Sydney University Postgraduate Representative Association (SUPRA) & ors v... [2005] NSWSC 268 | Case summary

REASONS FOR DECISION Introduction 1 In these three complaints the applicants have alleged that the respondents discriminated against them on the ground of race in relation to the provision of public transport services. The applicants claimed that the NSW Government's longstanding policy of not providing full-fee paying overseas university students with concessional travel on public transport services contravenes the Anti-Discrimination Act 1977 (NSW) (the Act) because it amounts to unlawful discrimination on the basis of nationality, which is one of the sub-categories of discrimination on the ground of race. 2 The three complaints were heard by the Tribunal on 4 and 5 October 2005. All three applicants were represented by Mr Crowley (instructed by Mr Aristotle Paipetis) and all four respondents were represented by Ms Anderson (instructed by the Crown Solicitor for NSW). By agreement between counsel for the parties the three complaints were heard together. All of the evidence was admissible in each complaint, subject to relevance. 3 There were no evidentiary disputes. Both counsel tendered, without objection, hundreds of pages of documents. Mr Crowley tendered statements from three witnesses: Mr Haoyu Wang, Mr Arturo Bravo Nuevo and Mr Roberto Martinez Neira. None of these people were required for cross-examination. Ms Anderson did not tender any statements from any witnesses. The reports from the President of the Anti-Discrimination Board (ADB) concerning each complaint were tendered, without objection, by Mr Crowley. 4 These complaints turn on the proper characterisation of various activities undertaken by the respondents and on questions of law. Background 5 These complaints have a long history. On 26 July 2002 a number of organisations and individuals lodged complaints of discrimination on the ground of race against the Minister of Transport Services in relation to the provision of public transport services in NSW to full-fee paying overseas university students. Three of those complaints are the subject of these proceedings. 6 The first complaint was lodged by Sydney University Postgraduate Representative Association (SUPRA) on behalf of a number of its members. On 22 October 2002 SUPRA informed the ADB that the complaint had been lodged on behalf of 14 named members of the organisation. Each of the named persons filed a written declaration in which he or she authorised and consented to SUPRA representing that person for the purposes of the complaint filed on 26 July 2002. By the time this complaint came on for hearing in October 2005 SUPRA purported to represent only one named person, Mr Haoyu Wang. At the time the complaint was lodged Mr Wang, who is a Chinese citizen, was a postgraduate student at the University of Sydney. 7 The second complaint was lodged by Mr Arturo Bravo Nuevo and the third complaint was lodged by Mr Roberto Martinez Neira. At the time the complaints were lodged Mr Bravo Nuevo and Mr Martinez Neira, who are both Spanish citizens, were postgraduate students at the University of Sydney. The other complaints which were lodged with the President of the ADB on 26 July 2002 have been resolved or discontinued. When the term "the applicants" is used in this document it is intended to refer to Mr Bravo Nuevo, Mr Martinez Neira and the person represented by SUPRA, Mr Wang. 8 Similar language was used in all three complaints which are currently before the Tribunal. The substance of the complaints was set out in paragraphs numbered 1 to 7 of the complaints lodged by Mr Bravo Nuevo and Mr Roberto Martinez Neira: 1. The Complainants are not of Australian nationality, descent or national origin and are enrolled as full time students at the University of Sydney. 2. The Complainants from time to time use public transport in New South Wales ("NSW"), such as railway passenger services, as operated by the State Rail Authority of NSW ("SRA"), and bus and ferry services, as operated by the State Transit Authority of New South Wales ("STA") ("public transport"). 3. The Complainants are obligated to pay full fare when they use public transport in NSW. 4. The Complainants have paid and continue to pay full fare when they use public transport in NSW. 5. Full time students attending universities in NSW, who are of Australian nationality, descent or national origin ("full time Australian university students"), are entitled to concessional travel passes and are not required to pay full fare when they use public transport in NSW. 7. (sic) Full time Australian university students were granted and continue to have concessional travel passes for use on public transport in NSW pursuant to a determination of the Respondent under s 88 Transport Administration Act 1988 (NSW) (the "Act"). 9 By letter dated 19 November 2002 the President of the ADB invited the Director General of the Department of Transport to respond to the complaints. On 28 February 2003 Mr Greg Booth, the Manager of Legal Services for the NSW Department of Transport responded, in similar terms, to each of the complaints. Mr Booth denied that there had been any discrimination on the ground of race in relation to the eligibility criteria for the provision of student travel concession cards. 10 In his response to the SUPRA complaint Mr Booth described the operation of the concessional fare scheme in the following terms: Full-time full fee paying overseas students are not eligible for a student travel concession card as they are granted entry to study in Australia on the basis that they are self-supporting and not receive financial assistance from the Australian government. As there is no information provided in the complaint about the circumstances of the individual complainants I have assumed, on the basis of the complainants' membership of SUPRA, that they are full-time full-fee paying overseas students on student (temporary) visas and not: (a) Australian citizens or permanent residents; or (b) overseas students studying in Australia under an Australian Government International Exchange or recognised sponsorship programme; or (c) otherwise covered by the residence status of relatives residing in NSW. Students covered by criteria (a)-(c) are entitled to a student travel concession card provided they meet other eligibility criteria. To be eligible for a New South Wales Student Identification Card a student must be: a full-time tertiary student attending a university, TAFE or private college in NSW/ACT; 16 years and over; enrolled for a minimum of nine weeks; attending day classes (TAFE and private college students must attend face to face day classes of no less than 20 hours a week); in receipt of Austudy, allowances paid under the Secondary Tertiary Education Allowances Schemes, or payments in connection to university grants, Teachers College scholarships or bursaries; or a full time NSW/ACT school student, 19 years and over Students are not eligible if they are: part-time; engaged in business or employment; a full fee paying overseas student; an external study student; in receipt of remuneration excluding Austudy and allowances. Students apply to registered tertiary educational institutions or City Rail, Passes and Concessions for the travel concession cards. Tertiary institutions determine whether a student is eligible for a travel concession card by reference to the above criteria. A student travel concession card entitles recipients to the following: a student rated fare or a SRA single, return, 7 day Rail Pass, weekly travel pass and flexi pass periodical tickets; and half fare on STA daily tickets, Travel 10, bus tripper, day tripper and weekly travel pass tickets. Similar language was used in Mr Booth's responses to the other complaints. 11 Mr Booth attached to his responses to the President of the ADB copies of the application form to be used when applying to the SRA or the STA for a student concession card and a document issued by CityRail called 'Passes and Concessions Guide'. Both of these documents contained information about eligibility for a student concession card which was similarly worded to the extract which has been reproduced from Mr Booth's letter. 12 The President of the ADB also asked the Director General to give reasons why the applicants were not entitled to concessional travel on public transport. Mr Booth provided the following response in his letter dated 28 February 2003: In July 1989 it was decided, as part of a review of student travel concessions, not to renew or issue new travel concession cards to full fee paying overseas students. The decision was based on Commonwealth government policy that full-time full fee paying overseas students entering Australia on visas for study purposes did not qualify for government financial assistance. Overseas students studying in Australia as part of an international exchange programme or other subsidised study programmes continued to be eligible for student travel concessions. In (sic) 1989 decision has continued in force. 13 On 22 January 2004 the President of the ADB referred all three complaints to the Tribunal for hearing as they had not been resolved by informal mechanisms. The respondents to the original complaints were the Minister for Transport Services (the Minister) and the Director General, NSW Department of Transport (the Director General). At the request of the applicants the Tribunal ordered that the State Transit Authority (STA) and the State Rail Authority (SRA) be added as parties to the complaints. Both the STA and the SRA are public authorities established pursuant to the Transport Administration Act 1988. At the time the complaints were lodged with the President of the ADB (26 July 2002), the STA was responsible for the provision of bus and ferry services in NSW and the SRA was the provider of railway passenger services. It was not in dispute that since 1 January 2004 Rail Corporation New South Wales has been the provider of railway passenger services in NSW and that Sydney Ferries has been the provider of ferry services in Sydney. The STA continues to be the provider of public bus services throughout NSW and ferry services in Newcastle. The SRA no longer provides public transport services. 