgment of the primary judge. The offer related to premises at 26/990 Anzac Parade, Maroubra. According to a letter dated 11 November 2005, from a departmental officer to Mr Azriel, an offer was made in relation to those premises and rejected on 5 September 2005. It was common ground that the alternative premises were not at ground level (and therefore had no yard), and were not significantly closer to the Synagogue than the premises in which Mr Azriel currently resides. Nevertheless, the letter of 11 November 2005 stated that the Department considered it had made a "reasonable" offer, which had been rejected on the basis of "personal preferences". The letter stated: "As you have been previously informed, you have not demonstrated that you require accommodation with a yard. Dwellings with this feature are in very high demand in the eastern suburbs. Therefore, the Department allocates properties with a yard to clients who have a specific, demonstrated need for such accommodation." 37 In terms, this letter followed the Housing Appeals Committee reasons communicated on 7 August 2003, which included the view that accommodation with a yard could not be demonstrated as a requirement. It is true that the Committee did not specifically state that reasonable accommodation would be closer to the Synagogue than the accommodation presently occupied by Mr Azriel. However, it accepted that his present distance was "the maximum that seems reasonable". It is at least implicit in the letter of 11 November 2005 that the relevant departmental officer thought it appropriate to comply with the letter of the recommendation, without close regard to its spirit. Furthermore, the reference to "personal preferences", if referable to the religious requirements of Mr Azriel, demonstrated a disregard of the statements of the primary judge in his reasons for judgment of 29 August 2005. He had stated (at p 5): "However, it seems to me, because of Mr Azriel's particular religious needs, that walking to synagogue and having accommodation, which is reasonably close to synagogue, having regard to his age and health, could not be characterised as 'a personal preference'." 38 If that view had been seen to provide a basis for setting aside a decision of the Respondent, the failure to grant relief to Mr Azriel on that basis may well be said to have led to a further decision being made for the same illegitimate reason. This conclusion gives rise to two further questions, namely:

(1) whether error has in fact been demonstrated in relation to the decision under review before the primary judge, and

(2) if so, whether this Court should intervene to grant relief. 39 A negative answer to the second question may be fatal to Mr Azriel's case on appeal, but the operation of the relevant discretionary considerations cannot properly be addressed unless the existence and nature of any error on the part of the primary judge have first been identified.

