Victorian Civil and Administrative Tribunal|2000-01-29

Leighton v State of Victoria [2000] VCAT 416 (29 January 2000)

application to strike out or dismiss complaint - claim of religious belief discrimination by refusal of request for dedicated free bus service for children at Catholic Primary School - definition of "services" - terms of services - Equal Opportunity Act 1995 ss 42 & 69; Education Act 1958 s82; Education Regulations 1988 Part 3.

DEPUTY PRESIDENT: I reserved my decision on this application to strike out or dismiss the complaint. My decision now is that the complaint should be dismissed. In my order I have reflected that decision and also given the respondent liberty to apply on the question of costs. I now give my reasons for this decision.

This is an application by the respondent, who is the State of Victoria in its capacity as the Department of Education, and I call the respondent the State in these reasons, to strike out or dismiss this complaint under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 which I call the VCAT Act.

The complaint consists of two claims, the first is that the State has discriminated against Mr Leighton or more properly Mr Leighton's children, who attend Saint Theresa's Catholic Primary School, because on 30 March 1998 it reduced the amount of the conveyance allowance which it paid to Mr Leighton in respect of his children from just over $600 a year per child to $300 a year per child. I call this claim the Conveyance Allowance claim.

I should pause to say at this point that it is clear from a reading of the complaint that the proper complainants are Mr Leighton's children although he is complaining on their behalf. It is also clear from the Equal Opportunity Act 1995 which in these reasons I call the Equal Opportunity Act, that such a complaint can be made by a parent of a child.

The second claim is that the State discriminated against Mr Leighton's children because it refused to provide a bus service to transport them and other children attending Saint Theresa's Catholic Primary School from their homes to the school which is in Torquay, and again from the school to their homes, while it provides a bus service to transport children to and from their homes to State schools which those children attend in the same area. The area for these purposes is the Anglesea, Bellbrae, Aries Inlet area.

The ground of discrimination claimed in both cases is religious belief. I call the first claim the Conveyance Allowance claim, I call the second the Bus Service claim. Mr Leighton, on behalf of his children, claims that his children's Catholic religious beliefs require them to attend a Catholic school and not a State school. It appears that what is claimed is indirect discrimination, that is, to express it in the terms of s.9 of the Equal Opportunity Act, that the State has imposed a condition or requirement that only those attending a State school will be provided with a free bus service to and from the school and will be provided with the full amount of conveyance allowance to assist them in transport to and from the school, that the Leighton's children, because of their Catholic religious beliefs cannot comply with this requirement or condition because by virtue of those beliefs they cannot attend a State school but must attend a Catholic school and so cannot obtain those benefits, that children without these religious beliefs can attend a State school and obtain those benefits, and that this requirement or condition is not reasonable.

The Tribunal has before it submissions from the respondent. Mr Leighton did not make submissions to the Tribunal on this application. The Tribunal notes that he is not legally represented. It is clear from the authorities that before I can strike out or dismiss a complaint under s.75 of the VCAT Act, the respondent must satisfy me, if it is the respondent that has applied for that step to be taken, that the claims are obviously unsustainable in fact or law or manifestly untenable.

The grounds in s.75 on which the State bases this application are that both claims are an abuse of process and that the Bus Service claim is also misconceived and lacking in substance. I first deal with the Conveyance Allowance claim. The State submits that this claim is an abuse of process because it has already been dismissed by the Equal Opportunity Commission, which I call the Commission, and under s.108, sub-s.4 of the Equal Opportunity Act cannot be revived. I agree with this submission.

It appears from the material before me both from the letter of referral written to this Tribunal by the Commission, and from letters written by the Commission to the respondent that by letter written in September 1998 the Commission informed the parties that it had declined the Conveyance Allowance claim under s.108 of the Equal Opportunity Act and referred the Bus Service claim to conciliation.

Under s.108, sub-s.2 a complainant has 60 days from the receipt of the Commission's notice stating that the claim is declined to request the referral of the complaint to VCAT. If referral is requested within that period the Commission must comply with that request. On the material before me I am satisfied that the Commission sent to the complainant and the respondent letters advising the parties that the complaint had been declined, on or about 22 September 1998 and that the Commission did not receive a request for referral from the complainant within the 60 day period and that the Commission then dismissed the Conveyance Allowance claim on 2 December 1998.

