PARTIES: LINDISFARNE R & S L A SUB-BRANCH AND CITIZEN'S CLUB INC

RETURNED AND SERVICES LEAGUE OF AUSTRALIA LTD (THE)

Discrimination Law - State provisions - Discrimination on the basis of political belief - Membership of an organisation - Imposition of membership requirement discriminatory.

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349; Australian Medical Council v Wilson (1996) 68 FCR 46; Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78; Secretary, Department of Foreign Affairs v Styles [1989] FCA 342; (1989) 23 FCR 251, referred to.

Anti-Discrimination Act 1998 (Tas), ss3, 14 and 16.

Judgment Number: [2004] TASSC 73

LINDISFARNE R & S L A SUB-BRANCH AND CITIZEN'S CLUB INC

& THE RETURNED AND SERVICES LEAGUE OF AUSTRALIA LTD

1 The Lindisfarne R & S L A Sub-Branch and Citizen's (sic) Club Inc ("the Sub-Branch") and the Returned and Services League of Australia Ltd ("the League"), together referred to as "the appellants", appeal against a decision of the Anti-Discrimination Tribunal of Tasmania ("the Tribunal") that Article 12 of the Articles of Association of the League is discriminatory insofar as it provides that the making of a declaration of preparedness to swear or affirm loyalty to the Sovereign of the Commonwealth, howsoever described, by applicants for membership shall be an essential pre-requisite for admission to membership, and should be amended. The provision of Article 12 in question is:

"12.10 No person who is an Australian citizen shall be admitted as an Ordinary Member unless he has signed a declaration that he is prepared to swear or affirm (as the case may be) loyalty to the Sovereign of the Commonwealth and that he will uphold the Constitution."

2 The decision that is the subject of this appeal is the outcome of an enquiry held by the Tribunal on a complaint by Donald Buchanan, the respondent, that the appellants had discriminated against him in connection with the "provision of facilities, goods and services" on the ground of his "political belief or affiliation" or his "political activity".

3 The objects of the League as expressed in its Memorandum of Association include the maintenance of a national association and the establishment, maintenance and control of branches and sub-branches throughout Australia and elsewhere. The League's Articles of Association include the following:

"20.1 The League shall be divided into Branches ('State Branches') and sub-Branches.

20.12 Each State Branch shall carry out and further the objects of the League and be bound by its Standing Policy. In addition it shall promote that Standing Policy within its jurisdiction and shall have such further powers, functions and duties as are hereinafter set forth in these Articles and as may be set forth in the By-laws or as are delegated to it by the National Executive.

20.13 Each State Branch may establish within its jurisdiction such sub-Branches as it may deem necessary or desirable and may make Rules, not inconsistent with these Articles or the By-laws, for the government and control thereof.

20.16 The Memorandum and Articles of Association, the Constitution or Rules (as the case may be) of all State Branches and sub-Branches shall be consistent with the Memorandum and Articles of Association and the By-laws of the League. If any are inconsistent they shall be altered so that the inconsistency is removed. Any State Branch or sub-Branch to which this sub-Article applies, covenants and agrees with the League so to do.

20.31 If any State Branch or sub-Branch contravenes or fails to observe or perform any of the provisions of the Memorandum of Association, these Articles or the By-laws or fails to be bound by or to promote the Standing Policy of the League or has been guilty of conduct prejudicial to the interests of the League the National Executive, subject to sub-Article 20.38, may cause notice in writing specifying such contravention, failure to observe or perform, or conduct, to be forwarded to the Secretary thereof. In addition, if a notice is forwarded to the Secretary of a sub-Branch, a copy shall be forwarded by the National Secretary to the Secretary of the State Branch having jurisdiction over that sub-Branch."

4 The background to Mr Buchanan's complaint is that when he sought to join, as an ordinary member, the League and the Sub-Branch, he was asked to fill in an application form and he was required to sign a declaration that he was prepared to swear or affirm loyalty to the Sovereign of the Commonwealth and that he would uphold the Constitution of the Commonwealth. As can be seen from the Articles of the League to which reference has been made, this requirement was a pre-condition to membership of the League, and the Sub-Branch was obliged to impose a similar pre-condition on membership of the Sub-Branch.

