I W v CITY OF PERTH & OTHERS

(1997) 191 CLR 1

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(Judgment by: Dawson, Gaudron JJ)

I W v CITY OF PERTH & OTHERS

Court:

Judges: Brennan CJ, McHugh

Dawson, GaudronToohey
Gummow
Kirby JJ

Subject References:
ANTI-DISCRIMINATION LAW
Direct discrimination
Discrimination on ground of impairment
Discrimination in provision of services
Refusal of planning approval for drop-in centre for people with HIV/AIDS
Application made by incorporated association of which appellant was a member
Meaning of "services" in s 4(1) of Equal Opportunity Act 1984 (WA)
Whether refusal of planning approval by Council was a refusal to provide "services"
Whether appellant an "aggrieved person"
Identification of notional person with whom aggrieved person is to be compared in determining whether discriminatory treatment
Whether refusal was "on the ground of" impairment.
LOCAL GOVERNMENT
Nature of test to determine ground of decision made by a decision-making body
Whether councillors personally liable for causing or aiding act of discrimination.

Legislative References:
Equal Opportunity Act 1984 (WA) - ss 4(1); 66A(1); 66K(1); 160
Local Government Act 1960 (WA) - s 680

Judgment date: 31 JULY 1997

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Judgment by:
Dawson, Gaudron JJ

The appellant, IW, is and at all relevant times has been a member of People Living with AIDS (WA) Inc ("PLWA"). Membership of that organisation is confined to people who are HIV positive. In January 1990, PLWA sought planning approval from the first respondent, the City of Perth, for the use of certain premises as a daytime drop-in centre for persons infected with or affected by HIV.

The City of Perth is a body corporate constituted pursuant to the Local Government Act 1960 (WA) ("the Local Government Act") ^[F33] . Its Council ("the Council") is and was, in 1990, responsible for the administration and enforcement of the City of Perth City Planning Scheme ("the Planning Scheme") ^[F34] . It was pursuant to the Planning Scheme ^[F35] that PLWA sought approval for its drop-in centre. Subject to a qualification that is not presently relevant ^[F36] , s 173(8)(b) of the Local Government Act provided for decisions of the Council to be taken by "a majority of the valid votes of the members ... present at [a] meeting". And by s 8A of the Town Planning and Development Act 1928 (WA), appeals could be taken from decisions of the Council under the Planning Scheme to the Minister for Planning.

PLWA's application for planning approval came before the Council on 19 March 1990. It was moved that the application be approved for a trial period of 12 months ("the motion"). The motion was lost 13 votes to 12, with one member of Council, Councillor Nattrass, abstaining. On 21 March, PLWA appealed to the Minister and, on 6 April, the appeal was allowed and the application approved.

History of the Proceedings

Notwithstanding the Minister's grant of planning approval, PLWA brought discrimination proceedings in the Equal Opportunity Tribunal ("the Tribunal") against the first respondent (the City of Perth), the thirteen Councillors who voted against the motion and Councillor Nattrass who spoke in relation to the motion but who, as already noted, abstained from voting. As well, certain individual members of PLWA ("the individual complainants"), one of whom was the appellant, instituted proceedings against the same parties.

It was alleged by PLWA and by the individual complainants that the City of Perth discriminated against them contrary to s 66K(1) of the Equal Opportunity Act 1984 (WA) ("the Act"). It will later be necessary to refer to the precise terms of that sub-section. For the moment, however, it is sufficient to note that it proscribes discrimination on the ground of impairment in the provision of goods and services.

PLWA's complaint was amended at an early stage by substituting the name of one of its members for that of PLWA. The matter then proceeded before the Tribunal on that complaint, as a representative complaint, and, except for one which was held to have abated, on the complaints of the individual complainants. The complaints were upheld against the City of Perth and against six of its Councillors, including Councillor Nattrass (together referred to as "the respondents"). However, the Tribunal dismissed the complaints against other members of Council, it being held that they did not vote against the motion on grounds related to the HIV status of PLWA's members.

So far as concerns the six Councillors against whom the complaints were upheld, the Tribunal found that, by voting against the motion on grounds related to the HIV status of PLWA's members and, in the case of Councillor Nattrass, by raising those grounds in speaking on the motion, they, respectively, caused and aided an act of discrimination. By s 160 of the Act they were, thus, to be taken as, themselves, having committed that act ^[F37] . They and the City of Perth were ordered to pay damages by way of compensation pursuant to s 127(b)(i) of the Act ^[F38] .

The respondents appealed unsuccessfully to the Supreme Court of Western Australia pursuant to s 134 of the Act ^[F39] . They then appealed to the Full Court. Their appeal to that Court was allowed and the orders of the Tribunal set aside ^[F40] . The appellant now appeals to this Court.

The Legislative Provisions

As already indicated, the complaints alleged discrimination by the first respondent contrary to s 66K(1) of the Act. That sub-section provides:

"It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's impairment-

(a)

by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b)

in the terms or conditions on which the first- mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)

in the manner in which the first- mentioned person provides the other person with those goods or services or makes those facilities available to the other person."