Section 108, sub-s.4 provides if the complainant does not notify the Commission under sub-s.2 the Commission may dismiss the complaint and the complainant may take no further action under this Act in relation to the subject matter of the complaint. In my view the Commission may regard each claim in a complaint as being a separate complaint and may deal with each claim accordingly. Here it appears that the Commission did exactly this, it declined and then dismissed the Conveyance Allowance claim and referred the other claim, the Bus Service claim to conciliation.

Section 108, sub-s.4 prevents the complainant taking any further action under the Equal Opportunity Act in respect of the dismissed conveyance allowance claim. By particularising this claim in his subsequent particulars of complaint, claiming discrimination and relief in respect of that claim, Mr Leighton is attempting to treat this as a live claim under the Equal Opportunity Act. He is prevented from doing this by s.108, sub-s.4. Moreover, to the extent that it might be argued that particulars of complaint are not a document under the Equal Opportunity Act, but are a document provided pursuant to the rules made under the VCAT Act, it would be an abuse of process for me to permit a claim to be raised in particulars of complaint where s.108, sub-s.4 of the Equal Opportunity Act would prevent final relief being granted. On this basis this claim should be dismissed under s.75 of the VCAT Act.

I now come to the Bus Service claim. The State submits that its conduct, its refusal to provide a bus service to transport children attending Saint Theresa's Catholic Primary School to and from that school is authorised by the Education Act 1958 and the Education Regulations 1988 and so falls within s.69 of the Equal Opportunity Act.

Section 69 is in Part 4 of the Act which is headed "General exceptions to and exemptions from the prohibition of discrimination". The effect of s.12 of that Act is that if conduct falls within a provision of Part 4 it does not constitute discrimination prohibited by the Act. Section 69 relevantly provides, sub-s.1, "A person may discriminate if the discrimination is necessary to comply with or is authorised by a provision of (a) an Act other than this Act; (b) an Enactment other than an Enactment under this Act". Sub-s.2, "For the purpose of sub-s.1 it is not necessary that the provision refer to discrimination as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination".

Section 69 is wider than its predecessor, s.39(e) of the now repealed Equal Opportunity Act 1984, a provision discussed by the High Court in the case of Waters v Public Transport Corporation reported in 1991, Equal Opportunity Cases at 92-390. That provision only covered conduct necessary to comply with a provision of another statute or statutory instrument. A number of the judges in the High Court in that case interpreted that provision as applying only where it specifically covered the discriminatory conduct in question rather than simply being expressed in general terms, see particularly the judgments of Chief Justice Mason and Justice Gaudron with which Justice Dean agreed.

Even though s.69 is wider than s.39(e) there are still limits on its application. Section 69 will cover conduct authorised or permitted by another relevant Act or Enactment as well as conduct necessary to comply with that Act or Enactment. Though the Act or Enactment need not use the term discrimination or be worded in a way that clearly refers to concepts or terms used in the Equal Opportunity Act, and need not refer to the Equal Opportunity Act itself, it must still authorise or necessitate the relevant conduct.

The State relies on the Education Act 1958 and the Education Regulations 1988 to authorise its conduct. Enactment is defined in s.4 of the Equal Opportunity Act clearly to include a Regulation. Section 82(g) of the Education Act empowers the Governor-in-Council to make regulations for or with respect to, and I quote, "The conveyance of pupils to State schools and classes and the arrangement or approval of transport services for that purpose and the conditions under which pupils attending other schools may be conveyed by any such transport service".

I pause here to explain that by s.21 the Minister is empowered to establish State schools. The Act makes specific provision for the operation of those schools including their administration and the education which they provide. See for example, s.13 and following which governs school councils, sections 22 and 23, which deal with instruction, and s.25 which deals with discipline. The Act makes different provision for non State schools. These are required to be registered, see s.37 and s.34.

Part 3 of the Education Regulations 1988 is headed, "Transport of students and payment of travelling allowances". Regulation 3.1 is headed, "Approval of transport services". It provides, "The Minister may approve transport services for the purpose of these regulations". Regulation 3.2 is headed, "Provision of costs". It relevantly provides, "The Minister may provide the full cost of transporting (a) a group of students to a State school on condition that the student so transported reside not less than 4.8 kilometres by the shortest practicable route from the school attended". In that paragraph I delete provisions relating only to secondary schools and I also do not refer to paragraphs (b) and (c) which relate to disabled students.

Regulation 3.3 is headed, "Transport of registered school students". It provides sub-Regulation 1, "The Minister may on receipt of a written application permit a student attending a registered school to travel to that school by an approved transport service" and then there is a reference to a service established for disabled children which is not relevant in this case and the regulation goes on, "when (a) the student resides not less than 4.8 kilometres from the school attended, and (b) the school attended is the nearest appropriate registered school", and again I delete the parts of the paragraph relating to secondary schools.