5 Mr Buchanan is a republican and believes that there should be an Australian head of state. He regarded it as hypocritical for him to swear loyalty to the Monarch. He amended his application for membership to declare that he was prepared to swear loyalty to the Commonwealth and that he would uphold the Constitution of the Commonwealth. Mr Buchanan's application for membership was not accepted. He was informed in writing by the Sub-Branch of the need to comply with Article 12.10 and told that as his application for membership did not comply with the prescribed requirements for eligibility for membership, it was rejected. He responded by making the subject complaint of discrimination pursuant to the Anti-Discrimination Act 1998 ("the Act"). The Act relevantly provides:

"14 (1) Discrimination to which this Act applies is direct or indirect discrimination on the grounds of any prescribed attribute.

(2) Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.

(3) For direct discrimination ..., it is not necessary -

(a) that the prescribed attribute be the sole or dominant ground for the unfavourable treatment; or

(b) that the person who discriminates regards the treatment as unfavourable; or

(c) that the person who discriminates has any particular motive in discriminating.

15 (1) Indirect discrimination takes place if a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who -

(a) share, or are believed to share, a prescribed attribute; or

(b) share, or are believed to share, any of the characteristics imputed to that attribute -

more than a person who is not a member of that group.

(2) For indirect discrimination to take place, it is not necessary that the person who discriminates is aware that the condition, requirement or practice disadvantages the group of people."

"3 In this Act -

'discrimination' means conduct referred to in sections 14 and 15;

'political activity' means engaging in, not engaging in, or refusing to engage in, political activity;

'political belief or affiliation' means holding or not holding a political belief or view;

'prescribed attribute' means an attribute specified in section 16;

(a) relating to access to, and the use of, any place that members of the public are permitted to enter; or

(b) relating to banking, insurance, superannuation or the provision of grants, loans, credit or finance; or

(c) relating to entertainment, refreshment or recreation; or

(e) relating to any profession, trade or business; or

(g) relating to selling, buying, leasing, assigning or disposing of an interest in land;"

"16 A person must not discriminate against another person on the ground of any of the following attributes:

(a) cause another person to contravene this Act; or

(b) induce another person to contravene this Act; or

(c) aid another person to contravene this Act.

(2) All persons referred to in subsection (1) are jointly and severally liable for any contravention under this Act."

"22 (1) ... this Act applies to discrimination ... against a person engaged in, or undertaking any, activity in connection with any of the following:...

6 The Tribunal published extensive written reasons for its decision in favour of Mr Buchanan, in the course of which it found:

* that this was not a case of direct discrimination under the Act, s14;

* that the imposition of the membership requirement, which obliged Mr Buchanan to sign a declaration acknowledging that he was prepared to swear or affirm loyalty to the Sovereign of the Commonwealth, amounted to indirect discrimination under the Act, s15, and that additionally the League breached the Act, s104, as it failed to ensure that the Sub-Branch did not engage in discrimination;

* that the discrimination so found was discrimination against a person engaged in, or undertaking, an activity in connection with the provision of services within the Act, s22(1);

* that the Tribunal had jurisdiction over the League as the League operates in Tasmania, draws membership from Tasmania and directs and controls the operation of the Tasmanian Branch and the subject Sub-Branch.

7 I will not set out the grounds of appeal as detailed in the notice of appeal. Counsel for the appellants presented the appeal on the basis of a concise written summary of the contentions he advanced on their behalf. In responding, counsel for the respondent focused his oral submissions on those contentions. I, likewise, will focus on those contentions in dealing with the appeal.