14 These complaints proceeded to hearing on the basis of a number of documents filed by the parties. They were: 1. Amended Points of Claim filed on 3 November 2004 2. Respondents' Points of Defence in Response to Applicants' Amended Points of Claim filed on 15 December 2004 3. Reply to the Respondents' Points of Defence in Response to the Applicant's Amended Points of Claim filed on 12 January 2005 4. Outline of Submissions for the Applicants filed on 31 August 2005 5. Written Outline of Respondents' submissions filed on 28 September 2005. As we noted in paragraph [3], both parties tendered hundreds of pages of documents. The first applicant's complaint: a complaint by a representative body on behalf of named persons 15 The first applicant, SUPRA, lodged a complaint with the President of the ADB as a representative body on behalf of named persons. At the time the complaint was lodged it was regulated by s 88(1A) of the Act. As we have already noted, SUPRA informed the ADB that the complaint had been lodged on behalf of 14 named members of the organisation. Each of the named persons filed a written declaration in which he or she authorised and consented to SUPRA representing that person for the purposes of the complaint. By the time this complaint was referred to the Tribunal it had been reduced to a claim on behalf of one named member, Mr Haoyu Wang. 16 In the paragraph 1 of the Amended Points of Claim SUPRA alleged that it had sufficient interest in the complaint to represent its member, Mr Wang, that it was acting "bona fide and in good faith", and that it had been authorised by Mr Wang to represent him in these proceedings. The respondents admitted these allegations in paragraph 1 of the Points of Defence. As these admissions encompass all of the matters which are necessary for a complaint by a representative body on behalf of a named person to proceed, there is no need for us to consider this matter any further. The issues 17 A number of issues arise for consideration in this case. They may be characterised as follows: 1. The period of time covered by the complaints. 2. The nature of the "services" provided by some or all of the respondents. 3. Whether those "services" were provided to the applicants on terms which constituted unlawful discrimination on the ground of race. 4. Whether any conduct by the respondents which would have otherwise amounted to unlawful discrimination on the ground of race was lawful because the conduct was performed pursuant to statutory authority. 5. Whether any conduct by the respondents which would have otherwise amounted to unlawful discrimination on the ground of race was lawful because the conduct was a special needs service for people of Australian nationality which fell within s 21 of the Act. 6. Whether the Minister and the Director General are liable for any conduct which contributed to any acts of unlawful discrimination committed by the third respondent (the STA) or the fourth respondent (the SRA) in relation to the provision of services to the applicants. Period of time covered by the complaints 18 The period of time covered by the complaints, which were lodged with the President of the ADB on 26 July 2002, is a preliminary issue which requires resolution because it has been alleged by the applicants that the conduct about which they have complained continued up until the date of the hearing, albeit that the corporate identity of some of the public transport providers has changed since the complaints were first made. 19 In the past the period of time encompassed by a complaint was often a matter of dispute. Until the Act was amended by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (which commenced operation on 2 May 2005), s 88(3) stipulated that a complaint must be lodged within six months of the date upon which the alleged contravention of the Act occurred unless the President of the ADB consented to a complaint being lodged out of time. Consequently, the Tribunal had no jurisdiction to find that an act of unlawful discrimination had occurred on a date which was more than six months prior to the date of the complaint unless the President had consented to an 'out of time' complaint. Further, in a series of cases which culminated in the Appeal Panel decision in Wollongong City Council v Bonella [2002] NSWADTAP 26, the Tribunal held that whilst a complaint could be made of a continuing contravention of the Act, the complaint could not encompass events which occurred after the date upon which the complaint was lodged with the President of the ADB. 20 This regime has now changed substantially as a result of recent amendments to the Act. The complaints in this case straddle both the former regime and that which has existed since the amendments to the Act came into effect on 2 May 2005. The intention of the legislature is that the new procedural regime should apply to part-heard cases because Part 5 of Schedule 1 to the Act stipulates that the amendments effected by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 apply to proceedings not finalised on the date of the commencement of the Amendment Act. 21 The old 'six month rule' no longer exists. The President of the ADB now possesses a discretionary power to decline a complaint if all or part of the conduct alleged occurred more than 12 months prior to the making of the complaint (s 89B(2)(b)). If the President does not exercise the discretionary power to decline a complaint, it appears that the complaint may encompass conduct which occurred more than 12 months before the date upon which the complaint was lodged. 22 Whilst there is nothing in the amendments to the Act which directly alters or challenges the earlier Tribunal rulings that a complaint cannot encompass events which occurred after the date upon which the complaint was lodged, s 91C of the Act now permits the President of the ADB to amend a complaint after it has been made. This power, which may be used to deal with allegations that there has been a continuing contravention of the Act, was not in existence at the time the complaints in this case were within the jurisdiction of the President. Consequently, it has no relevance to this case. 23 The recent amendments to the Act also give the Tribunal a similar power. Section 103 of the Act now permits the Tribunal to amend a complaint at any stage of proceedings and to include additional complaints. This broad power may be used to deal with allegations that there has been a continuing contravention of the Act. As no application was made to the Tribunal to invoke s 103, there is no need for us to consider whether the complaints should be amended to encompass any conduct which is alleged to have occurred between the date upon which the complaints were lodged and the date of hearing. 24 As it is still not possible for a complaint to encompass conduct which occurred after the date upon which the complaint was initially made, unless the powers contained in either s 91C or s 103 have been exercised, and as no application was made to the Tribunal that it invoke the powers in s 103 to amend the complaints, the period of time covered by the complaints in this case is the six month period prior to the date upon which the complaints were lodged with the President of the ADB which was 26 July 2002. The services provided by the respondents 25 The Act renders it unlawful for various people to discriminate against other people on nominated grounds in various aspects of public life. One of those aspects of public life is the provision of goods and services. One of the prohibited grounds of discrimination is race. The relevant provision in this case is s 19 which provides as follows: It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 26 It is necessary to determine whether some or all of the respondents are persons who provide services. The term "services" is defined in s 4 of the Act in the following non-exhaustive terms: services includes: (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. The term "public authority" is not defined in the Act but s 5 provides that the Act binds the Crown. 27 It was not in dispute that the STA and the SRA were providers of "services" within the meaning of the Act. That does not obviate the need to describe those services with reasonable precision. Mr Crowley advanced various alternatives concerning the characterisation of the "services" allegedly provided by all four respondents. Ms Anderson disputed whether the Minister and the Director General were the providers of any "services" within the meaning of the Act. 28 The High Court has been called on to consider the meaning of the term "services", when used in anti-discrimination legislation, in two cases: Waters v Public Transport Corporation (1991) 173 CLR 349 and IW v City of Perth (1997) 191 CLR 1. Whilst both of those cases involved different statutory definitions in different legislation from different jurisdictions, various members of the High Court made statements of general application which are useful in this case. The actual meaning of the word "services" in s 4 of the Act has been considered by the NSW Supreme Court in two cases: by Sully J in Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 and by Barr J in Director-General, Department of Community Services v MM and another [2003] NSWSC 1241. 29 In all of the judgments in all of these cases the word "services" has been interpreted expansively. In IW v City of Perth (1997) 191 CLR 1 at 12, Brennan CJ and McHugh J said that, "…if the term 'service', read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a 'service' for the purpose of the Act". In that case all of the other High Court justices made comments which indicated support for the proposition that the word "services" should not be subjected to a narrow interpretation when used in anti-discrimination legislation. 30 The proper characterisation of the "services" in question is clearly important. In IW v City of Perth (1997) 191 CLR 1 at 16-17, Brennan CJ and McHugh J said 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 or services the alleged discriminator provides. 31 In an earlier case, Waters v Public Transport Corporation (1991) 173 CLR 349, McHugh J considered the issue of characterisation at greater length. After commenting that "the identification of the relevant services is a question of fact", and describing the manner in which the relevant statutory provision under consideration in that case (which was similar to s 19 of the Act) operated, McHugh J stated (at 404-405): Accordingly, the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, e.g., the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as "the public transport system". If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, "transportation of members of the public by trams" might identify the service with sufficient precision to enable the relevant issues to be resolved. 