Error of law 40 There are two bases upon which the judgment below is sought to be challenged. One is that there was a failure to accord procedural fairness, because, on 29 August 2005, the primary judge failed to allow Mr Azriel an opportunity to make submissions in support of his case. The second complaint is that his Honour failed to consider the substance of Mr Azriel's claim for relief. It is sufficient to deal with the second matter because, as noted above, Mr Azriel did not seek to demonstrate procedural unfairness at the trial, and a reading of the transcript fails to provide support for that challenge. 41 For reasons already noted, his Honour dismissed the summons on the basis that to do so would cause no "practical injustice". The reference to practical injustice, as a basis for dismissing an application for judicial review, was not explained. However, in modern legal terminology, it is often adopted by reference to the judgment of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] where, in relation to the concept of procedural fairness, his Honour stated: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 42 In the present case, the primary judge appears to have used the term to apply to circumstances where the administrative decision under review has been superseded by a later decision. However, care must be taken in declining relief on that basis, where a later decision has not actually been arrived at, if the later decision is likely to be infected by the same error as that under review. On one view, that is what happened in the present case. Thus, although the Respondent was prepared, after comments by his Honour at the first day of the hearing, to provide a further offer of accommodation to the complainant, absent an undertaking or some assurance that the offer would take into account Mr Azriel's religious needs, the mere willingness to make a further offer would not have rendered the relief futile. The terms of the letter of 11 November 2005 suggest that his Honour's faith in the willingness of the Respondent to make a further offer, thus obviating the need for judicial determination of the complaint before him, was premature: see [36] above. 43 Accordingly, it is necessary to consider whether there was substance to the complaint raised by Mr Azriel. For the reason identified by the primary judge, in my view there was substance to that complaint. The starting point for the analysis must be the statutory framework within which rental accommodation was provided by the Respondent. First, pursuant to the Housing Act 2001 (NSW), the Respondent is established as a statutory corporation to be managed by the Director-General of the Department of Housing and is a body which may exercise the functions of the Department and otherwise act in the name of the Department: see s 6. Although passing reference was made to the objects of the Housing Act (s 5) and to the Commonwealth-State Housing Agreement 2003, there is no statutory scheme for the provision of public housing in the State. In effect, the Respondent accepted that it was legally responsible for providing public housing to persons in need of such assistance in New South Wales and that, in so doing, it was subject to the general laws governing the provision of accommodation. 44 It further agreed that the relevant legal constraints included the requirements established by the Anti-Discrimination Act 1977 (NSW) ("the ADA"). It is not, therefore, necessary to consider the possible operation of the Racial Discrimination Act 1975 (Cth). 45 The ADA prohibits discrimination on identified grounds, in particular areas of conduct. Thus, there are prohibitions with respect to discrimination on the ground of race in the provision of goods and services (s 19) and in relation to accommodation (s 20). It is sufficient to consider the operation of the latter provision, which reads: 20 Accommodation (1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race - (a) by refusing the person's application for accommodation; (b) in the terms on which the person offers the person accommodation; or (c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation. (2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race: (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person; or (b) by evicting the person or subjecting the person to any other detriment. 46 It is, of course, not necessary for the person to demonstrate disparate treatment on the ground of his race; it is sufficient if the conduct in question involves the imposition of a racially neutral condition or requirement, which has disparate impact on people of a particular race: see, generally in relation to an earlier form of the ADA, Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 and, discussing s 9 of the Racial Discrimination Act, Allsop J (Spender and Edmonds JJ agreeing) in Baird v State of Queensland [2006] FCAFC 162 at [54] and [60]-[63]. In addition, such discrimination extends to a person on the basis of a characteristic that appertains generally to persons of that race or is generally imputed to such persons: see ADA, s 7(1) and (2). The term "race" is defined to include "colour, nationality, descent and ethnic, ethno-religious or national origin": ADA, s 4(1). 47 It has long been accepted that Jews constitute a "race" for the purposes of this definition: see King-Ansell v Police [1979] 2 NZLR 531, based upon the phrase "ethnic origins". Any possible doubt on this score was removed by the inclusion in 1994 in the ADA of the term "ethno-religious": Parliamentary Debates (NSW), Legislative Council, 4 May 1994, p 1827. 48 Counsel for the Respondent also accepted that because the Act expressly applies "in addition to, and not in derogation of" any other law in force in New South Wales that provides for the protection of a person from conduct that is or would be unlawful under the ADA (see s 123), the prohibition on racial discrimination in the area of accommodation, imposes a relevant legal constraint on the conduct of the Respondent, contravention of which can be addressed as a ground of judicial review. There remains an issue as to how that constraint is to be applied in proceedings for judicial review. 49 Judicial review is concerned only with the legality of an administrative decision, in the sense of whether or not the decision-maker has exceeded the legal boundaries of his or her powers. Those boundaries are defined, in part, by reference to the consideration of matters which are legally impermissible and the failure to consider matters to which the law requires that consideration be given. The requirement of consideration is not satisfied by formalistic reference. In Weal v Bathurst City Council (2000) 111 LGERA 181 Giles JA, with whom Priestley JA agreed, stated at [80]: "Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration … ."