8 The impetus for this litigation was provided by the requirement that applicants for membership of the League, its branches and sub-branches, declare that they are prepared to swear or affirm loyalty to the Sovereign of the Commonwealth. The basis for the imposition of that requirement is Article 12.10. Surprisingly little evidence was put before the Tribunal about the introduction of this requirement. Mr Buchanan's evidence is that the 1919 Constitution of the League contained no reference to the requirement and no similar requirement had been imposed on him when he joined the League in 1947 and, after resigning, rejoined in 1983. Thereafter, he again resigned from the League and, when he applied to rejoin in 1999, he was surprised to find that the requirement had been introduced. Mr Barry Ginn, the President of the Sub-Branch, said he did not know when or why the Articles were amended to introduce the membership requirement. In the course of his evidence, when it was suggested by counsel for Mr Buchanan that the requirement was introduced in 1983, counsel for the appellants told the Tribunal that there was no dispute about that date. Mr Ginn agreed that the loyalty of ex-servicemen was not in question so that there had to be some reason, other than loyalty, for the introduction of the requirement. No further evidence in relation to the circumstances of the amendment of the Articles by the insertion of Article 12.10 was put before the Tribunal, although it is likely that information on this matter was available to the appellants. Mr Ginn also gave evidence to the effect that the reason for the rejection of Mr Buchanan's application for membership was his failure to comply with Article 12.10. Mr Ginn said he was not concerned with whether Mr Buchanan was a republican or not. Mr Buchanan said that republican members of the RSL were "rather looked down on" and he also gave evidence to the effect that Peter Phillips, Major General (retired), who was the National President of the League in 2001 had at the time of the republican referendum, asked members of the League to oppose the referendum. In these circumstances, and in the absence of evidence to the contrary, the Tribunal found that the purpose behind the introduction of the requirement was the promotion of a political situation, that is, "Australia as a Constitutional Monarchy", and that the League had "a political objective in imposing the requirement". Counsel for the appellants did not challenge these findings or put any submission in support of Ground 4 of the Notice of Appeal which is that: "The Tribunal erred in law by holding that the requirement of the Sub-branch that new members be prepared to swear or affirm loyalty to the Sovereign of the Commonwealth was a requirement of a political character for the purposes of the Act". The findings made by the Tribunal as to the purpose and objectives behind the requirement were open to the Tribunal and have not been shown to be in error.

9 In order for Mr Buchanan to establish indirect discrimination against the appellants, he had to prove:

* that the appellants impose the membership requirement, s15(1);

* that the membership requirement has the effect of disadvantaging Mr Buchanan as a member of a group of people who share a prescribed attribute (a political belief, s16(m)) more than a person who is not a member of that group, s15(1), ("group disadvantage");

* that the imposition of the membership requirement discriminates against a person, Mr Buchanan, engaged in, or undertaking any, activity in connection with the provision of services, s22(1)(c), ("discrimination in connection with services");

* that the membership requirement is unreasonable in the circumstances, s15(1), ("unreasonableness").

10 It was common ground between the parties, and so held by the Tribunal, that Mr Buchanan's republican belief was a "political belief" within s16(m). The Tribunal, in addition, held that when Mr Buchanan declined to declare that he was prepared to swear or affirm loyalty, he was engaging in "political activity" within s16(n). For the purposes of s15(1), the Tribunal identified the group of people who shared a prescribed attribute as being applicants eligible for membership of the League and the Sub-Branch, who hold beliefs that Australia should be a republic. The Tribunal held that the membership requirement had disadvantaged Mr Buchanan as a member of a group of people who hold republican beliefs, more than a person who is not a member of that group. The Tribunal further found that the disadvantage suffered by Mr Buchanan was real; he genuinely wished to be a member of the appellant organisations and had been excluded from membership as a consequence of his republican beliefs. Counsel for the appellants submits that the membership requirement does not disadvantage the group identified by the Tribunal, as a republican is not disadvantaged by being excluded from an organisation whose objects include the promotion of a constitutional monarchy in Australia. For example, one objective of the League, as specified in its Memorandum of Association, is: "To promote loyalty to the Sovereign and to the Institution of the Crown". Counsel submits that, in the light of that objective, it can hardly be a disadvantage to a person who holds republican beliefs to be excluded from membership of the League. I reject this submission. There is ample evidence to found the Tribunal's finding on disadvantage. The evidence establishes that persons who hold republican beliefs have joined and continue to be members of the organisations, no doubt attracted by the many and varied benefits of membership. That the monarchist aspect of the League's objectives does not negate the attractions of membership for some republicans, does not mean that the membership requirement does not disadvantage those republicans who are barred from membership as, in conscience, they cannot satisfy the requirement.