32 In this case there was no dispute that during the period of time covered by the complaints the SRA and the STA provided the services described in paragraphs (c) and (e) of the definition of "services" in s 4 of the Act, being "services relating to transport or travel" and "services provided by a council or public authority". In keeping with McHugh J's exhortation in Waters v Public Transport Corporation (1991) 173 CLR 349 at 404-405, it is desirable to describe those services in a little more detail so that they are the "services which are relevant to the complainant or any person or persons whom the complainant represents". On the facts of this case the relevant service provided by the STA was transportation of members of the public by bus and ferry. The relevant service provided by the SRA was transportation of members of the public by train. These matters are not controversial. Collectively they may be referred to as public transport services. 33 The applicants contended that both the Minister and the Director-General were also providers of services. Ms Anderson disputed this contention. Because of the conclusions we have reached in this case about the liability of both the Minister and the Director-General pursuant to s 52 of the Act, which renders people liable in some circumstances for contributing to an act of unlawful discrimination by another person, it is, strictly speaking, unnecessary for us to determine this matter. For the sake of completion, however, we should record some observations concerning the applicants' arguments. 34 Mr Crowley characterised the relevant "service" provided by the Minister and the Director General in a number of different ways. First, he submitted that because the Minister and the Director General were given powers by the Transport Administration Act 1988 to superintend the activities of the various statutory authorities, including the STA and the SRA, which were established by that Act to provide public transport services, both the Minister and the Director-General should be characterised as providers of public transport services. It is unnecessary to consider the terms of the Transport Administration Act 1988 in detail in order to reject that submission. It would be a distortion of language to conclude that the Minister and the Director General were providers of public transport services just because they have a statutory role on behalf of the NSW Government in supervising some of the activities of the authorities who actually provide those services. 35 Secondly, Mr Crowley submitted that concessional travel is in itself a service and that the Minister and the Director General were responsible for determining who received that service. There may be some substance to that submission if the service is characterised, in so far as the Minister is concerned, as determining eligibility for concessional travel on public transport. In the Director General's case the relevant service appears to be implementing the Minister's determinations concerning eligibility for concessional travel. The Minister's and the Director-General's powers to do these things are set out in the Transport Administration Act 1988. 36 The Minister is given the power by s 88(1) of the Transport Administration Act 1988 to "determine the classes of persons who are entitled to be issued with a free travel pass or a concessional travel pass by an authority". This is clearly a grant of power to determine that particular groups of people are entitled to use public transport services on terms which are different to the terms which ordinarily apply. The charges which ordinarily apply for the use of public transport services are set by the relevant authorities themselves (s 85), subject to limited supervision by the Minister. Section 88(2) provides that a person who is the holder of a free or concessional travel pass "is entitled to travel free or to the benefit of the concession (as the case requires) on all services to which the pass applies". Section 88(3) stipulates that the relevant authority is responsible for issuing free or concessional travel passes. The cost of free and concessional travel is ultimately borne by consolidated revenue because s 88(5) provides that, except in limited circumstances which are not presently relevant, the authority is not required to issue free or concessional travel passes in accordance with the Minister's determinations unless the amount of expenditure incurred, or the amount of revenue foregone, by the use of these passes is reimbursed by payments made to the authority pursuant to s 39 of the Transport Administration Act 1988. 37 Section 39(1) of the Transport Administration Act 1988 directs the Director General to "administer, or arrange for the administration of, any scheme approved by the Minister for Government subsidised travel on passenger services" and s 39(2) stipulates that "[p]ayments required to be made in accordance with any such scheme shall be made from such money as may be provided by Parliament for the purpose". 38 It is strongly arguable that when the Minister exercises his or her statutory power to determine who shall be entitled to receive free or concessional travel on public transport, and when the Director-General exercises his or her statutory power to implement those determinations, both are performing "services relating to transport of travel" within the meaning of paragraph (c) of the definition of "services" in s 4 of the Act. It is also strongly arguable that when the Minister and the Director General exercise these powers that they are performing "services provided by a…public authority" within the meaning of paragraph (d) of the definition of "services" in s 4 of the Act. Whilst the term "public authority" is not defined in the Act, it appears that the Minister and the Director General fall within the broad description given to that term by Mason CJ, Brennan and Gaudron JJ in Re Anti-Cancer Council of Victoria; ex parte State Public Services Federation (1992) 175 CLR 442 at 450-451. 39 The reported cases demonstrate that there is no impediment to the exercise of a statutory power being characterised as a "service" for the purposes of anti-discrimination legislation. In both Waters v Public Transport Corporation (1991) 173 CLR 349 and IW v City of Perth (1997) 191 CLR 1 the power to provide the "service" in question was statutory. In Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745, Sully J found that police officers provided "services" within the meaning of the Act to both the community at large and, in certain circumstances, to particular individuals. In Director-General, Department of Community Services v MM and another [2003] NSWSC 1241, Barr J found that the Department of Community Services provided "services" within the meaning of the Act to people who applied to be foster parents. In that case Barr J referred to a number of Australian and United Kingdom decisions concerning anti-discrimination legislation in which a broad range of public sector activities had been characterised as "services". 40 The applicants also contended that the Minister was the provider of goods which were the actual concession cards supplied to various categories of people for use on public transport. This argument is not persuasive for two reasons. First, a concession card is a physical object which has no value or utility other than to alter the terms upon which a service is provided. Consequently, it makes sense to focus upon the service rather than to distort the meaning of the term "goods". Secondly, the Minister does not provide concession cards to people. Section 88(3) of the Transport Administration Act 1988 stipulates that it is the responsibility of the transport authorities, not the Minister, to provide concession cards to eligible persons. 41 In summary, we are satisfied that the STA and the SRA provided the applicants with the public transport services which are described more fully in paragraph [32]. Whilst we are satisfied that the Minister and the Director General were not the providers of public transport services, we are satisfied that the Minister provided the service to the public at large of determining eligibility for concessional travel on public transport and that the Director General provided the service to the public at large of implementing the Minister's determinations. Because of the conclusions we have reached concerning the contribution by both the Minister and the Director General to the contraventions of the Act committed by the STA and the SRA it is unnecessary for us to further consider the activities of the Minister and the Director General as service providers in their own right. Unlawful discrimination on the ground of race 42 The substance of the applicants' case is that the STA and the SRA discriminated against them on the ground of race in the terms upon which they were provided with public transport services because of the operation of the concessional fare system. It is alleged that the Minister and the Director General caused, instructed or aided the STA and the SRA to engage in those acts of unlawful discrimination. The applicants claim that whilst they were obliged to pay the full or ordinary fare when they used the public transport services provided by the STA and the SRA, similarly placed Australian university students paid a lower fare because they were entitled to concessional travel. 