Sub-Regulation 2 provides, "Despite sub-Regulation 1 the Minister may where the circumstances warrant special consideration permit a student attending a registered school to travel to that registered school by an approved transport service, except one established for disabled students or for students in special classes on condition that preference is given at all times to the student who has the longest distance to travel and that (a) the student resides not less than 4.8 kilometres from that registered school, and (b) accommodation is available on the service and all attending the nearest State school are accommodated, and (c) no suitable public transport or school bus service is available".

Regulation 3.5 is headed, "Short distance transport", it provides, "The Minister may permit a student attending a State or registered school and residing less than 4.8 kilometres from the school attended to travel on an approved transport service other than one established for disabled students or students in special classes on condition that preference is given at all times to the student who has the longest distance to travel and (b) accommodation is available on the service after all students qualified to travel under the other provisions of this Regulation have been accommodated, and (c) no suitable public transport is available, and (d) there is no additional cost to the Ministry".

In my view the scheme of s.82(g) of the Education Act and of the provisions of the Education Regulations which I have mentioned is this. Section 82(g) does not empower the making of regulations concerning the arrangement or approval of services for the transport either separately or exclusively of students to and from registered schools, that is to and from non State schools. It only empowers the making of regulations for the arrangement or approval of services to transport students to and from State schools, but it also empowers regulations permitting transport services established for the transport of children to and from State schools to be used under specified conditions by students attending registered, that is non State schools. It is in this context that the regulations permit the Minister to approve transport services, that is services to transport children to and from State schools, see Regulation 3.1, to provide the cost of transporting those who live 4.8 kilometres or more from the nearest State school to and from that school, see Regulation 3.2 and under specified and limited conditions to permit students at a registered, that is a non State school, to use the service established for State school children.

This use is only available, as I have said, subject to very limited conditions. Those conditions relate to such things as how far from the registered school the student lives, that priority must be given to accommodating the needs of State school students and also the question of availability of other school bus services or public transport, see Regulations 3.4 and 3.5.

Mr Leighton's claim on behalf of his children is that the Minister has refused to establish a dedicated free bus service to cater for the students of Saint Theresa's primary school. The State submits that the Regulations authorised by and made under the Education Act only authorise the Minister to arrange for transport services for children attending State schools, that those provisions do not contemplate or authorise the provision of a separate dedicated service catering for children attending non State schools.

So the Education Act and the Education Regulations authorise the Minister to refuse to provide a service which falls outside the framework of that legislation. In this sense, the Minister's conduct, so the State says, is authorised by the Education Act and the Education Regulations and so falls within s.69 of the Equal Opportunity Act. It is therefore not prohibitive discrimination.

The submission involves a broad interpretation of the word "authorised" as used in s.69. It will not only apply to a provision of an Act or Enactment which expressly or by necessary implication allows a person to do something, that is to do a positive act. It will also apply where an Act or Enactment expressly or by necessary implication allows a person to refuse to do something. Here that implication in my view can be drawn from the wording of the particular statutory scheme embodied in the Education Act and the Regulations made under it.

Here the implication is drawn from the fact that the Minister is only permitted to establish services for the transport of State school children although others are on certain conditions allowed to use those services. On this basis I conclude that s.69 covers the refusal by the minister to establish a separate dedicated bus service for the students of Saint Theresa's Catholic Primary School. This must mean that s.69 is a complete answer to this claim, that the claim is therefore obviously hopeless and must be dismissed.

I would also add that given the nature of the services which the Education Act and the Education Regulations empower the Minister to provide, I doubt whether what is in question here is really the refusal to provide an existing service. Rather, in my view, the complainant's claim in fact requires the Minister to create a new service. I doubt that this is something covered by s.42 of the Equal Opportunity Act. For these reasons I conclude that both these claims should be dismissed because they are in fact misconceived and the Conveyance Allowance is an abuse of process. The whole complaint therefore must be dismissed and this application is successful. As I have said, I have made provision in the order for the respondent to apply for costs.

Opportunity Act 1995

Civil and Administrative Tribunal Act 1998

Education Regulations 1988

Opportunity Act 1984

Leighton v State of Victoria [2000] VCAT 416

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Judgment (32 paragraphs)

Leighton v State of Victoria [2000] VCAT 416 (29 January 2000)

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