11 Counsel for the appellants further submits that the existence of republican members of the organisations shows that the membership requirement does not disadvantage republicans and demonstrates that it is perceived by them as being no more than a requirement that an applicant for membership declare readiness to make an oath consistent with the common law duty owed by all citizens to the country. As to the common law duty owed by every citizen to the Crown in right of Australia, see; Kahan v Board of Examiners [1939] HCA 26; (1939) 62 CLR 422 at 443; Re Howard [1976] 1 NSWLR 641 at 645 - 646; and Re Miller [1979] VicRp 40; [1979] VR 381 at 383. It is reasonable to infer that some republican members of the organisations joined subsequent to the introduction of the membership requirement and that they perceived it to be no more than an acceptable requirement that they declare a readiness to make an oath of allegiance to the Crown in right of Australia. This does not undermine the Tribunal's finding as to disadvantage. The evidence establishes that otherwise qualified applicants for membership who cannot reconcile their republican beliefs with the membership requirement are an identifiable group and the requirement disadvantages them more than a person who is not a member of this group.

Direct and indirect discrimination are mutually exclusive

12 It is generally accepted that provisions in similar terms to s14 (direct discrimination) and s15 (indirect discrimination) are mutually exclusive in their operation: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, Dawson and Toohey JJ at 392 - 393, and McHugh J at 402; Australian Medical Council v Wilson (1996) 68 FCR 46, Heerey J at 55; and Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, Sackville J at 97. The authorities distinguish between discriminatory practices which differentiate on the basis of an impermissible consideration (direct discrimination) and discriminatory practices which do not overtly differentiate on the basis of an impermissible consideration, but have substantially the same effect (indirect discrimination). Indirect discrimination is said to be "facially neutral": Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, Deane and Gaudron JJ at 175; and Waters v Public Transport Corporation, Mason CJ and Gaudron J at 358. As to the difference between indirect discrimination and direct discrimination in the Equal Opportunity Act 1984 (Vic), McHugh J observed in Waters v Public Transport Corporation, at 402, that for the purposes of indirect discrimination, the term "discrimination" is defined in an artificial sense and deals with situations where a requirement or condition is imposed equally but has an adverse, or more adverse, effect on persons of a particular status or of a different private life.

13 The Tribunal found that Mr Buchanan's claim was not one of direct discrimination, but that he had established indirect discrimination. As to the latter finding, the Tribunal concluded that the purpose of Article 12.10 was "to promote the current political situation, Australia as a Constitutional Monarchy", and that the League "has a political objective in imposing that requirement". Counsel for the appellants submits that if these conclusions of the Tribunal are correct, then this is a case of direct discrimination, and that given that the two forms of discrimination are mutually exclusive, it cannot also be a case of indirect discrimination. This submission is a somewhat unsavoury attempt to take advantage of the Tribunal's exoneration of the appellants from direct discrimination, and distorts the concept of mutual exclusivity which, in this context, means no more than it is only when direct discrimination cannot be established that indirect discrimination is considered; see Waters v Public Transport Corporation, McHugh J, at 402. The Tribunal's assessment of the purpose and objective of Article 12.10, does not make the discrimination it effects direct. The requirement imposed by Article 12.10, does not directly differentiate between people on the basis of their political beliefs; that result is achieved overtly and amounts to indirect discrimination. I reject counsel's challenge to the Tribunal's finding of indirect discrimination on the basis that what it found occurred was, if anything, direct discrimination.

14 For the membership requirement to amount to indirect discrimination for the purposes of s15(1), the requirement must be "unreasonable in the circumstances". The Tribunal noted that Mr Buchanan carried the onus of proving the unreasonableness of the requirement (Waters v Public Transport Corporation, McHugh J at 411); and set out the principles it derived from the authorities for the determination of this issue. Counsel for the appellants does not submit that the Tribunal misstated the relevant law, but he submits that the Tribunal erred in concluding that the membership requirement was unreasonable.