Mason P commented at [9]: "There is little point in searching for a definitive statement of what is involved in taking something into consideration. I am however, attracted to Gummow J's formulation of 'proper, genuine and realistic consideration upon the merits'. This was in the context of s 5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292). The formulation has been carried across to the proper consideration ground of review and now appears to have a general acceptance in the Federal Court of Australia (see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64 where the authorities are collected by Merkel J)." 50 Just as a statutory mandate must be construed and applied, bearing in mind its purpose - Interpretation Act 1987 (NSW), s 33 - so the decision-maker must address a legally mandatory consideration, bearing in mind the purpose of the requirement. 51 At least in relation to findings of primary fact, the weight to be given to any particular matter is for the decision-maker and is not reviewable by the Court. As Spigelman CJ noted in Bruce v Cole (1998) 45 NSWLR 163 at 186D-E, the scope for assessing whether the decision-maker has given proper, genuine and realistic consideration to a mandatory matter must be approached with caution, so as to avoid the Court impermissibly reconsidering the merits of the decision. Indeed, the language adopted by Gummow J in Khan was not expressly directed to mandatory considerations, but to the merits of a case, and would extend to all material matters raised by an applicant, failure to consider which in the manner described is now treated as a question of procedural unfairness: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ) and [87] and [88] (Kirby J). 52 In the proceedings brought by Mr Azriel below, the Court was not required or permitted to review the merits of the decision made. Had it been asserted that the decision was infected by unlawful discrimination, there may have been procedures available under the ADA for review of the decision on the merits by the Administrative Decisions Tribunal. The scope for intervention by the Court is more limited. Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, in which the High Court upheld a decision refusing irrigation licenses to persons of Italian origin, might now be differently decided. But that is because there is now a legal constraint on such decision-making. The case remains authority for the proposition that intervention is only available to ensure that the decision-maker has acted within power. 53 In dealing with Mr Azriel's application, the Respondent applied a test which required it to determine whether a particular offer of accommodation was "reasonable" in relation to a particular applicant, or, from a different perspective, whether the applicant was acting reasonably in refusing a specific offer. (As will be seen below, the two questions may not lead to a common answer.) In applying that test, it treated what it described as "personal preferences" as being outside the bounds of reasonableness. There is no complaint about the lawfulness of those tests. Rather, the complaint is directed to the treatment of requirements, accepted by Mr Azriel as part of his religious beliefs the genuineness of which is not in question, as mere "personal preferences". 54 Guidance in applying this test may be found in the reasoning of the House of Lords in Mandla v Dowell Lee [1983] 2 AC 458. That case accepted that Sikhs were a group defined by reference to their ethnic origins and accordingly fell within the protection of the Race Relations Act 1976 (UK). The question was whether a private school requirement that a boy who was an orthodox Sikh remove his turban and cut his hair constituted indirect discrimination, namely the imposition of a requirement or condition, which, although applied equally to all students, was such that a smaller number of Sikhs "can comply with it". Of that, Lord Fraser of Tullybelton stated (at p 565): "It is obvious that Sikhs, like anyone else, 'can' refrain from wearing a turban, if 'can' is construed literally. But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in 1976 Act, then a literal reading of the word 'can' would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the Act to afford to them. They 'can' comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules. … The word 'can' is used with many shades of meaning. In the context of [the statutory provision] it must, in my opinion, have been intended by Parliament to be read not as meaning 'can physically', so as to indicate a theoretical possibility, but as meaning 'can in practice' or 'can consistently with the customs and cultural conditions of the racial group'." 55 A similar approach should be adopted in the present case. Accordingly, the refusal of accommodation should not be treated as unreasonable if it would render compliance with religious beliefs impracticable or would subject their observance to unreasonable conditions. On the other hand, where questions of indirect, or disparate impact, discrimination arise by, the imposition of facially neutral requirements, it is also necessary that these requirements be "not reasonable having regard to the circumstances of the case": ADA, s 7(1)(c). In other words, the ADA does not impose on the Respondent an obligation to provide public rental housing within an area and of a kind which would satisfy an applicant's ethno-religious requirements. Rather, the Respondent must take such steps as it reasonably can to provide such accommodation and, in determining whether an offer (or its rejection) is reasonable, must give genuine and proper consideration to an applicant's religious requirements. So long as it did so fairly, and did not reach a manifestly unreasonable decision, there would be no scope for judicial review.

