Victorian Civil and Administrative Tribunal|2003-12-23

Falun Dafa Association of Victoria Inc.v Melbourne CC [2003] VCAT 1955 (23 December 2003)

Equal Opportunity Act 1995 - exclusion from Moomba Parade on basis of attribute - whether service provided - whether injunction should be granted

1. Application for permanent injunction dismissed.

2. Finding that Respondent breached provisions of the Equal Opportunity Act 1995 in respect of 2003 Moomba Parade. Question of order to be made reserved.

Mr. H. Borenstein S.C. and Mr. Dowling instructed by Holding Redlich

Ms. F. O'Brien S.C. and Ms. Thomas instructed by Freehills

Falun Dafa Association of Victoria Inc - v - Melbourne City Council

1. This application is brought pursuant to the provisions of the Equal Opportunity Act 1995 ("the Act"). Basically the applicant (hereinafter referred to as "Falun Dafa") is seeking two orders against the respondent (hereinafter referred to as the "MCC") in relation to the Melbourne Moomba Waterfest Parade (hereinafter referred to as "the Parade"). In referring to Falun Dafa, I am drawing no distinction between the corporate entity and its individual members.

2. I am familiar with Falun Dafa, its objectives, its methods of operation, and the manner in which it brings its message and goals to the public. I am so familiar because I have dealt with two previous applications by it. Indeed, I heard its application in relation to a mandatory injunction sought by it against the MCC and relating to its participation in the 2003 Parade. As I understand it, my familiarity with the matter was welcomed by the parties on this occasion, and removed the necessity for detailed evidence concerning Falun Dafa and concerning the organisation and operation of the Parade.

3. The factual background of this matter is as follows. Much of it is common, and very little of it was the subject of dispute. Indeed, the three witnesses called on behalf of Falun Dafa simply adopted their statements and were not subject to cross-examination. The balance of the evidence was adduced by way of tendered documents. Despite the somewhat complicated history of the matter, this application "boiled down " into legal submissions relating to a discreet issue.

4. However, to assist in the comprehension of the legal argument, the following factual background is set out.

5. Falun Dafa is an organisation which promotes such things as meditation and exercise. It is basically pacifist, and promotes concepts like truthfulness, compassion and forbearance. However, at least some of its senior members are firmly of the belief that members of the related organisation in China are harassed, persecuted, tormented, and executed. Accordingly, members of the local organisation have staged vigils outside the Chinese consulate and have caused distressing photographs of injured or deceased Chinese members to be placed in public places. I accept that this activity has caused distress to some people, and also has the potential to cause embarrassment in the context of Australian/Chinese relations. There was no argument but that one of the objectives of Falun Dafa is to place pressure on both the Australian Government and the Chinese Government.

6. Over the years since 1999, Falun Dafa has participated in various events, festivals and the like. I accept that it has received various certificates and letters of appreciation in relation to such participation, and that such participation does not always involve the display of gruesome photographs and the like.

7. In late 2002, Ms Phillipa Rayment, a practitioner of Falun Dafa, commenced negotiations with the MCC and with a body to which the MCC contracted various arrangements for the Parade, PAN Event Entertainment (hereinafter referred to as "PAN") concerning participation by Falun Dafa in the 2003 Parade. As I understand it, PAN was effectively organising the Parade for the MCC, but the MCC was the ultimate decision maker in relation to which persons or groups should or should not participate in the Parade and indeed controlled overall decision-making. Following hand written submissions by Ms Rayment, PAN forwarded to her an entry form in relation to that Parade. This was completed and returned. By an e-mail dated 8 January 2003, PAN confirmed Falun Dafa's involvement in the Parade.

8. By a letter dated 23 January 2003 from PAN to Ms Rayment, PAN, on behalf of the MCC, again confirmed Falun Dafa's entry in the Parade. I gather that, from year to year, the Parade has various themes or chapters. These appear also to be described as icons. For the year 2003, these included such things as the indigenous, sport, food and cultural diversity. The letter of 23 January 2003 confirms Falun Dafa's entry in the cultural diversity chapter of the Parade. The letter even goes on to say:-

"We are really excited about your entry and look forward to seeing it paraded down the heart of Melbourne to the myriad of enthusiastic onlookers".

Further paragraphs in the letter point out that all entries will be inspected, risks assessed, and the like.