43 It was not in dispute that people described as "full fee paying overseas students" were not entitled to the same concessional travel on public transport as other university students. It was also not in dispute that the concessional fare system operated as a result of a determination made by the Minister pursuant to the Transport Administration Act. That determination was then implemented by the Director General and carried into effect by the STA and the SRA. 44 The applicants contended that the effect of this concessional fare system was that university students who were not of Australian nationality paid higher fares on public transport than similarly placed students who were of Australian nationality. This was said to constitute discrimination on the ground of race in the terms upon which public transport services were provided. The respondents denied the allegation that the operation of the concessional fare system amounted to discrimination on the ground of race in the terms upon which public transport services were provided. In the alternative, the respondents submitted that even if the operation of the concessional fare system did amount to discrimination on the ground of race it was not unlawful as concessional fares were determined by the Minister pursuant to statutory authority and, as a result, this practice was exempted from the operation of the Anti-Discrimination Act. 45 As we have already noted, s 19 of the Act renders it unlawful for a person who provides services to discriminate against another person on the ground of race by refusing to provide that person with those services, or, as is alleged in this case, in the terms on which those services are provided. The concept of discrimination on the ground of race is defined in s 7 of the Act. As these complaints were presented as direct discrimination cases, only part of s 7 is relevant. That part, s 7(1)(a), provides as follows: (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race 46 As the Appeal Panel pointed out in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, direct discrimination requires consideration of two issues: differential treatment and causation. Differential treatment involves comparing the respondent's treatment of the alleged victim with the respondent's treatment of another person similarly placed person of a different race. On the facts of this case each applicant must prove that the respondents treated them less favourably in the terms upon which they were provided with public transport services than in the terms upon which the respondents provided public transport services to a person of a different race in the same or similar circumstances. The person with whom the comparison is made, the comparator, may be a real or a hypothetical person. In most instances the comparator is a hypothetical person. If this comparison leads to the conclusion that each applicant was treated less favourably than another person of a different race in the same or similar circumstances differential treatment has occurred. It is then necessary to determine whether the prohibited ground of discrimination, in this case "race", was a cause of that differential treatment. 47 In the circumstances of this case the issue of causation is more complex than that of differential treatment because the respondents have asserted that there were good and proper reasons for the policy concerning eligibility for concessional travel on public transport which had nothing to do with race. The precise test for causation in anti-discrimination proceedings continues to present some difficulties because it requires an objective finding to be made about the reasons or grounds which caused the respondent to act as he or she did. It is not a search for the respondent's intention or motive in acting as he or she did, even though in some cases evidence of intention or motive may assist in identifying the grounds or reasons for the respondent's conduct. 48 In Director General of Education v Breen [1982] 2 IR 93 at 95 Street CJ said that the prohibited ground must have "a causally operative effect" upon the conduct said to constitute the unlawful discrimination. In Waters v Public Transport Corporation (1991) 173 CLR 349 at 400-401 McHugh J said that the conduct of the respondent must "be actuated by" the prohibited ground meaning that there must be "a causal connection between the act of the discriminator which treats a person less favourably" and the prohibited ground. McHugh J went on to say that the prohibited ground "must be at least one of the factors which moved the discriminator to act as he or she did". 49 The High Court most recently considered this issue in a case which arose under the Disability Discrimination Act 1992 (Cth), Purvis v New South Wales (2003) 217 CLR 92. Whilst there were differences of emphasis in the various judgments, there does not appear to have been any conflict in the reasoning. Gleeson CJ referred to the "genuine basis" of the decision under question and said that when considering causation in anti-discrimination proceedings it was appropriate to consider "normative considerations arising out of the legal context" in which impugned conduct has occurred. McHugh and Kirby JJ (in dissent) stated (at 142-143): The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind. 50 Gummow, Hayne and Heydon JJ also considered this issue (at 163): For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of". 51 As we have pointed out, the first part of any direct discrimination case involves the issue of differential treatment. It is necessary to engage in a process of comparison. We are required to determine whether the applicants were treated less favourably than a person of a different race was, or would have been, treated in the same or similar circumstances. On the facts of this case the appropriate comparator is a similarly placed university student of a different race to the applicants who used the same public transport services as the applicant. As there is no suggestion that there is evidence of actual comparators, it is necessary to determine how a hypothetical person of a different race would have been treated. We must first determine what is meant by "race", both in the Act and in the context of this case. 52 The word "race" is defined in s 4 of the Act in a non-exhaustive fashion: "race includes colour, nationality, descent and ethnic, ethno-religious or national origin". None of those terms, such as "colour" or "nationality", are themselves defined in the Act. There have been cases in other jurisdictions where appellate courts have considered the meanings of these terms when used in anti-discrimination legislation. 53 The key term in this case is "nationality". This word is often contrasted with "national origin" which has a different meaning. It is particularly important to note at this stage that "nationality" does not fall within the concept of race under the Commonwealth Racial Discrimination Act 1975 but that the word "nationality" is included within the definition of "race" in the anti-discrimination legislation in every Australian state and territory (see s 4 Equal Opportunity Act 1995 (Vic); Schedule, Anti-Discrimination Act 1991 (Qld); s 4 Equal Opportunity Act 1984 (WA); s 5 Equal Opportunity Act 1984 (SA); s 3 Anti-Discrimination Act 1998 (Tas); Dictionary, Discrimination Act 1991 (ACT); s 4 Anti-Discrimination Act 1992 (NT)). 54 The meaning of the term "nationality" was considered by the House of Lords in Ealing London Borough Council v Race Relations Board [1972] AC 342 and by the Full Court of the Federal Court in Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202. The findings in both those cases were consistent. 55 Ealing was a case which first arose under a statute, the Race Relations Act 1965, which was repealed before the case reached the House of Lords. That Act was replaced by the Race Relations Act 1968 which governed the case at the time the final appeal was heard. Both Acts rendered it unlawful for a person to discriminate against another "on the ground of colour, race or ethnic or national origins" in certain circumstances. None of those terms were defined in the statutes. The Acts did not refer to discrimination on the ground of "nationality". Both Acts made it unlawful to discriminate on the nominated grounds in relation to the provision of housing. The case concerned the rule of a local council and housing authority which stipulated that an applicant for public housing "must be a British subject within the meaning of the British Nationality Act 1948". 56 Mr Zesko, who was a person of Polish nationality at the time he first applied to be placed on the public housing waiting list, lodged a complaint with the Race Relations Board under the Race Relations Act when his application was rejected by Ealing LBC. When Mr Zesko became a British citizen at a subsequent date he was placed on the waiting list. He argued that his place on the waiting list should be determined by the date upon which he first applied for public housing whereas the council insisted that his place should be determined by the date upon which he became a British citizen. The local council maintained that it was lawfully entitled to discriminate against Mr Zesko on the ground of his "nationality". The Race Relations Board argued that discrimination on the ground of "national origins", which was prohibited by the Race Relations Act, included discrimination on the ground of "nationality". 57 The central question for determination in the House of Lords was: "do the words 'national origins' amount for present purposes to the same thing as 'nationality'?" (per Lord Donovan [1972] AC 342 at 354). All members of the House of Lords proceeded on the basis that the word "nationality" was synonymous with "citizenship". A majority of the Law Lords found that "national origins" had a much broader meaning than "nationality". Lord Cross explained the difference in meaning between the two terms (at pp 365-366): There is no definition of "national origins" in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as a "nation" - whether or not they also constitute a sovereign state. The connection will normally arise because the parents or one of the parents of the individual in question are or is identified by descent with the nation in question, but it may also sometimes arise because the parents have made their home among the people in question…Of course, in most cases a man has only a single "national origin" which coincides with his nationality at birth in the legal sense and again in most cases his nationality remains unchanged throughout his life. But "national origins" and "nationality" in the legal sense are two quite different conceptions and they may well not coincide or continue to coincide. That is shown by this very case. Mr Zesko was born in 1913 when Poland - though a "nation" - was not a sovereign state but part of the Russian Empire. So at birth his "national origins" were Polish but his nationality was Russian. When Poland became an independent state after the first war he became a Polish citizen but now though his "national origins" have remained throughout Polish he has become a citizen of the United Kingdom by naturalisation. 