Waters v Public Transport Corp

Waters v Public Transport Corp - [1991] HCA 49 - HCA 1991 case summary — Zoe

[10]

However, before leaving this aspect of the case, reference should be made to s. 29(2)(a), which suggests that the category of discriminatory conduct proscribed by s. 29(1)(a) includes a refusal to perform a service "in a special manner" required by another person "in consequence of [that other] person's impairment". Although this provision suggests that there may be a discriminatory refusal of service by a refusal to perform it in a "special manner", in terms it distinguishes between a service and the manner in which it is performed. It cannot be construed as importing a duty to provide impaired persons with services not available to non-impaired persons. Construing s. 29(1)(a) and s. 29(1)(b) together, it seems to me that, where the availability of the service to impaired persons depends on the manner in which it is performed (as distinct from the performance of an additional service) and the service can reasonably be performed in a manner which would make the service practically available to impaired persons who require a special manner of performance, it is unlawful to refuse to perform the service in that manner. Obviously, there may be fine distinctions to be made between an additional service performed only for a class which needs it and the manner in which a particular service can reasonably be performed in order to make that service available to that class. Thus, it may be unlawful discrimination falling within s. 29(1)(a) for the Corporation to refuse to permit trams to stop near a school for the blind (a special manner of "performing" the general tram service) because that would amount to a refusal of the service to blind children attending the school, though s. 29(1)(a) does not make it unlawful to withdraw the further service of escorting blind children to the footpath. Whatever the true distinction between a service and a special manner of performing it may be, it cannot be said that the provision of staff to assist the disabled to use the general tram service is merely a special manner of "performing" the general tram service: the provision of such assistance is an additional or enhanced service.

[86]

The view expressed by Phillips J. that there was no evidence to support the Board's conclusion cannot, we think, be sustained. And even if there were no evidence in any technical sense, that would not of itself necessarily convert any error on the part of the Board into an error of law. Under s. 51 of the Act the Board is required to "act fairly and according to the substantial merits of the case and, except insofar as it otherwise determines, is not bound by the rules of evidence or by practices and procedures applicable to courts of record". The Board was, therefore, free to reach its conclusions upon matters of fact as it saw fit so long as it acted within the constraints of s. 51. Whether it was necessary for the respondent to discriminate against the appellants in implementing the Cabinet resolution was a question of fact and there was no appeal from the Board's determination of that question. However, there was in fact ample evidence, as Phillips J. recognized, that the basic MetTicket system might have been modified in a number of ways to avoid disadvantaging the appellants. Phillips J. took the view that the relevant direction required the introduction of the basic system literally and without modification but that is, we think, to read too much into the terms of the Cabinet resolution. Clearly it provided only an outline of the MetTicket system, leaving the details of the system to be worked out by the respondent. There was evidence that those details, which were relevant to the introduction of the scratch tickets and to the removal of conductors from trams and not just to the day-to-day operation of the MetTicket system, could have been resolved in such a way as to accommodate the appellants' disabilities. Moreover, it is proper to read the obligation imposed upon the respondent by s. 31 of the Transport Act as envisaging that degree of flexibility on the part of the respondent because, under s. 14(2)(V) of the same Act, the respondent is required, in the exercise of its functions, to have regard to the achievement of a number of objectives, including the object of identifying "the transport needs of disadvantaged groups, particularly people with disabilities" and of implementing "appropriate services within the level of funds specifically provided for this purpose by Government".

[121]

The words "on the ground of the status or by reason of the private life of the other person" in s. 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in Reg. v. Birmingham City Council; Ex parte Equal Opportunities Commission [37] , and the statements of Deane and Gaudron JJ. [38] in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator ("the discriminator") be actuated by status or private life in a provision such as s. 17(1). With great respect to Deane and Gaudron JJ., I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within s. 17(5). The words "on the ground of" and "by reason of" require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ("the victim"). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently "on the ground of" status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then "the ground of" the act of the discriminator was the status or private life of the victim [39] . But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted "on the ground of the status or by reason of the private life" of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v. Breen [40] , the Court of Appeal of New South Wales held that the Director-General had not acted "on the ground of sex" in selecting principals for non-secondary schools from a primary school promotions list rather than an infants school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to s. 17(5). At the relevant time, however, the Anti-Discrimination Act had no such equivalent.

[138]

The Corporation concedes that it is a provider of goods and services within the meaning of s. 29(1). The term "services" is defined in s. 4(1) to include services connected with transportation. The Board made no express finding as to what services were provided by the Corporation. The Board appears, however, to have acted on the basis that the services provided were that of "the public transport system". Phillips J. said that the identification of the "services" which were provided was essentially a question of fact for the Board. I cannot accept, however, that the Board's identification of the relevant services in this case was open to it as a matter of law. It is true that the identification of the relevant services is a question of fact. But the hypothesis upon which s. 29 operates is that there exists a person who provides goods or services and that that person has discriminated against the complainant in one of the ways set out in s. 29(1)(a) and (b). 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. On the other hand, if it was alleged that the physically impaired were discriminated against because they were not given sufficient time to become seated on trams, the relevant description of the service might not be sufficiently precise unless a description of the trams was incorporated into a description of the services. Likewise, if a person is alleged to have imposed on another person a "requirement or condition" in respect of using services, the services provided must be identified with sufficient precision to enable the Board to relate the requirement or condition to those services and to determine the issues raised by s. 17(5) of the Act. As will appear, the line between what is a "requirement or condition" of using services and the services themselves is often a fine one calling for an exact description of the services provided.