9. On 12 February 2003, Ms Rayment received a telephone call from an officer of PAN advising that the MCC had notified him that Falun Dafa was to be excluded. I accept that, on that same day, Ms Rayment, on behalf of Falun Dafa, attended a meeting with PAN, and particularly with the officer who had advised her that Falun Dafa was to be excluded from the Parade. I accept, and indeed it was not challenged, that the PAN officer expressed the view that Falun Dafa had been treated unfairly. It is to be remembered that PAN in essence acted as the organising agent for the MCC.

10. I accept that, at about this time, Ms Rayment received a letter addressed to her care of the Falun Dafa from Mr Scott Chapman, Director Marketing and Corporate Affairs of the MCC, such letter being on MCC letterhead. After thanking Ms Rayment for her interest on behalf of Falun Dafa, it reads:-

"The Moomba Parade has a strong tradition as a community parade which seeks to provide non-political entertainment for the people of Melbourne.

As Falun Dafa has strong political associations, the City of Melbourne does not consider the Moomba Parade to be an appropriate event for your organisation to be involved".

Ms Rayment immediately responded in writing to the letter of Mr Chapman by pointing out what she believed to be the true principles of Falun Dafa, including references to a "peaceful mind and kind heart, and a guiding ideology is Truth, Compassion and Forbearance in all spheres of each person's own life". She also extended to Mr Chapman and to all councillors of the MCC an invitation to attend the inspection of the rehearsal of the Falun Dafa entry on 16 February 2003.

11. On 16 February 2003, such rehearsal went ahead. Officers of PAN attended. No councillor of the MCC attended. I accept, and it was not challenged, that the PAN officers expressed enthusiasm for the entry.

12. I accept that the proposed presentation was apolitical in nature, and that undertakings were given that there would be no engagement in political activity. I also accept that the presentation was compatible with the stated objects of the Parade, and in particular, fitted within the chapter or icon of cultural diversity. I have previously expressed these views in my order of 7 March 2003, and there has been no evidence adduced since which would cause me to alter that view. I accept that the proposed presentation was colourful, attractive and inoffensive and was seen by Falun Dafa as a means of promoting and spreading its beliefs in concepts such as compassion. It had participated in a number of other unrelated parades and festivals.

13. In relation to the Parade itself, the factual background is also relatively clear and unchallenged. For many years, in varying formats, it has been conducted through the streets of Melbourne on that Monday in March which coincides with the Labour Day holiday. Its format has altered. It has been revised and revamped. Its themes for the 2003 Parade have been set out above.

14. Against the above factual background, the litigation history of this matter is as follows:

By letter dated 27 February 2003, the solicitors for Falun Dafa wrote to the MCC alleging breach of the Act, seeking inclusion in the parade of 2003, and foreshadowing a complaint to the Equal Opportunity Commission Victoria should that not occur. Such a complaint was in fact forwarded by a letter dated 28 February 2003. An unsuccessful conciliation was attempted. By letter dated 6 March 2003, Equal Opportunity Commission Victoria referred the complaint to this Tribunal. By an application out of this Tribunal and dated 6 March 2003, Falun Dafa sought interim relief in that it sought permission to enter a float in, and participate in, the Parade on 10 March 2003.

15. That application for interim relief came on before me on 7 March 2003. Whilst I expressed some sympathy for the position of Falun Dafa on the basis of the material before me, and because of the encouragement which they had been given to participate only then to be refused, I was not prepared to grant such an injunction. Whilst appreciating that the matter had not been argued fully before me, I had some misgivings as to whether Falun Dafa would actually succeed in relation to the legal argument involved, but I was also mindful of the balance of convenience, and in particular, of the timing of events. To have granted the injunction would in essence have been granting the ultimate relief sought. Accordingly, the application for an interim injunction was dismissed.

16. Of course, that application and decision related solely to interim relief. Whilst some of the material relied upon is common to this principal application, the application contained in File No. A49/2003 is effectively at an end.

17. The principal application has since moved on. Indeed, the sheer volume of material and the nature of what can only be described as pleadings are such that the matter resembles more closely Supreme Court proceedings than the type of application frequently encountered in this jurisdiction.