58 As the discrimination occurred because Mr Zesko was not a British citizen at the time he applied for public housing (or, in other words, the discrimination occurred on the ground of his "nationality" rather than his "national origins"), the House of Lords granted a declaration that there had been no breach of the Race Relations Act. 59 A similar result was reached by the United States Supreme Court when interpreting that country's Civil Rights Act 1964 which is generally regarded as the progenitor of United Kingdom and Australian anti-discrimination legislation. Section 703 of the Civil Rights Act 1964 renders it unlawful for an employer to refuse to hire a person "because of such individual's race, color, religion, sex, or national origin". In Espinoza v Farah Manufacturing Inc (1973) 414 US 86 the plaintiff argued that an employer's failure to hire her because she was a Mexican citizen constituted discrimination on the ground of her national origin. The US Supreme Court held that "Congress did not intend the term 'national origin' to embrace citizenship requirements" (414 US at 89) and "nothing in the Act makes it illegal to discriminate on the basis of citizenship" (414 US at 95). 60 In 1976 the Westminster Parliament responded to the decision in Ealing by changing the law (see M Connolly, Townshend-Smith on Discrimination Law: Text, Cases and Materials (2nd ed), Cavendish, London, 2004 at p 141). When the Race Relations Act 1968 was repealed and replaced by the Race Relations Act 1976, the term "racial grounds" was defined in s 3 of the Act to include "nationality". The US Congress, on the other hand, has not amended the relevant provisions in the Civil Rights Act 1964 in response to the Supreme Court's decision in Espinoza. 61 As we have noted, discrimination on the ground of "nationality" is not prohibited by the Commonwealth Racial Discrimination Act 1975. "Race" is not defined in the Racial Discrimination Act 1975, or in the international convention upon which the Act is based, the International Convention on the elimination of all forms of Racial Discrimination. The key provisions in the Racial Discrimination Act refer to discrimination on the ground of "race, colour or national or ethnic origin". In addition, s 9 of that Act prohibits discrimination on all of these grounds and discrimination on the ground of "descent". This language is drawn from Article 1 of the Convention which states: 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens. 3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality. In keeping with the clear language of Article 1.2 of the Convention, the Racial Discrimination Act 1975 does not prohibit discrimination which involves distinctions or preferences between citizens and non-citizens of Australia or, to state the same proposition in the language which is relevant in this case, the Commonwealth Act does not prohibit discrimination on the ground of nationality. 62 In Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 the Full Court of the Federal Court was required to determine whether the term "national origin", when used in s 10 of the Racial Discrimination Act 1975, included "nationality". The Full Court of the Federal Court adopted the views of the majority of the House of Lords in Ealing. As we have pointed out, the Racial Discrimination Act 1975 does not prohibit discrimination on the ground of "nationality". In a joint judgment (Carr, Sundberg and North JJ) the Full Court concluded that "the primary judge was right in construing nationality as equivalent to citizenship, but different from 'national origin'" ((1998) 90 FCR 202 at 211). The Full Court pointed out that "[c]itizenship (which for present purposes has been accepted as synonymous with nationality) is, in international terms, a universally recognised and understood concept or status". 63 The fact that the terms "citizenship" and "nationality" are generally used synonymously is borne out by looking at the Commonwealth statute book. "Citizenship" tends to be the more modern expression. The law which governs Australian citizenship is found in the Citizenship Act 1948. Prior to 1973 the legislation was known as the Nationality and Citizenship Act 1948. Prior to 1948 the relevant legislation was the Nationality Act 1920. Ms Anderson did not seek to dispute the notion that the word "nationality", when used in the definition of "race" in s 4 of the Act, means citizenship. The central question in this case is whether some or all of the respondents discriminated against the applicants on the ground of their nationality or citizenship. 64 When undertaking the comparison required in order to determine whether there has been differential treatment we must consider whether the applicants were treated less favourably than a university student of a different nationality would have been treated in the same or similar circumstances. Mr Wang is a person of Chinese nationality and both Mr Bravo Nuevo and Mr Martinez Neira are people of Spanish nationality. If we compare their treatment by the STA and the SRA with the way in which a similarly placed person of Canadian or British nationality would have been treated, the evidence reveals that there would not have been any difference in treatment. If, however, we compare their treatment by the STA and the SRA with the way in which a similarly placed person of Australian nationality would have been treated, the evidence reveals that Mr Wang, Mr Bravo Nuevo and Mr Martinez Neira were treated less favourably in the same or similar circumstances because a similarly placed university student of Australian nationality who sat next to them on the train or the bus would have been entitled to a concessional fare whereas the three men in question were required to pay the full or ordinary fare. It is important to explain how we have reached the conclusion that there was differential treatment in this case. 65 There is no dispute that the STA and the SRA did not provide concessional travel on public transport to university students described as "full fee paying overseas students". This occurred because of a determination made by the Minister pursuant to s 88(1) of the Transport Administration Act. In order to determine whether this practice resulted in differential treatment it is necessary to determine what is meant by the term "full fee paying overseas students". 66 The evidence before the Tribunal revealed that there is no register of determinations made by the Minister pursuant to s 88(1) of the Transport Administration Act. We were informed by Ms Anderson that it has not been the practice of successive Ministers of Transport to record his or her determinations pursuant to s 88(1) of the Transport Administration Act in a formal written instrument. Consequently, there is no primary source for us to consider when trying to determine what is meant by the term "full fee paying overseas students". Despite this lack of a formal written instrument it is not in dispute that during the period of time covered by these complaints the STA and the SRA did not permit "full fee paying overseas students" to have concessional travel and that those public transport agencies adopted this course because they believed that they were complying with a determination made by the Minister pursuant to s 88(1). 67 The respondents tendered various documents ranging from letters written by different public officials commenting upon the NSW Government's policy concerning concessional fares for "full fee paying overseas students" to extracts from Hansard which recorded questions in Parliament about the issue. The applicants also tendered numerous documents which included Ministerial correspondence as well as pamphlets issued by public transport providers in which reference is made to the fact that "full fee paying overseas students" are not eligible for the concessional travel on public transport which is available to other university students. As far as we are aware the term "full fee paying overseas students" is not defined in any of the hundreds of pages of documents which were tendered by the parties. Ms Anderson was unable to refer us to any document in which the term is defined. 68 The evidence reveals that it was employees of the universities in NSW, rather than employees of the SRA, the STA, the Minister, or the Director General, who determined whether a person was a "full fee paying overseas student" and was thereby rendered ineligible for a travel concession card. As the correspondence reproduced in paragraph [10] reveals, full-time tertiary students in NSW were eligible to receive a student travel concession card provided that they met a number of additional eligibility criteria concerning matters such as a minimum period of enrolment. There were a number of disqualifying factors, such as being a part-time student or being engaged in business or employment. Being a "full fee paying overseas student" was a disqualifier in the sense that a student who met all of the other eligibility criteria was automatically disqualified if he or she was characterised as a "full fee paying overseas student". Thus, a student who was a "full fee paying overseas student" was treated differently to a similarly placed student who was not a "full fee paying overseas student". 69 The term "full fee paying overseas students" is one which has been used in Australia's higher education sector for many years. The term has two components: "full fee paying" and "overseas students". The descriptor "full fee paying" appears to have been employed to distinguish a group of overseas students from other domestic and overseas students for two purposes. First, until recently it was not possible for Australian universities to charge domestic students fees for undergraduate courses. That restriction did not apply to "overseas students". Secondly, Australian universities have for many years admitted some "overseas students" to their courses without the payment of any fee by those students because the students came to the universities under exchange and sponsorship programmes. 70 There are a number of pieces of Commonwealth legislation in which the term "overseas student" is defined (see e.g. s 3 Higher Education Funding Act 1988; s 5 Education Services for Overseas Students Act 2000; Schedule 1 Higher Education Support Act 2003). The definitions in these Acts are consistent. It is instructive to consider the definition of "overseas student" in s 3 of the Higher Education Funding Act 1988 which was the legislation which governed the payment of university fees at the time the facts of this case arose: "overseas student" means a person who: (a) is not an Australian citizen; and (b) is enrolled, or proposes to become enrolled, in a course of study of an institution; but does not include: (c) a person entitled to stay in Australia, or to enter and stay in Australia, without any limitation as to time; or (d) a New Zealand citizen; or (e) a diplomatic or consular representative of New Zealand, a member of the staff of such a representative or the spouse or dependent relative of such a representative. 