Application of principles 56 My tentative view is that the offers made by the Respondent were reasonable, in the sense that it was appropriate for the offers to be made in a timely fashion, so that Mr Azriel could consider them, but that in deeming his refusals unreasonable, or based merely on "personal preferences", the Respondent breached the principles set out above. The evidence in relation to the last decision prior to the commencement of the proceedings, supports a view that the Respondent continued to treat Mr Azriel's religious requirements as matters which could simply be put to one side. For example, the letter of 11 November 2005, relevantly set out at [36] above, clearly did not treat Mr Azriel's religious requirements as "a specific, demonstrated need" for accommodation having a yard. An inference may be drawn from that material that a religious requirement was simply disregarded. Nor was there an assessment as to whether, given the available resources, it was not reasonably practicable to expect suitable premises to become available and to be offered to Mr Azriel (taking account of other demands for such premises). In other words, the Respondent would have demonstrated that it was taking account of Mr Azriel's religious requirements by giving proper and genuine consideration to his eligibility for such housing, when it became available, and balancing his needs against those of applicants with other forms of "special needs" which the Department officers recognised. The conduct of the Respondent following the hearing in the Court below, in which no orders were made, confirms my tentative view that the legally correct approach was not being followed. 57 Nevertheless, all the primary judge could have done, and all this Court could do, would be to set aside a legally invalid decision and refer the matter back to the decision-maker to be reconsidered according to law. If reconsideration according to law had already happened, a grant of relief at this stage would serve no purpose, even if error were identified in the failure of the primary judge to grant such relief. Indeed, his Honour applied a similar approach, though for reasons noted, it appears to have resulted from a misapprehension as to the circumstances at that time. Circumstances have now changed and two factors make it unnecessary and, in my view, inappropriate to grant relief. 58 The first matter is the decision of the Housing Appeals Committee, which was notified to Mr Azriel by letter dated 10 March 2006. The Committee conducted a hearing on 23 February 2006 at which both Mr Azriel and Rabbi Dadon from the Flood Street Synagogue attended and provided information. The conclusion reached by the Committee was as follows: "The Committee recognised that this was a particularly difficult case for the Department to deal with, given the acute shortage of accommodation in the Bondi area, and the considerable level of demand from people wishing to be within walking distance of the Synagogue. While there are several Synagogues in the Eastern Suburbs area, it is clear that as a particularly orthodox Jewish man Mr Azriel is most comfortable dealing with the Flood Street Synagogue, and does not consider attendance at an alternative Synagogue an option for him. The Committee looked only at the issue of whether the last offer of housing to Mr Azriel was a reasonable offer, taking account of his current circumstances and medical conditions. The Committee considered what style of housing would be a reasonable offer for Mr Azriel and had to recognise the constraints on finding a solution for the period of the observance of the Tabernacle. The Committee considered that it was not reasonable for Mr Azriel to be allocated a properly with a yard simply on the basis that he needed to conduct a particular religious observance for eight days per year. The Committee considered that there were other alternatives for his ability to deal with this period of time, including negotiating for use of his former wife's or one of his children's properties during that time, and possibly staying with a friend or relative during that period. The Committee therefore considered that the Department's decision to allocate a two bedroom unit to Mr Azriel was a reasonable decision under the circumstances. The Committee then considered whether the location of the offer made to Mr Azriel was reasonable. The Committee recognised that there was some contradictory information in relation to this offer given that Mr Azriel had said he was willing to take a house in the same street as his current property. The Committee did however recognised that since 2003 when Mr Azriel had his last appeal, and the Committee determined that he should be housed closer than his current housing to the Synagogue, his health had deteriorated. This has been due to his increasing age and to a car accident in which he was involved two years ago. Mr Azriel in being offered the property in Anzac Parade Maroubra would have had housing that was slightly further than his current home from the Synagogue. The Committee therefore accepts that Mr Azriel still required transfer and recommends that he be made one further offer of accommodation that is preferably closer to the Synagogue and in an area that avoids some of the steepest hills. The Committee also emphasises, however, that unit style accommodation would be suitable and that the Department cannot be expected to provide a yard or a garage. " 59 A fair reading of this conclusion and recommendation indicates that the Committee gave genuine and appropriate consideration to the matters discussed above, including other demands on appropriate accommodation and the resources reasonably available to the Respondent. That consideration satisfies the legal requirements in issue in the present case. The only concern, which was expressed by the Court during the course of argument, was that the evidence did not disclose the relationship between the Committee and the Respondent, but merely indicated that the Committee was empowered to make a 'recommendation'. There was no evidence that the Respondent had adopted the recommendation set out above, or that it intended to apply the reasoning adopted by the Committee, in making a further offer of accommodation and considering Mr Azriel's response. The Court suggested to counsel for the Respondent that if it wished to rely upon this material, it would need to take the further step of providing an undertaking to the Court (and not merely to Mr Azriel) that it would comply with the recommendation. Mr Jungwirth readily accepted the point raised and, after a short adjournment, obtained instructions to give an undertaking in a form which was subsequently reduced to writing and reads as follows: "The Respondent hereby undertakes to the Court that it will make one, further offer of housing to the Appellant. The property the subject of the offer will consist of a two bedroom apartment-style accommodation, located within the Greater Bondi area, an area defined as containing the whole or part of the following suburban regions: 1. North Bondi 2. South Bondi 3. Waverley 4. Paddington 5. Woollahra." 60 It should be emphasised that the content of the undertaking is relevant for a limited purpose only: it provides comfort to the Court that a fresh decision has been made which appears to take into account the principles set out above. Whether or not an actual offer is of premises with a yard is a matter for the Respondent. To impose a requirement or condition that Mr Azriel accept premises without a yard (if that happens) may not be done on the basis that such a condition reflects a matter of 'personal preference'. Like proximity to the Synagogue, to ignore the fact that such a condition could be one with which a lower proportion of people within Mr Azriel's ethno-religious group "are able to comply", and could be one which is not reasonable having regard to the circumstances of the case, could be to ignore a mandatory consideration. In that event, such conduct will contravene a legal constraint on the discretionary powers of the Respondent, as set out in ss 7(1)(c) and 20 of the ADA. 61 The conclusion reached by Santow JA at [2] expresses a view as to the outcome of a lawful consideration by the Respondent, which involves a decision on the merits, without knowing the circumstances of the particular decision. I respectfully do not join in his Honour's view. 62 This undertaking accords with the principles referred to above and constitutes a reconsideration of the decision under review, of a kind which would have been ordered by the Court, had the decision been set aside. Accordingly, it renders unnecessary the grant of relief by this Court. It is therefore neither necessary nor appropriate to set aside the order made by the primary judge dismissing Mr Azriel's summons. 63 There remains the question of the costs of the appeal, no order having been made in relation to the costs below. Although the appeal should be dismissed, and costs would normally follow the event, Mr Azriel has in substance obtained the only result which would have been available to him had he been successful in obtaining orders from the Court. Furthermore, absent the subsequent conduct of the Respondent, orders would, in all probability, have been made, in accordance with the tentative views set out above. Accordingly Mr Azriel should not be ordered to pay the costs of the appeal. There should be no order for costs. 64 In these circumstances, it is sufficient to order that the appeal be dismissed. **********

15/12/2006 - At request of Respondent - Paragraph(s) Coversheet decision

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(2000) 111 LGERA 181

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