18. Mr. Borenstein S.C. advanced arguments on behalf of Falun Dafa. These could be summarised as follows, and I might say that this summary essentially concentrates on what became the central issues as opposed to the broader questions referred to in Mr. Borenstein's written submissions.

19. Falun Dafa possesses the attribute of political belief or activity referred to in s.6 of the Act. It possesses that attribute either directly or because of association with its members. It was excluded from the Parade because of the possession of such attribute. There was direct discrimination against it within the meaning of s.8 of the Act. S.42 prohibits a person from discriminating against another person by refusing to provide services or by subjecting the other person to a detriment in connection with the provision of services, whether or not these be voluntary or for payment of money.

20. The MCC is a provider of services within the meaning of s.42. Both general principles in relation to the meaning of services, along with particular rulings and useful comments, are to be found in the leading case of IW v. The City of Perth [1998] HCA 30; (1997) 195 CLR 1. That decision makes it clear that the definition of "services" as contained in s.42 and defined in s.4 of the Act, has a wide meaning. It is to be given a liberal interpretation. The definition contained in s.4 is inclusive and not exhaustive.

21. There are two aspects of the organising and conducting of the Parade by the MCC which represent the provision of a service. The first is the service of determining which of the aspiring participants will be permitted to participate. That the exercising of this decision-making power is a service and should not be exercised in a discriminatory fashion can be distilled from the judgements of five of the seven judges involved in IW v. The City of Perth. Those judges are Justices Dawson, Goudron, Toohey, Gummow and Kirby.

22. Secondly, whilst the MCC may be staging the Parade to entertain the public and thereby providing to them a service, the conduct of the Parade is also a service to individuals, such as participants. Had Falun Dafa been permitted to participate, it would have received the benefit of being able to promote itself and its ideas. In this way, the MCC would have been providing it with a service, namely the facility or opportunity to engage in such promotion. It is an opportunity to reach a very wide audience, attract new members and the like. To deprive it of that opportunity is to deprive it of a service, and to subject it to a detriment, all of which falls within the meaning of s.42.

23. Further, the provision of services can be reciprocal or exchanged so that, even if Falun Dafa is providing a service to the MCC if it participates in the Parade, this does not mean that the MCC cannot, at the same time, be providing a service to Falun Dafa. Services can be provided, for example, to a group and to an individual and the character of the service may then vary, as discussed by Gummow J. in IW v. The City of Perth. Different facets of the service may be categorised in different ways.

24. Ms. O'Brien S.C. advanced arguments on behalf of the MCC. Helpfully, at an early stage in the hearing and again at the outset of her submissions, Ms. O'Brien emphasised that the fundamental question to be determined is "What was the service allegedly being provided by the MCC to Falun Dafa?" She pointed to the remarks of Brennan C.J. and McHugh J. in IW. v. The City of Perth at page 16, to the effect that, in determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service the alleged discriminator provides.

25. The difficulty, if not impossibility, facing Falun Dafa in establishing or identifying a service in the present case is highlighted by the fact that those representing Falun Dafa keep changing the description of the service. It has been described as a service in conducting the Parade; a decision-making service; and, effectively, an advertising service.

26. In fact, the service which it is providing is that of entertaining the public and the MCC is not providing a service to participants, or prospective participants, in the Parade. The point can be illustrated by reference to various examples, such as barristers and paid entertainers. It is stretching the meaning of the language beyond all credible belief to describe such persons as being provided with a service when they are in fact providing a service. It is similar in the present situation.

27. Furthermore, if the arguments advanced on behalf of Falun Dafa are correct, basically every relationship could be converted into one which falls within s.42, and this would render obsolete large sections of the Act. In particular, it would render obsolete those parts of the Act dealing with discrimination in employment.

28. Further, the true nature of the relationship cannot be artificially altered so as to squeeze it into some other category. Reliance is based upon the decision of the Federal Court of Australia in Ferneley v. Boxing Authority of New South Wales and Another[2001] FCA 1740; 191 ALR 739. Bearing in mind the definition of "employment" found in s.4 of the Act, and the provisions of s.14, the present case is really one involving a contract for services, but, as it is work done on a voluntary or unpaid basis within the meaning of the definition, it is not a relationship covered by the operation of the Act.