71 As the letter from Mr Booth to the President of the ADB (reproduced, in part, in paragraph [10]) reveals, universities determined whether a particular student was eligible for a public transport concession cases after having regard to the criteria published by the public transport providers. It is reasonable to assume that the universities would have employed the definition of "overseas student" set out in the previous paragraph. As we have noted, "full fee paying overseas students" are simply a sub-category of "overseas students". 72 The definition of "overseas student" from s 3 of the Higher Education Funding Act 1988 is based on nationality. An "overseas student" is a person who is, or is about to become, a student at an Australian educational institution and is a person of a nationality other than Australian. No person of Australian nationality can fit within the definition of "overseas student" because paragraph (a) of the definition makes it clear that Australian nationality is a disqualifier. Not all people of a nationality other than Australian fit within the definition because of the operation of paragraphs (c), (d) and (e). Paragraph (c) excludes some people who are not of Australian nationality, and who may be of any other nationality, from the definition of "overseas students". These are people generally known as Australian permanent residents. They are people who have the legal right to reside permanently in Australia but who have not become, or are not yet eligible to become, Australian citizens. Paragraph (d) refers to people of New Zealand nationality and paragraph (e) refers to people of any nationality who happen to be New Zealand diplomats or the family or staff members of a New Zealand diplomat. For the purpose of access to Australian higher education the people referred to in paragraphs (c), (d) and (e) have been treated in the same fashion as Australian citizens. 73 Thus, some full time university students other than people of Australian nationality were entitled to student concessions on public transport if they were excluded from the definition of "overseas student" because they were Australian permanent residents, New Zealand citizens, or the family or staff members of a New Zealand diplomat. This fact does not detract from the conclusion that Mr Wang, Mr Bravo Nuevo and Mr Martinez Neira were treated less favourably than a student of Australian nationality would have been treated in the same or similar circumstances. Even though some people other than those of Australian nationality were entitled to the student concessions to which all university students of Australian nationality were entitled (subject to satisfying the other eligibility criteria), it does not alter the fact that Mr Wang, Mr Bravo Nuevo and Mr Martinez Neira were treated less favourably than a similarly placed university student of Australian nationality. Had they been of Australian nationality they would have been eligible for concessional travel on public transport. There is no suggestion that any of the other disqualifying factors (e.g. engaged in business or employment) applied to the applicants. There was differential treatment in the terms upon which the STA and the SRA offered and provided public transport services to the applicants. 74 The second issue to consider is causation. In the context of a direct discrimination case this means the reason or grounds for the differential treatment. It is necessary for the applicants to establish that the STA and the SRA treated them less favourably than others because of their nationality. The respondents argued that there were good and proper reasons for excluding "full fee paying overseas students" from eligibility for concessional travel which had nothing to do with their nationality. The primary argument advanced by the respondents was that "full fee paying overseas students" were denied concessional travel on public transport because people in this category had been permitted to enter Australia on a temporary student visa only after declaring that they had sufficient funds to support themselves whilst in Australia. Presumably, the Minister's primary motive when the decision was made not to permit "full fee paying overseas students" to enjoy the travel concessions granted to others was to protect State revenue because s 88(5) of the Transport Administration Act effectively provides that, ordinarily, a public transport authority must be reimbursed from consolidated revenue for the moneys forgone when providing any passenger with concessional travel. There appears to be no reason to dispute the assertion made by Ms Anderson that in the case of "full fee paying overseas students" this would amount to a substantial sum of money to be paid from State revenue to the public transport authorities. 75 Whilst this argument reveals that there may not have been any intention on the part of the Minister to harm or disadvantage university students who were not of Australian nationality when the decision was made not to permit "full fee paying overseas students" to enjoy the travel concessions granted to others, the various statements from Purvis (reproduced at paragraphs [49] and [50]) reveal that the absence of discriminatory motive or intention is not relevant when considering whether the differential treatment occurred because of nationality. By adopting a policy which specifically referred to "full fee paying overseas students" as a category of students who were denied the benefit of concessional travel which was granted to similarly placed students of Australian nationality, and bearing in mind the finding that to be an "overseas student" a person must be of a nationality other than Australian, it is self-evident that the applicants received differential treatment because of their nationality. The reason why they were denied concessional travel was because they were "full fee paying overseas students" and that is a categorisation which ultimately turns, primarily, upon nationality. 76 Ms Anderson raised two important points in her written submissions which should be answered. First, she submitted that the purpose of the Act when it dealt with discrimination on the ground of nationality was to prohibit discrimination against people of a particular nationality. In other words, the only prohibited conduct is discrimination against people because they are, for example, of British or Irish nationality. There is nothing in the legislation, or in other significant documents such as the Premier's Second Reading speech, which supports this construction of the Act. It would make nonsense of a general prohibition against discrimination on the ground of nationality to conclude that the prohibition is triggered only when people of a particular nationality are singled out and treated less favourably than people of every other nationality. Secondly, Ms Anderson submitted that the Act "does not prohibit the Government from determining that non citizens should not be eligible to receive Government benefits granted to Australian citizens". The short answer to that submission is that it is wrong, unless the difference in treatment is specifically authorised by legislation, because the NSW Parliament decided in 1977 to include "nationality" in the definition of "race" in s 4 of the Anti-Discrimination Act. Ms Anderson's submission would be correct were we dealing with a complaint under the Racial Discrimination Act 1975 (Cth) because that Act, in keeping with Article 1.2 of the International Convention on the elimination of all forms of Racial Discrimination which stipulates that the Convention does not apply to distinctions between citizens and non-citizens, does not prohibit discrimination on the ground of "nationality". 77 The STA and the SRA discriminated against the applicants on the ground of their race (in this case, their nationality) in the terms upon which they were provided with public transport services because they were charged higher fares than similarly placed people of Australian nationality. In the absence any statutory defence, both transport authorities have contravened s 19 of the Act. The defence of statutory authority 78 The respondents have raised two statutory defences. First, the respondents argued that even if the practice of denying "full fee paying overseas students" access to concessional travel was found to constitute discrimination on the ground of race, that conduct was lawful because it was performed pursuant to statutory authority. Section 54 of the Act creates a defence of statutory authority to a complaint of unlawful discrimination. The relevant parts of that section are as follows: (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act. 79 The respondents raised two overlapping arguments which rely upon the defence of statutory authority under s 54. First, the STA and the SRA contend that they acted as they did because they were required by s 88 of the Transport Administration Act to comply with a determination made by the Minister concerning eligibility for concessional travel. Those respondents claim that they could not issue the applicants with a concessional pass unless the Minister had made a determination pursuant to s 88(1) that the applicants belonged to a class of persons who were entitled to concessional travel. Secondly, the STA and the SRA contended that because various regulations (cl 8 Rail Safety Regulation 1999, cl 5 Rail Safety (General) Regulation 2003, cl 26 Passenger Transport (Bus Services) Regulation 2000) make it an offence to travel on public transport without a valid ticket, both of those transport authorities were obliged to comply with the determination made by the Minister that "full fee paying overseas students" such as the applicants were not entitled to concessional travel. 