It is necessary to note the statutory definition of "services" and the statutory concept of "discrimination". "[S]ervices" is defined in s 4(1) of the Act, unless the contrary intention appears, to include:

"(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 the kind provided by members of any profession or trade; and

(e)

services of the kind provided by a government, a government or public authority or a local government body".

So far as concerns the statutory concept of "discrimination", the Act proceeds by reference to two apparently separate notions, namely, "direct" and "indirect" discrimination. The complaints in this case were complaints of direct discrimination which, so far as concerns discrimination on the ground of impairment, is defined in s 66A(1) in these terms:

"For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if, on the ground of-

(a)

the impairment of the aggrieved person;

(b)

a characteristic that appertains generally to persons having the same impairment as the aggrieved person;

(c)

a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or

(d)

a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,

the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment."

The concept of "circumstances that are not materially different" is elaborated in s 66A(2). Nothing presently turns on the terms of that sub-section. "[I]mpairment" is defined in s 4(1) to mean, amongst other things, "any defect or disturbance in the normal structure or functioning of a person's body".

One other matter should be noted. The notion of discrimination on the ground of impairment was extended in 1993 with the insertion in the Act of s 66A(1a) ^[F41] . The effect of that sub-section is to extend the definition to include discrimination on the ground of the impairment of "any relative or associate of [an] aggrieved person". As the events involved in this case occurred in 1990, s 66A(1a) has no bearing on its outcome.

The issues in the Appeal

It is not in issue that HIV infection falls within the definition of "impairment" in s 4(1) of the Act. And the proceedings have been conducted on the basis that the first respondent discriminated against the appellant by refusing planning approval and not in any other way. Moreover, they have been conducted on the basis that, in terms of s 66K(1)(a), that refusal constituted a refusal "to provide [him] with ... services". On that basis, the question whether the appellant was the subject of unlawful discrimination involves four distinct issues. They are:

(i)

whether refusal of planning approval was a refusal to provide services contrary to s 66K(1)(a) of the Act ^[F42] ;

(ii)

whether refusal of planning approval to PLWA constituted an act of discrimination against the appellant, IW, such that he is an "aggrieved person" for the purposes of s 66A(1) of the Act ^[F43] ;

(iii)

whether, in terms of s 66A(1), the first respondent treated the appellant "less favourably than in the same circumstances, or in circumstances that are not materially different, [it] treat[ed] or would treat a person who [is not infected with HIV]". In this regard, the issue is the proper identification of the person or persons with whom an "aggrieved person" is to be compared ^[F44] ;

(iv)

whether, given that five only of the Councillors voted against the motion on grounds related to the HIV status of PLWA's members, the first respondent's refusal to grant planning approval was a refusal "on the ground of" their HIV status ^[F45] .

We are of the view that the appellant fails on the first and second issues. It is, thus, unnecessary to deal with the third and fourth issues. Similarly, it is unnecessary to deal with another matter raised in argument, namely, whether, in view of s 680 of the Local Government Act ^[F46] , the Councillors against whom adverse findings were made by the Tribunal can be made personally liable under s 160 of the Act ^[F47] .

Refusal to provide "services"

In construing legislation designed to protect basic human rights and dignity, the courts "have a special responsibility to take account of and give effect to [its] purpose" ^[F48] . For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, including s 66K(1), should be construed as widely as their terms permit. In particular, "services", a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context.

Although s 4(1) of the Act purports to define "services", it does so by use of the word apparently defined. And it does so by indicating what is included in the definition, not what is excluded. As the matters included in the definition are all matters which fall within the ordinary notion of "services", the definition is to be taken as signifying everything which falls within that notion. And as neither the terms of s 66K(1) nor its context provides any contrary indication, "services" should be read in that sub-section as having its ordinary and broad meaning.

The need for "services" to be construed as having its ordinary broad meaning is, to some extent, confirmed by decisions given with respect to anti-discrimination legislation in the United Kingdom - legislation on which the Act and similar anti-discrimination legislation in other Australian states is largely based. Thus, it has been held that, in its proscription of discrimination in the provision of services, the Race Relations Act 1976 (UK) extends to "the provision, dissemination and implementation of regulations" by the Board of Inland Revenue ^[F49] . It has also been held to extend to "those parts of a police officer's duties involving assistance to or protection of members of the public." ^[F50] On the other hand, it has been held, in the context of the Sex Discrimination Act 1975 (UK), that in administering the Immigration Act 1971 (UK) and the Immigration Rules, the Secretary of State does not provide facilities to a section of the public ^[F51] . Similarly, it was held in R v. Entry Clearance Officer; Ex parte Amin that, in granting immigration vouchers, an entry clearance officer was "not providing a service for would-be immigrants; rather he was performing his duty of controlling them." ^[F52]

The word "services", in its ordinary meaning, is apt to include the administration and enforcement by the City of Perth of the Planning Scheme. That being so, the Tribunal was correct in holding that "in administering a town planning scheme ..., regulating the use of land ..., securing provision for traffic ..., and generally implementing or enforcing measures directed to the amenity of the area, ... the City of Perth [was] providing a service to residents."