29. I interpolate at this stage that, in the context of the present case, I have some difficulties in coming to grips with this last-mentioned argument. I say now that I prefer the argument advanced in rebuttal by Mr. Borenstein in relation to it. The arrangement or relationship between the parties does not seem to me to be one which falls within the operation of s.14 which would then attract an investigation of the meaning of "employment".

30. Returning to Ms. O'Brien's arguments, in summary, there has been no identification of a service allegedly provided by the MCC to Falun Dafa or of what has allegedly been refused. If that is so, the application must fail.

31. Whilst in paragraph 13 of the Amended Particulars of Complaint, Falun Dafa seeks various forms of relief, Mr Borenstein confined the relief actually sought to two heads (leaving to one side the question of costs). The orders that are now sought are as follows:-

(a) a pe_rmanent injunction prohibiting the Respondent from excluding the Complainant from future Moomba Parades on the ground of the Complainant's lawful political beliefs or activities;_

(b) an apology to the Complainant for breaching the Equal Opportunity Act 1995 and for excluding the Complainant from the 2003 Moomba Parade".

32. As can be seen, the first head of relief refers to the future, the second to the past. The material before me relates overwhelmingly to the activities of Falun Dafa in general, and to events surrounding the 2003 Parade. Further, the Amended Particulars of Complaint relate to the 2003 Parade and the exclusion of Falun Dafa therefrom and make no reference to any fact or activity occurring after February, 2003. Therefore, I shall deal with the above heads of relief in the reverse order and firstly consider whether the exclusion of Falun Dafa from the 2003 Parade represents a breach of the provisions of the Act.

Was the exclusion of Falun Dafa from the 2003 Parade in breach of the provisions of the Act?

1. Is there a service provided within the meaning of s.42?

33. I agree that the fundamental issues to be determined in relation to this question are those identified by Counsel as relating to the operation of S.42 of the Act. Has the MCC discriminated against Falun Dafa by refusing to provide services or by subjecting Falun Dafa to a detriment in connection with the provision of services? As put by Ms O'Brien, what is the service, if any, allegedly being provided by the MCC to Falun Dafa?

34. Ms O'Brien pointed to the differing alleged services identified from time to time on behalf of Falun Dafa as a barometer of the difficulties in establishing that the MCC provided any service. Whilst this may be at least in part true, before a Tribunal such as this, one should not get too bogged down in what can be described as the pleadings. Whether or not those representing Falun Dafa have changed or expanded upon the nature of the alleged service provided in the course of developing their case, the question remains the same. Can the Tribunal be satisfied that the MCC was the provider to Falun Dafa a service, and, if so, what is that service?

35. I agree with various propositions put to me by Mr Borenstein. I agree, for example, that the provision of services can be reciprocal. A may be providing a service to B. At the same time and whilst performing the same activity, B may be providing a service to A.

36. I also agree that the performance of an activity can represent the provision of services to more than one person or group of persons, and that the nature or character of the service so provided can differ from recipient to recipient. Assume that the MCC decided to stage a general exhibition of works of art, which were for sale, in the Melbourne Town Hall. Would this not be providing a service to the individual artists who wish to sell their works? And, if it was announced that, say, Aboriginal artists were specifically excluded from participating, would that not be discrimination in the provision of a service? At the same time, would not the staging of such art exhibition be the provision of a service of a different kind, namely entertainment, to the public generally, and would not a sign prohibiting the entry of Aboriginal people represent discrimination? The exhibition might represent the provision of a service of a different kind again to art collectors and prospective purchasers, and a prohibition placed upon people possessing a particular attribute as purchasers would again seem to be discriminatory.

37. I also agree that a service has the capacity to be identified in more than one way or that different facets of the activity may represent services which can be categorised differently. Returning to the example of the art exhibition, on the first occasion that an individual visits it, it may be solely for the purpose of entertainment. The individual may return on a later occasion with a view to making a purchase, or, for example, being permitted to take photographs for a newspaper article.

38. The above examples are also illustrative of another point made by Mr Borenstein and with which I agree. As was stated by Dawson and Gaudron JJ. in IW v. City of Perth at pages 22 and 23:

"...the provisions of the Act concerned with discrimination in the provision of goods or services...should be construed as widely as their terms permit. In particular "services", a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context".