80 Neither argument is persuasive because the key words in s 54 are "necessary… in order to comply with a requirement". The strictures of the defence of statutory authority have not been met in this case because it was not necessary for the STA and the SRA to act as they did in order to comply with a requirement of another Act, or a valid instrument made under another Act. The STA and the SRA acted as they did because they were complying with a determination made by the Minister pursuant to a discretionary statutory power. The Minister cannot use his or her discretionary powers in the Transport Administration Act to circumvent the obligations placed upon service providers by the Anti-Discrimination Act. 81 Both the High Court and the House of Lords have considered the defence of statutory authority in anti-discrimination proceedings. A statutory provision which was very similar to s 54 was considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349. In that case numerous individuals and organisations lodged complaints of discrimination on the ground of disability against a Victorian public transport authority. The complaints, which were lodged under Victorian anti-discrimination legislation, concerned proposed changes to the manner in which public transport services would be operated in Melbourne, most particularly the removal of conductors and the introduction of a new ticketing system. Section 39 of the Equal Opportunity Act 1984 (Vic) provided a defence of statutory authority. The relevant parts of the Victorian section contained similar wording to s 54 of the NSW Act. Section 31 of the Transport Act 1983 (Vic) stipulated that the Public Transport Corporation was obliged to comply with the directions of the relevant Minister and Director-General. The Public Transport Corporation raised the defence of statutory authority by claiming it was merely complying with the directions of the Minister concerning the manner in which public transport services should operate. 82 All seven members of the High Court rejected the notion that the defence of statutory authority was made out in Waters. Mason CJ and Gaudron J commented at some length upon the difficulties which would arise if the defence of statutory authority was able to encompass the situation which arose in that case, and in this one, where a respondent to a claim of unlawful discrimination seeks to avoid liability for an act of discrimination by asserting that it was following a direction made by a Minister pursuant to a general statutory power to regulate a particular activity or enterprise. They stated (at pp 369-370): More importantly, the wide construction seems to us to be inconsistent with the general scheme of the Act. It is one thing to provide that the Act should give way to an express direction contained in an actual provision of another Act or in a statutory instrument. It is a quite different thing to provide, in effect, that the Act shall give way to any subordinate direction, no matter how informal, to which a provision of any other Act requires obedience. In that regard, it would seem inevitable that, if the wide construction is given to the words "necessary…in order to comply with a provision of…any other Act" for the purposes of s 39(e)(ii), a correspondingly wide construction should be given to the words "necessary…in order to comply with a provision of…an instrument" for the purposes of s 39(e)(iii). In a context where, prerogative aside, the Crown ordinarily acts through employees or agents exercising statutory powers, the result would be that the express provision in s 5 that the Act binds the Crown would become almost illusory and the effect of the Act would be to confer an unfair advantage upon some Crown commercial instrumentalities, such as the Corporation, vis a vis, any private competitor lacking comparable immunity. Indeed, if the Corporation's argument be correct, it is difficult to see why the Director-General, an officer not directly responsible to the Victorian Parliament, could not validly give a direction to the Corporation and to the Roads Corporation requiring each of them to exercise its powers and discharge its duties without paying any regard at all to any of the provisions of the Act. Moreover, the undermining of the general scheme of the Act would not be confined to the case where a statutory provision authorizes the giving of directions to those in the service of the Crown. It would extend to any case where an Act or statutory instrument required that one person act in accordance with the directions of another. 83 When making comments in a similar vein McHugh J referred to a case which had arisen under s 54 of the Anti-Discrimination Act (Clinch v Commissioner of Police (1984) EOC 92-1115) and recorded his agreement with the conclusion reached by the Equal Opportunity Tribunal in that case that the "protective cloak" of s 54 arose only when the requirements of another Act were "mandatory and specific". He then went on to consider the defence of statutory authority when the respondent relied upon directions given in accordance with the provisions of another Act. McHugh J concluded that the Minister's direction to the Public Transport Corporation was beyond power (at pp 413-414): The power of the Minister to give directions under s 31(1) is subject to the operation of the general law. By the general law, I mean the body of common law and equitable rules which are supplemented or amended by statutes and regulations and other instruments having the force of law. Section 31(1), therefore, would not authorize a direction that the Corporation commit a crime or tort or breach a contract or by-law. Nor would it authorize a direction that the Corporation commit a breach of a statute such as the Act. These propositions, though not directly expressed in the Transport Act, are self-evident. They are self-evident because, under a government of laws and not of men and women, it is axiomatic that, in the absence of express words or necessary intendment, Parliament does not intend the recipient of the power to authorize a Minister, statutory body or government official to break the general law of the land…Consequently, in my opinion, Parliament cannot be taken to have authorized the Minister to give directions to the Corporation to perform acts which but for the directions would be a breach of the Act. The present case is altogether different from one where the Minister has a statutory duty to give the direction. The direction of the Minister, therefore, was not authorized by the Transport Act. No act done pursuant to it is exempted by s 39(e)(ii). 84 In Hampson v Department of Education and Science [1991] 1 AC 171 the House of Lords took a similar approach to the defence of statutory authority under the Race Relations Act 1976. The reasoning in that case, like the reasoning in Waters, leads to the conclusion that the wording of s 54 of the Act, when interpreted both literally and in accordance with the principle of legality, requires parliament to mandate that particular conduct occur, or to authorise the holder of a discretionary statutory power to exercise that power in a way which is contrary to the prohibitions in the Anti-Discrimination Act, before the defence of statutory authority may be made out. In Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93 at [79] the Tribunal gave examples of the limited circumstances in which the s 54 defence may be relied upon. The examples given were the statutory dictates in the Liquor Act 1982 and the Public Health Act 1991 that alcohol and cigarettes not be sold to people under the age of 18. These provisions provide a defence of statutory authority in a complaint of discrimination on the ground of age because they are both mandatory and specific. The decision in that case was subsequently upheld in the Supreme Court (Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268). 85 In this case there is no statutory provision which stipulates that "full fee paying overseas students" are not eligible for concessional travel on public transport and neither is there a provision which authorises the Minister to ignore the prohibitions contained in the Anti-Discrimination Act when exercising his or her discretionary powers under the Transport Administration Act. Section 88(1) provides that the "Minister may determine the classes of persons who are entitled to be issued with a free travel pass or a concessional travel pass". The Minister also has broad general powers to direct the operations of the STA (s 29 Transport Administration Act) and the SRA (Schedule 8, cl 9 Transport Administration Act). All of those powers must be exercised subject to the operation of laws of general application. The Minister could not use this power to determine that similarly placed men but not women are entitled to concessional travel or that similarly placed Irish but not British people are entitled to concessional travel. The Minister cannot use this power to determine that university students of Australian nationality are eligible for concessional travel but that similarly placed "full fee paying overseas students" are not eligible for this concession. 86 In advancing the defence of statutory authority the respondents have also sought to rely upon the various public transport regulations referred to in paragraph [79]. The relevant clauses in these regulations render it an offence for a person to travel on public transport without holding a valid ticket. It is also an offence for a person to travel on public transport with a concession ticket which that person is not entitled to hold. These provisions do not activate a defence of statutory authority because they are not mandatory and specific provisions which direct the STA and the SRA not to provide concessional travel to "full fee paying overseas students". They are laws of general application, directed to the public at large, which stipulate that people must not travel on public transport without a valid ticket. 87 The defence of statutory authority has not been made out in this case. The special needs defence 88 The respondents raised a second statutory defence. In paragraph 3(viii) of their Points of Defence the respondents indicated that they sought to rely upon the 'special needs defence' in s 21 of the Act. If an activity falls within s 21 it is an exception to those parts of the Act which render it unlawful to discriminate on the ground of race. Section 21 states: Nothing in this Part applies to or in respect of anything done in affording persons of a particular race access to facilities, services or opportunities to meet their special needs or to promote equal or improved access for them to facilities, services and opportunities. 89 The clear intent of s 21 is to permit what is often referred to as affirmative action in order to meet the special needs of people of a particular race, or to assist people of a particular race to overcome past and present disadvantage. Obvious examples of activities which would appear to fall within s 21 are special health and legal services for Indigenous Australians and programs of special entry to medical and law schools for Indigenous Australians. 