15 Whether a requirement is reasonable or unreasonable is a question of fact for the Tribunal to determine by weighing all the circumstances and relevant factors; Waters v Public Transport Corporation, Mason CJ and Gaudron J at 365, Deane J at 383, Dawson and Toohey JJ at 395, and McHugh J at 410. In determining this question, regard is to be had to the activities of the appellants and whether it is reasonable to impose the requirement for the purposes of those activities. The requirement's reasonableness depends on whether, in all the circumstances, it is reasonable to impose it in order to perform an activity. The circumstances of the case will include the nature and extent of the discriminatory effect of the requirement and the possibility of alternative action; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, Davies J at 89 and Sackville J at 111. The test of reasonableness is less demanding than one of necessity, but more so than one of convenience. It involves weighing the nature and extent of the discriminatory effect against the reasons advanced in favour of the requirement, giving full weight to all the circumstances of the case: Secretary, Department of Foreign Affairs v Styles [1989] FCA 342; (1989) 23 FCR 251, Bowen CJ and Gummow J at 263; and Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission, Davies J at 88 - 89.

16 The Tribunal observed that it had no evidence from the appellants of the reasons for imposing the requirement. The Tribunal accepted that the declaration demanded by the requirement was no more than an expression of the duty that all citizens owe to their country. However, the Tribunal found that the requirement had been introduced with a political objective, the promotion of an Australian Constitutional Monarchy. The Tribunal had no evidence about: the utility of the requirement in achieving that political objective; any link between the requirement and the activities of the appellants; whether the requirement was of significance to any activity carried out by the appellants; or, any activities of the appellants that would be undermined if the requirement was not imposed. In the absence of evidence of these matters, and in the absence of evidence of the reasons for the introduction and retention of the requirement, the Tribunal, in assessing the requirement's reasonableness, had virtually nothing to weigh against its discriminating effect. The Tribunal concluded that the appellant's activities and objectives could either be performed without the requirement, or by allowing an alternative form of declaration to cater for applicants for membership with republican beliefs; and that taking into account all relevant factors, in particular, the lack of any need for the requirement or adverse consequence from its removal, its imposition is unreasonable in the circumstances. The conclusion reached by the Tribunal was open to it on the evidence, and I am unpersuaded that in so concluding the Tribunal erred.

Discrimination against a person engaged in an activity in connection with services

17 Counsel for the appellants submits that insofar as Mr Buchanan may have shown that there was discrimination, it was not established that it was discrimination for which the League was responsible pursuant to s22(1), which relevantly provides that: "... this Act applies to discrimination ... against a person engaged in, or undertaking any, activity in connection with any of the following: ... (c) provision of facilities, goods and services; ... "

18 Section 22(1) is a somewhat curious provision insofar as its primary focus is on the activities of the person discriminated against, rather than those of the discriminator. Nevertheless, the determination of whether the victim was engaged in an activity in connection with any of the specified matters, almost inevitably, involves a consideration of the activities of the discriminator. The Tribunal held that Mr Buchanan was engaged in the activity of applying for membership of the appellant organisations and that this activity was in connection with the provision of services by both organisations to members.

19 Counsel for the appellants submits that the connection between the discrimination and Mr Buchanan's engagement in an activity in connection with the provision of services is too remote as:

* at the relevant time neither organisation was providing services to Mr Buchanan;

* Mr Buchanan's application for membership was not in connection with the provision of such services.

Counsel submits that even if Mr Buchanan's application had been successful, there is no evidence, or reason to assume, that he would necessarily ever have been provided with any services by the organisations. Indeed, counsel submits that there is no evidence that the League provides services to anyone in Tasmania.

20 Whilst the phrase "in connection with" has a wide operation, it must be considered within the confines of s22(1). In Minister for Immigration and Multicultural Affairs v Singh & Ors [2000] FCA 845; (2000) 175 ALR 503, the court considered the phrase "in connection with" as it appears in the Migration Act 1958 (Cth), s476(i)(a). Black CJ, Sundberg, Katz and Hely JJ said in their joint judgment at 509:

"The case law on the phrase 'in connection with' indicates that it is an expression of wide connotation that merely requires a relation between one thing and another: eg Perrett v Commissioner for Superannuation (1991) 29 FCR 581; Burswood Management Ltd v Attorney-General (Cth) [1990] FCA 203; (1990) 23 FCR 144; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. But in Burswood at 146 the Full Court quoted with approval a statement made by Davies J as follows:

'Expressions such as "relating to", "in relation to", "in connection with" and "in respect of" are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute ... The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.'