39. Against this background, I am of the view that the MCC does provide a service to those who wish to participate in the Parade. I am of the view that such service is provided in each of the ways contended for by Mr Borenstein, and may also be a service provided in an additional way. Whilst I had some doubts concerning this at the time that I refused the interim injunction - although, of course, at that time the matter was not fully ventilated before me, I was not finally ruling upon it, and I was considering the matter on the balance of convenience - I am now convinced that, in organising and staging the Parade, the MCC is providing a service to participants and prospective participants.

40. In examining and identifying the service provided, I shall again deal with this in a different sequence to that argued by Mr Borenstein.

41. Firstly, I am of the view that the staging of the Parade itself provides a service to the participants. The fact that the Parade provides to the general public a service by way of entertainment does not detract from the proposition that it also provides to the participants a service - the opportunity to enhance the recognition and promotion of, in this instance, the individual culture. Falun Dafa has participated in many other parades. I accept that it is a known way of obtaining recognition and, as described by Counsel, "spreading the message". It was accepted by the MCC or its agent that the presentation of Falun Dafa was suitable for the Parade in relation to the icon of cultural diversity. There being nothing objectionable in that regard, participation in the Parade represented an opportunity for Falun Dafa to present its culture, beliefs and practices to a large audience. The service provided by the MCC in presenting the Parade was, if you like, a stage upon which participants could "strut their stuff" or a gallery where they could exhibit their wares, in each instance to a large audience. Whether it be described as advertising, promotion or educating the public, the MCC was providing a service relating to this - the service of providing a vehicle (the Parade) by means of which participants can get their message to the public. That is so whether the message relates to particular cultures, indigenous people, or other icons, and whether or not all participants present that message in the same way or at all.

42. Another comparison might be with an entity running a trade show or exhibition. It provides the exhibitors with a vehicle (the space and the facilities) by means of which they can present their goods and their message to interested parties and to the public at large.

43. In summary, I am of the view that the MCC provides a service of the kind described above to participants in the Parade. As shall be discussed, there is no doubt that Falun Dafa was excluded from such participation, and was so excluded on the basis of political belief or activity.

44. Further, I am satisfied that, for the purposes of S.42 of the Act, this failure to be able to spread the message concerning its culture and beliefs was a detriment suffered by Falun Dafa.

45. A second and closely related aspect of the service provided by the MCC to Falun Dafa is this, and I appreciate that it was not argued before me in any depth. It also seems to me that the MCC is providing a service by making available a property under its control. This concept was discussed by Brennan C.J. and McHugh J. in IW v. City of Perth at page 12, where it is said as follows:-

"Moreover, in an appropriate case allowing the use of property or facilities owned by or under the control of the Council may constitute the provision of a service by that Council. Providing use of libraries, parks and sporting facilities, for example, may constitute the provision of a service which attracts the operation of the Act".

46. As I understand the situation, the streets of Melbourne along which the Parade passes are under the control of the MCC. Certainly, as we have seen, it exercises the right of controlling who can and who cannot pass along its streets in the Parade.

47. Thus, it is not only providing a "stage" in the sense of the Parade, it is providing the very property along which the Parade will pass. Put another way, the MCC is providing as a service, a vehicle for promotion by participants. It is also providing as a service the property upon which the vehicle will travel.

48. Returning to the example of the art exhibition, and adopting the reference to parks by Brennan C. J. and McHugh J., it is then possible to consider the situation of such an exhibition conducted by a municipality in a park. The staging of the exhibition itself can be a service provided to the exhibitors, even if such exhibition were staged outside the boundaries of the municipality. The staging of the exhibition in a park controlled by the municipality can be seen as another service, or an additional or enhanced service.

49. Thirdly, and after some consideration, I agree with Mr Borenstein's proposition that the MCC is also providing the service of determining which of the prospective participants should be permitted to participate in the Parade. I might say that I found this a more difficult concept with which to grapple, and, given my findings in relation to the provision of a service by the MCC in staging the Parade, there may be no need to make a further ruling.

50. However, I accept the argument advanced by Mr Borenstein, based as it is on statements by five of the seven judges in IW v. City of Perth. I accept that, in this context, the MCC is also providing the service of determining who shall participate in the Parade. It is a service which attracts the operation of the Act. In providing that service the MCC must not discriminate within the meaning of the Act.