90 It does not appear that s 21 has been considered in any previous cases. There is a broadly equivalent provision in s 8(1) of the Racial Discrimination Act 1975. Section 7D of the Sex Discrimination Act 1984 is similar because it permits special measures which are designed to achieve equality between men and women. It is important to note that the wording in all three statutory provisions is different and that the principles which govern a case arising under s 8(1) of the Racial Discrimination Act 1975 or s 7D of the Sex Discrimination Act 1984 may not be applicable in a case under s 21 of the Anti-Discrimination Act. There is, however, one important point of commonality. Evidence is needed of the fact that the person who seeks to rely on the special needs or measures provision acted on the basis of evidence that the particular group which is being assisted by the special measure has special needs or suffers from disadvantage. 91 In Gerhardy v Brown (1985) 159 CLR 70, which concerned s 8(1) of the Racial Discrimination Act 1975, the members of the High Court acknowledged that they could take judicial notice of the disadvantage suffered by indigenous Australians. The Court also derived factual support for its conclusion that the case fell within the special measures provision because there was a specially prepared governmental report concerning the needs of the Indigenous people in question. As Brennan J pointed out (at p 137): To determine whether the measure in question is intended to remove and is necessary to remove inequality in fact (as distinct from formal inequality), the circumstances affecting the political, economic, social, cultural and other aspects of the lives of the disadvantaged group must be known and an opinion must be formed as to whether the measure is necessary and likely to be effective to improve those circumstances. The objective circumstances affecting the disadvantaged group are matters of fact, capable of ascertainment albeit with difficulty. 92 In Jacomb v Australian Municipal Administrative Clerical and Services Union (2004) 140 FCR 149, which concerned s 7D of the Sex Discrimination Act 1984, Crennan J made findings of fact about the state of mind of the party seeking to rely on the special measures provision and the quality of the evidence which caused it to believe that special measures were needed. 93 In order for the respondents in this case to successfully argue that their activities fell within s 21 there would need to be evidence of their state of mind in acting as they did and evidence of the special needs of people of the particular race, or evidence of the fact that people of the particular race did not enjoy equal access to the facilities, services or opportunities in question. By virtue of s 104 of the Act the respondents bear the burden of proving that their activities fall within the exception provided by s 21. 94 In this case we have found that the policy of denying "full fee paying overseas students" concessional travel on public transport discriminated against the applicants on the ground of their nationality because they were treated less favourably, on the ground of their nationality, than people of another nationality, namely Australians, in the same or similar circumstances. For s 21 to apply it would be necessary for the respondents to prove that this practice was followed to cater for the special needs of people of Australian nationality, or to assist people of Australian nationality to overcome past and present disadvantage. There was no evidence of any of these matters. The respondents' reliance on s 21 appears to have been misplaced. Presumably the practice in question was justified on the basis that the taxpayers of NSW ultimately paid for concessional travel because s 88(5) of the Transport Administration Act stipulated that the public transport authorities were to receive recompense from consolidated revenue for the moneys foregone by providing various categories of people with concessional travel. That does not bring this case within s 21 of the Anti-Discrimination Act. There is no substance to the claim that the special needs defence applies in this case. The liability of the Minister and the Director General 95 The third and fourth respondents, the STA and the SRA, are principally liable for the contraventions of s 19 of the Act in that they, as providers of public transport services, discriminated against the applicants on the ground of their nationality in the terms upon which those services were provided because they charged them higher fares than a person of Australian nationality would have been required to pay. Both the first and second respondents, the Minister and the Director General, are also liable by virtue of the operations of s 52 of the Act. 96 Section 52 provides as follows: It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act. 97 Section 52 extends liability for acts of unlawful discrimination beyond those people who have a primary statutory obligation not to engage in discriminatory conduct - in this case, the providers of public transport services - to other people who contribute to the principal wrongdoers' acts of discrimination in one of the ways described in the section. In this case it may be said that the Minister both caused and instructed the STA and the SRA to contravene s 19 of the Act and that the Director General aided the STA and the SRA in their contravention of the Act. A simple shorthand term for s 52 is that it establishes the notion of contributory liability. 98 A similar issue arose in Waters where it was claimed that the Minister was liable for any acts of unlawful discrimination committed by the Public Transport Corporation. Whilst the wording of the relevant provisions in the legislation which governed that case, the Equal Opportunity Act 1984 (Vic), was not precisely the same as the language used in the Anti-Discrimination Act, the relevant provisions in the Victorian statute were of similar effect to those in the NSW Act. McHugh J explained (at p 412) how the Minister could be held liable for the actions of the Public Transport Corporation: While the Minister is not himself a person providing goods and services and does not fall within the ambit of s 29(1), he is deemed to have committed an unlawful discriminatory act in directing the Corporation if the Corporation is guilty of a contravention of s 29 of the Act. This conclusion is the result of s 5 which provides that the Act is intended to bind the Crown and s 35 which provides that where one person counsels, requests, demands or procures another person to act and that person does act in contravention of the Act, both persons shall be jointly and severally liable under the Act in respect of the contravention. If the discriminatory act of the Corporation is unlawful, it is jointly and severally the unlawful act of the Minister. 99 Before s 52 may operate there must be an unlawful act by a principal wrongdoer because in the absence of a principal wrong there is no capacity for a person to be liable as a contributor. This point was emphasised by the Tribunal in Dixon v RNJ Sicame Pty Ltd [2002] NSWADT 154 and by Madgwick J in Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481 when considering s 122 of the Disability Discrimination Act 1992 (Cth) which is the equivalent contributory liability provision in that legislation. This pre-condition to the use of s 52 is met because we have found that both the STA and the SRA contravened s 19 of the Act. 100 The words used in s 52 to describe various modes of contributing to an unlawful act by a principal wrongdoer should be given their ordinary meaning. There is no dispute in this case that the STA and the SRA did not permit "full fee paying overseas students" to enjoy concessional travel on the public transport services which they operated because of a determination made by the Minister pursuant to s 88(1) of the Transport Administration Act. Both the STA and the SRA also contend, quite correctly, that they were obliged, albeit indirectly, by s 88(2) of the Transport Administration Act to comply with the determination made by the Minister pursuant to s 88(1). Giving those words their ordinary meaning, these are circumstances in which the Minister both "caused" and "instructed" the STA and the SRA to do acts which have been found to contravene s 19 of the Anti-Discrimination Act. 101 There is no dispute in this case that the Director General acted in accordance with s 39 of the Transport Administration Act which required him to "administer, or arrange for the administration of, any scheme approved by the Minister for Government subsidised travel on passenger services". The evidence discloses that the Director General was the conduit between the Minister and the actual providers of public transport services, the STA and the SRA. Giving that word its ordinary meaning, these are circumstances in which the Director General "aided" the STA and the SRA to do acts which have been found to contravene s 19 of the Anti-Discrimination Act. 102 In light of these findings it is unnecessary for us to separately consider whether the Minister and the Director General contravened s 19 of the Act in their capacities as providers of the services described in paragraph [38]. Decision and orders 103 The decision of the Tribunal is that each of the three complaints is substantiated against all four respondents. Following agreement between counsel for the parties the Tribunal was asked to reach a decision on the question of liability before considering remedies. 104 The applicants will now need to give proper notice of the remedies which they seek. The manner of dealing with evidence and submissions concerning remedies also requires consideration. At this stage only one order of a procedural nature is necessary in each of the three complaints: 1. SUPRA v Minister for Transport Services & ors (file no 041012) Matter to be listed for case conference on a date to be fixed by the Registrar. 2. Bravo Nuevo v Minister for Transport Services &ors (file no 041013) Matter to be listed for case conference on a date to be fixed by the Registrar. 3. Martinez Neira v Minister for Transport Services & ors (file no 041014) Matter to be listed for case conference on a date to be fixed by the Registrar.

Sydney University Postgraduate Representative Association (SUPRA) & ors v Minister for Transport Services & ors

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