The Tribunal proceeded from its decision that, in administering and enforcing the Planning Scheme, the first respondent was providing a service to residents to the conclusion that "the exercise of a discretion to give planning approval ... is part of that service and is itself a 'service' within the meaning of s 4(1) of the Act." It followed from that conclusion that refusal of planning approval was a refusal to provide services for the purposes of s 66K(1)(a) of the Act. However, the Tribunal's intermediate conclusion that "the exercise of a discretion to give planning approval ... is itself a 'service' within the meaning of s 4(1) of the Act" involves a false description of the discretion vested in the first respondent. The discretion is not simply a discretion to grant approval. Rather, it is a discretion to grant or withhold approval ^[F53] .

Within the context of s 66K(1), a person who provides a service by exercising a discretion to grant or withhold approval may discriminate against a person in the exercise of that discretion by refusing to exercise it at all (par (a)), by imposing terms and conditions (par (b)), or by exercising it in a particular manner (par (c)). Subject to the question whether the appellant is an aggrieved person, it may be that a case can be made that, in refusing PLWA's application, the City of Perth exercised its discretion in a discriminatory manner and, thus, infringed s 66K(1)(c) of the Act. The Points of Claim lodged with the Tribunal asserted such a case. However, it was not dealt with by the Tribunal or in the subsequent appeals.

The appellant's argument that the first respondent's refusal of planning approval was a refusal to provide a service cannot be sustained. Once the service in issue is identified as the exercise of a discretion to grant or withhold planning approval, a case of refusal to provide that service is not established simply by showing that there was a refusal of planning approval. Rather, it is necessary to show a refusal to consider whether or not approval should be granted. And that case is foreclosed by the very matter of which the appellant complains, namely, the Council's refusal to grant approval.

Meaning of "aggrieved person"

We agree with Gummow J that the appellant is not an "aggrieved person" for the purposes of s 66A(1) of the Act. In considering whether the appellant is an "aggrieved person", it is necessary to have regard to the structure of the Act generally and, also, that of Pt IVA, the provisions of which deal with discrimination on the ground of impairment. In that exercise, s 66A(1a), which was inserted with effect from 8 January 1993, can be disregarded.

The Act, in its several Parts, proscribes direct and indirect discrimination on specified grounds, including sex (Pt II), race (Pt III), religious or political conviction (Pt IV) and impairment (Pt IVA). Subject to specified exceptions, it operates, in each Part, by proscribing discrimination in certain fields, including employment, education and the provision of goods, services and facilities. The proscriptions are effected in each Part by proscribing specified discriminatory conduct by one person or body, usually identified by occupation, undertaking or business activity, against another.

The general pattern of the Act is reflected in Pt IVA. As already indicated, s 66A defines discrimination on the ground of impairment: s 66A(1) defines it by reference to direct discrimination, with some further elaboration in sub-s (2); s 66A(3) defines indirect discrimination. In ss 66A(1) and (3), the person discriminated against is referred to as the "aggrieved person". A special definition of discrimination against the "blind, deaf, partially blind or partially deaf" is contained in s 66A(4). Again, the person discriminated against is referred to as the "aggrieved person". Succeeding provisions proscribe acts of discrimination in various fields of activity, including employment (s 66B), education (s 66I) and the provision of goods, services and facilities (s 66K).

As with other Parts of the Act, the proscriptions of discriminatory conduct are effected in Pt IVA by rendering unlawful specified discriminatory acts by one person or body against another. Thus, it is unlawful "for an employer to discriminate against a person on the ground of the person's impairment" by engaging in conduct falling within s 66B of the Act. Similarly, it is unlawful for a "principal" to discriminate against a "commission agent" or a "contract worker" by conduct falling within ss 66C and 66D respectively. So too, it is unlawful for partnerships, trade unions and employer organisations, qualifying bodies, and employment agencies to discriminate "against a person on the ground of the person's impairment" in the respects specified, respectively, in ss 66E, 66F, 66G and 66H. The pattern is repeated in ss 66I, 66J, 66K, 66L, 66M, 66N and 66P.

It is clear from the structure of the Act generally and, also, from the structure of Pt IVA, that an "aggrieved person" is a person who is discriminated against in a manner which the Act renders unlawful. And when regard is had to the precise terms of s 66K(1), it is clear that the person discriminated against is the person who is refused services, or who is provided with services on terms or conditions or in a manner that is discriminatory. As already indicated, there was no refusal of services in this case. And if anyone was the recipient of treatment which might constitute discrimination, it was PLWA, not the appellant. Accordingly, the appellant was not an "aggrieved person" within the meaning of that

expression in s 66A(1) of the Act. And that being so, he is in no position to assert that the City of Perth engaged in unlawful discrimination in the exercise of its discretion to grant or withhold planning approval for PLWA's drop-in centre.

The appeal must be dismissed with costs.