51. I shall not set out Mr Borenstein's argument again, save to say that I accept it.

52. In summary, I accept the arguments advanced by Mr Borenstein on behalf of Falun Dafa. I do not accept the arguments advanced by Ms O'Brien, including those based upon the concepts of employment and contracts for service which I have some difficulty in applying in the context of this case. I am of the opinion that the MCC is the provider of a service within the meaning of S.42 of the Act and that Falun Dafa is an "other person" within the meaning of that section.

53. Given that a service is provided, I am quite satisfied that there has been discrimination within the meaning of the Act. Indeed, as discussed, there is scarcely any argument concerning this issue. The letter of rejection from Mr Chapman on behalf of the MCC to Ms Rayment at Falun Dafa is clear and specific. Falun Dafa was excluded because of its "strong political associations". The letter emphasises "non-political entertainment". In any event, I accept on the overwhelming weight of evidence that Falun Dafa and its members engage in political activity and possess the attribute of "political belief or activity" referred to in S.6 of the Act, and it was the possession of that attribute that caused the refusal of the service.

54. The MCC breached the provisions of the Equal Opportunity Act 1995 by excluding Falun Dafa from the 2003 Moomba Parade. Falun Dafa possesses an attribute within the meaning of S.6 of the Act. That attribute is one of political belief or activity. The MCC has engaged in direct discrimination against Falun Dafa within the meaning of S.8 of the Act by treating it, with its attribute of political belief or activity, less favourably than it would have treated someone without that attribute. Contrary to the provisions of S.42 of the Act, it discriminated against Falun Dafa by refusing to provide it with a service and subjecting it to a detriment in connection with the provision of the service. Accordingly, it has breached the Act.

55. Falun Dafa has made out its case against the MCC in relation to its exclusion from the 2003 Parade. The next question relates to the relief which should be granted. It seeks an apology.

56. It was suggested by Mr. Borenstein that, should my decision arrive at this point, some time should be granted in order to permit the parties to attempt to reach agreement on the wording of such an apology. However, as I understand the situation, the MCC wants to be heard generally on the issue of an apology, and I understand that Ms. O'Brien's junior, Ms. Thomas, is to conduct argument in that regard. I may be in error, but the impression which I have gained is that the MCC wishes to be heard on the question of an apology generally, as opposed to the wording of any apology. Accordingly, I shall make no order at this time, but will permit the parties to attend on a date to be fixed when the question of the appropriate relief can be argued in full.

57. Whilst I am yet to hear argument, I will make the following observations for the assistance of the parties. They reflect the findings of fact already made, and are largely identical with findings and observations previously made in my order of 7 March 2003.

58. Falun Dafa applied in the proper way to participate in the 2003 Parade. The body to which the Council contracted out the creative and logistical aspects of the Parade, including the choreography, accepted the application. The acceptance was conveyed via e-mail and confirmed in writing. Falun Dafa went to a great deal of trouble to prepare its presentation. Costumes were organised. A rehearsal was conducted. It was prepared to give an undertaking that, whilst participating in the Parade, it would not engage in political activity. Its proposed presentation fitted admirably within the stated objects of the Parade.

59. Suddenly, and some weeks after the acceptance by its agent, the MCC announced that it was excluding Falun Dafa on the basis of its strong political associations. As I said in my earlier ruling, the green light suddenly turned red.

60. In my opinion, not only did the MCC discriminate against Falun Dafa, it treated it harshly. Falun Dafa was, effectively, led along the garden path to participate in the Parade, and then abruptly rejected. Whilst obviously I make no ruling in relation to it, some might draw the inference that it was the MCC, and not Falun Dafa, that was motivated by politics.

61. Whatever the reasoning behind the decision which it took, the situation was poorly handled by the MCC and considerable resultant inconvenience was caused.

Should a permanent injunction be granted prohibiting the MCC from excluding Falun Dafa from participating in future parades on the ground of its political beliefs or activities?

62. In relation to this head of relief, Mr. Borenstein agreed that the seeking of a permanent injunction was somewhat ambitious, but submitted that any vice that may be inherent in the granting of such an injunction could be overcome by the reservation of liberty to apply.

63. However, I am not satisfied that such an injunction should be granted at all. Even leaving to one side any argument that what is really being sought is a mandatory injunction re-worded so as to be expressed as a prohibition, I am of the view that Falun Dafa has not made out a case for the granting of the injunction sought. I am of this view for a number of reasons.