The phrase 'in connection with' does not necessarily require a causal relationship between the matters said to be connected: Perrett (supra), and phrases such as 'having to do with' are sometimes referred to as a useful synonym: re Nanaimo v Community Hotel Ltd [1944] 4 DLR 638. But so too are phrases such as 'in the course of', or 'forming part of''. Dawson v Hoffman Brick and Potteries Ltd [1924] VicLawRp 31; [1924] VLR 208. As the Full Court emphasised in Burswood (supra) at 146 reference to reported cases is of little assistance, because the nature of the relationship between one thing and another which is encompassed by the phrase 'in connection with' depends so much upon the statutory context in which the words appear."

21 Whilst no challenge has been made to the Tribunal's finding that the Sub-Branch provided services to its members, counsel for the appellants submits that there is no evidence that the League provided services to anyone in Tasmania. The Act, s3, contains an inclusive definition of "services" which is set out in par5 of these reasons.

22 A broadly similar definition of "services" is contained in the Equal Opportunity Act 1984 (WA), s4(i), one of the sub-paragraphs of which is, "services relating to entertainment, recreation or refreshment". The meaning of services in that Act was considered in I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1 where Gummow J said, at 41 - 42:

"The term 'service' and its variants are of wide and varied meaning. One speaks of the duties or work of a public servant, being a person serving the state or the community in a particular capacity. Service may also be rendered to an individual by conduct tending to the welfare or advantage of that person.

In Gould v Yukon Order of Pioneers, the Supreme Court of Canada construed legislation which prohibited discrimination 'when offering or providing services, goods, or facilities to the public'. L'Heureux-Dubé J, in the course of dealing with the question of statutory construction said:

'Dictionary entries, while far from conclusive, may be of some assistance in this regard: the various commonly understood meanings for the words chosen by the legislature can be a starting point for the interpretative analysis. For example, the Concise Oxford Dictionary (8th ed 1990) defines a "service" to include assistance or a benefit given to someone, or the act of helping or doing work for another or for a community. Le Nouveau Petit Robert (1993) provides a slightly different definition for "service", which encompasses economic activities, other than the supply of tangible property, as well as functions having a "common or public" utility. These definitions suggest that the expression "providing services" has a broad meaning which encompasses activities in which a benefit other than a good is conferred on, or effort expended on behalf of another person or a community.'"

23 The evidence includes a pamphlet entitled "JOIN FORCES WITH THE RSL". The pamphlet contains an application for membership, as well as information that includes the following:

This is your invitation to join The Returned & Services League of Australia.

Your membership can help the League so that we can continue to help serving and ex-service members of the Australian Defence Force.

Just six months effective service as a regular, Reservist or National Serviceman or Servicewoman in the Australian Defence Force or Peacekeepers or the Armed Forces of Australia's allies makes you eligible.

The RSL evolved as a direct result of the camaraderie, concern and mateship shown by the 'Diggers' for the welfare of their mates during and after the 1914 - 1918 War. That ethos of compassion and service remains today the motivating influence of the League.

The RSL is a national organisation operating through National and State Branches and local Sub-Branches where every member has a voice in League matters.

To ensure that programs are in place for the well-being, care, compensation and commemoration of serving and ex-service Defence Force members and their dependants.

To serve the interest of its members, veterans, the ex-service community and serving members of the Australian Defence Force, the RSL executes its role by effectively implementing the following objectives which are in accord with the League's Mission Statement:

* Assistance to all veterans and ex-service men and women in need.

* Participation in Employment Programs for veterans, ex-service members and their dependants.

* Provision of a means for members to enjoy camaraderie, fellowship and mateship.

* Act as an effective lobby group to Government and its departments.

* Provision of moral and active support for the ADF."

24 Other relevant evidence is derived from the objectives of the League, as detailed in its Memorandum of Association, par4. Many of them relate to the provision of what, by any test, would be categorised as services. They include:

"(d) To provide for the sick and wounded and needy among those who have served, and their dependants, including pensions, medical attention, homes and suitable employment.