[158]

As I earlier pointed out, s. 17(1) and (5) deal with mutually exclusive subject matters - s. 17(1) with direct discrimination and s. 17(5) with indirect discrimination. What constitutes discrimination is to be found by applying the criteria specified in s. 17. Cases of indirect discrimination are to be determined by applying the criteria in s. 17(5) uninfluenced by the language of s. 17(1) or any general concept of discrimination. Whether "the requirement or condition is not reasonable" (s. 17(5)(c)) does not depend on the notion that the purpose of the term "reasonable" is to limit some general concept of discrimination which exists independently of s. 17(5). The reasonableness of the "requirement or condition" is itself part of the definition of discrimination in situations falling within s. 17(5). That sub-section deals with situations where a person has not directly treated the complainant less favourably than that person treats or would treat another person. In those situations, the act of a person will be held to be discrimination if the conditions specified in pars (a), (b) and (c) of s. 17(5) are satisfied. Section 17(5) is a deeming provision, and what falls within it is discrimination for the purposes of the Act even though it is not discrimination within the meaning of s. 17(1) or discrimination in the sense that that term would be understood in a context outside this Act. That being so, arguments based on any concept of discrimination existing outside the statutory definition contained in s. 17(5) are not legitimate aids to the construction of the term "reasonable" in s. 17(5)(c). What has been said in cases like Castlemaine Tooheys, therefore, has no application to s. 17 of the Act. Likewise, arguments based on Griggs v. Duke Power Co. [46] and similar authorities in the United States of America are not legitimate aids in interpreting s. 17(5) because those authorities do not deal with the term "discriminate" as it is defined in s. 17(5) or for that matter in s. 17(1).

[173]

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. The argument for the Corporation did not contest the truth of these propositions. But it contended that regard had to be given to s. 39(e)(ii) in determining whether the Minister could lawfully give a direction to the Corporation to do that which, because of the Act, the Corporation could not otherwise do of its own initiative. In other words, the Corporation contended that, since s. 39(e)(ii) took an act outside the operation of the Act if it was necessarily done in order to comply with a provision of another Act, nothing in the Act made the direction of the Minister unlawful. This argument is not without force. But in the end the question is whether, in enacting s. 31(1), Parliament intended that the Minister could give directions which had the effect of converting an otherwise unlawful act of the Corporation into a lawful act. Now, as I have said, it is axiomatic that, in conferring a power such as s. 31, Parliament does not intend to authorize the giving of directions to perform acts which are unlawful. It is but a short step to infer that, in the absence of a plain intention, Parliament, in conferring such a power, also does not intend the recipient of the power to authorize acts which, but for the direction, would be unlawful. And in the absence of a contrary legislative indication, it is an inference which should be drawn. 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.

[177]

Any party to proceedings before the Board may, within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party to the proceedings and on the Registrar of the Board, appeal to the Supreme Court against that order on a question of law only as if the order were an order of a Magistrates' Court and the provisions of Part XI of the Magistrates' Courts Act 1971 shall, with such adaptations as are necessary, apply accordingly. Section 88 of the Magistrates' Courts Act provided for appeal by way of order nisi within one month of the order complained of, but it did so without prejudice to such other right or remedy as may exist. The Corporation described O. 56 as another "right or remedy" within the meaning of s. 88. Consequently, the Corporation claimed that it was entitled to avail itself of O. 56 judicial review proceedings. It may be true that O. 56 is another "right or remedy" within the meaning of s. 88. But s. 49(4) does not convert an appeal under that sub-section into an order of a Magistrates Court so that the appeal is under Pt XI of the Magistrates' Courts Act. The appeal is one under s. 49(4) and must be lodged within twenty-eight days. The provisions of Pt XI of the Magistrates' Courts Act apply to that appeal "with such adaptations as are necessary". The effect of the "as if" clause in s. 49(4) was to apply the procedural machinery of Pt XI of the Magistrates' Courts Act 1971 (now repealed) to an appeal under s. 49(4) of the Act with such modifications as were necessary. The policy of s. 49(4) as discerned from its terms is that an order of the Board can be challenged only on a question of law by an appeal to the Supreme Court lodged "within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party". Any provision of Pt XI of the Magistrates' Courts Act which is inconsistent with the legislative intention revealed by that policy must necessarily be modified in its application to an order made by the Board. That means, inter alia, that those parts of s. 88 which give a right to appeal within one month of the making of an order and provide that an appeal is not without prejudice to any other "right or remedy" are not applicable to an order under the Act.

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