64. Firstly, the overwhelming weight of material, if not all the material, before me relates to what occurred in relation to the 2003 Parade. The fact that Falun Dafa was wrongly excluded from the Parade does not necessarily mean that there is a prospect that the same thing will happen again. In the wealth of material before me, there is nothing to indicate that Falun Dafa is applying to place any, and if so what, presentation in the 2004 Parade.

65. Expanding upon this issue, even if Falun Dafa has applied to participate and even if one assumes that its presentation would be much the same as that which was prepared for the 2003 Parade, there is nothing before me to establish what the nature of next year's parade (or, for that matter, parades over the next ten years) will be. There is evidence as to what the icons for the 2003 Parade were. There is evidence, and I have found, that the presentation foreshadowed by Falun Dafa was appropriate for one of those icons. But supposing the icons for a future parade were, for example, "Melbourne's Irish heritage" or "Victoria's bush fire fighting heroes"? Unless there was some radical transformation of the presentation, Falun Dafa would be completely irrelevant to a parade based upon such themes. Whatever its political beliefs, its exclusion from such a parade may not bring it within the operation of the Act because such exclusion would not be based upon the attribute. When various examples were being discussed, Mr. Borenstein agreed that the exclusion must be seen in the context of the activity. The example which he gave was that a motorcycle club could not expect to participate in a march of girl guides. Whilst this may be an extreme example, it underlines the point, and it is a point with which I agree.

66. However, given that there may be alterations to the icons or themes of the parade in the future, it also underlines a difficulty in exercising my discretion in favour of the type of future relief sought.

67. It might be said that the relief sought is a prohibition which only operates when there has been exclusion on the ground of lawful political beliefs or activities, as opposed to exclusion on the ground of irrelevance or some other factor. However, seeking relief in such a form is basically doing no more than re-wording, in precised form, the requirements of the Act. It is doing no more than seeking an injunction which effectively says "don't do it again" and "obey the law". Other than the fact that the MCC has done it once, there is nothing before me to suggest that it is in the process of doing, or will do, it again. If there existed evidence that a similar parade was being organised for 2004 and Falun Dafa was again seeking to be included, and was in danger of being excluded, the situation might be different.

68. In summary, the whole situation in relation to future relief is simply too hypothetical. I can find no evidence of substance concerning events of significance since the 2003 Parade. I was not directed to any. The Amended Particulars of Complaint do not refer to any. The application in respect of a permanent injunction, even with liberty to apply, seems to me to be inappropriate. Even if such injunction were confined to the 2004 Parade, it seems to me to be premature.

69. In summary, and bearing in mind the fundamental principles to be applied in exercising my discretion in relation to the granting of such an injunction - namely whether there is a serious question to be tried and the balance of convenience - I am of the view that there is no adequate factual or legal foundation for the granting of the relief sought in paragraph 13(a) of the Amended Particulars of Complaint.

70. I might add as an afterthought that, given my ruling concerning the MCC's somewhat shabby conduct in relation to the 2003 Parade, the necessity of litigation concerning this or a similar issue in relation to future parades will hopefully be avoided.

71. In summary, my findings and orders are as follows:-

1. Falun Dafa's application for a permanent injunction as against the MCC is dismissed.

2. Whilst I make no specific order pending further argument, I find that the MCC breached the provisions of the Equal Opportunity Act 1995 by excluding Falun Dafa from the 2003 Moomba Parade and thereby unlawfully discriminating against it.

Opportunity Act 1995

Falun Dafa Association of Victoria Inc - v - Melbourne City Council

At a glance

Court

Decision date

Source

Judgment (94 paragraphs)

Falun Dafa Association of Victoria Inc.v Melbourne CC [2003] VCAT 1955 (23 December 2003)

Parties

Legislation Cited (1)

Cases Cited (1)

**Falun Dafa Association of Victoria Inc - v - Melbourne City Council**

At a glance

Court

Decision date

Source

Judgment (94 paragraphs)

Falun Dafa Association of Victoria Inc.v Melbourne CC [2003] VCAT 1955 (23 December 2003)

Parties

Legislation Cited (1)

Cases Cited (1)

Falun Dafa Association of Victoria Inc - v - Melbourne City Council