(k) To establish, maintain, furnish and equip clubs, clubrooms, information bureaux, libraries, literary, social, educational and benevolent institutions for the benefit and advancement of members of the League, its Branches and Sub-Branches, and to print, circulate and publish such papers, books, magazines and circulars, and carry on such other literary and journalistic undertakings as may be conducive to these objects."

25 In the course of giving evidence to the Tribunal, Mr Barry Ginn, the President of the Sub-Branch, said, "the RSL":

* was formed to further the aims and objectives of returned servicemen in relation to health and welfare matters and things of this nature;

* was a pretty powerful lobby group on behalf of its members, particularly in the parliamentary field;

* had a strong liaison with the Department of Veterans Affairs in relation to matters of welfare;

* provided assistance, care and welfare to servicemen in distress, or having hard times, such as home-bound ex-servicemen and women.

As to who organises attention to these matters, he said: "It works right down the line from the National to the State to the Sub-Branch ... each does their little bit". When questioned with particular reference to the role of the "National Body" he agreed that "it provided these services to its members".

26 In the face of unchallenged evidence of this nature, the Tribunal concluded that the League was engaged in the provision of services in Tasmania. Plainly, it could not properly have done otherwise. Equally plainly, Mr Buchanan, in applying for membership of the League and the Sub-Branch was engaged in an activity in connection with the provision of the services provided by these bodies. There is nothing remote about the connection between Mr Buchanan's application for membership and the provision of the services. There is a direct link between membership and the receipt of services. The Tribunal did not err in finding that both the Sub-Branch and the League provided services in Tasmania, and that Mr Buchanan in applying for membership of these bodies was engaged in an activity in connection with the provision of services.

Liability of the League pursuant to s104

27 The Tribunal found that each appellant had indirectly discriminated against Mr Buchanan by imposing the membership requirement. The Tribunal found that an additional basis for the League's liability to Mr Buchanan was that it had breached s104 by failing to ensure that its members did not engage in discrimination. That section relevantly provides:

"(2) An organisation is to take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination ....

(3) An organisation that does not comply with this section is liable for any contravention of this Act committed by any of its members, officers, employees and agents."

28 Counsel for the appellants submits that the League cannot be liable to Mr Buchanan pursuant to s104 by reason of any failure on its part to ensure that its members did not engage in discrimination in circumstances where the Tribunal made no findings against any members. This submission is rejected. The Tribunal expressly found that the League "has been instrumental in its members breaching the Act", and it "is clear that the ... League has failed to take reasonable steps to ensure that its members comply with the Act". These findings were open to the Tribunal and have not been shown to be in error.

"It is noted that as a consequence of the Tribunal's conclusions, Article 12 of the Articles of Association of the Second Respondent is discriminatory in so far as it provides that the making of a declaration of preparedness to swear or affirm loyalty to the Sovereign of the Commonwealth, howsoever described, by applicants for membership shall be an essential prerequisite for admission to membership. The Tribunal consequently orders that the Second Respondent amend the Article so that the discriminatory requirement is not imposed."

30 Counsel for the appellants submits that the order is beyond power insofar as it purports to have effect beyond Tasmania. The League is a national body, it is incorporated in the Australian Capital Territory. Counsel submits that the order made requires the League to amend Article 12, in his words "presumably by deleting Article 12.10 in its present form", which would give the order extraterritorial effect.

31 It is trite law that legislation is presumed not to have extraterritorial effect. In Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 304 at 363, O'Connor J said:

"In the interpretation of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were to be taken literally in the widest sense, would apply to the whole world, but they are always read as being primâ facie restricted in their operation within territorial limits."

32 There is nothing in the Anti-Discrimination Act to suggest that s89, which deals with the Tribunal's power to make orders, is intended to have extraterritorial operation. It follows that the Tribunal's order could not relate to discrimination by the League outside of Tasmania. When the order is read against the background of the presumption that legislation does not have extraterritorial effect, it can be seen that counsel's construction of the order is not correct. The order that the League amend Article 12 so that the discriminatory requirement "is not imposed" must be read as meaning "is not imposed in Tasmania".