I W v CITY OF PERTH & OTHERS

(1997) 191 CLR 1

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(Judgment by: Gummow J)

I W v CITY OF PERTH & OTHERS

Court:

Judges: Brennan CJ, McHugh
Dawson, Gaudron
Toohey

GummowKirby 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:
Gummow J

The facts giving rise to this litigation and the course of the litigation in the Supreme Court of Western Australia are detailed in the reasons for judgment of Kirby J. I need not repeat them. However, it should be noted that the Equal Opportunity Tribunal ("the Tribunal") found that the application for the use of the premises at Walcott Street, North Perth, as a "daytime drop-in centre" for persons who were HIV positive was rejected on 19 March 1990 upon a motion lost by 13:12 votes in the council of the City of Perth ("the Council"). The application had been made by People Living with AIDS (WA) Inc ("PLWA"). This was an association incorporated under the Associations Incorporation Act 1987 (WA). An appeal to the Minister was successful and the application was approved on 6 April 1990. However, the complaints giving rise to this litigation concern the treatment of the matter by the Council.

The Tribunal found that, of the majority of 13, the votes of Councillors Scurria, Vlahos, Salpietro, David Nairn and Donald Nairn were "grounded on the AIDS factor" and that, whilst he did not vote, Councillor Nattrass "advertently" encouraged councillors to vote against the motion "because of the AIDS factor". These six councillors are the second to seventh respondents to the present appeal. The Tribunal held that the votes of Councillors Scurria, Vlahos, Salpietro, David Nairn and Donald Nairn were "causative in terms of the decision of the Council (and hence the City of Perth ['the City'] whose executive decision-making body the Council was), in that but for them that decision would not have been made".

The Tribunal is established under Pt VIII (ss 96-137) of the Equal Opportunity Act 1984 (WA) ("the Act"). The appellant obtained from it orders under s 127(b)(i) that the respondents pay to him damages by way of compensation for loss or damage suffered by reason of their conduct.

The appeal to the Supreme Court of Western Australia by the City and those councillors who are now the second to seventh respondents was dismissed by Murray J ^[F75] . Section 134 of the Act provided that the appeal was limited to questions of law. An appeal to the Full Court was allowed (Ipp, Wallwork and Scott JJ) ^[F76] .

The Act

I should begin by some reference to provisions of the Act. One of the objects of the Act, specified in s 3(a) is:

"to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, race, religious or political conviction or impairment in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs".

Section 18 of the Interpretation Act 1984 (WA) ("the Interpretation Act") requires preference to be given in the interpretation of a provision of a written law to a construction that would promote the purpose or object underlying that law over a construction that would not promote that purpose or object.

This case is concerned with discrimination on the ground of impairment. Provision with respect to this is made in Pt IVA (ss 66A-66U). Part IVA and consequential amendments were inserted by the Equal Opportunity Amendment Act 1988 (WA). Section 4(1) of the Act contains the following definition of "impairment":

"'impairment' in relation to a person, means one or more of the following conditions -

(a)

any defect or disturbance in the normal structure or functioning of a person's body;

(b)

any defect or disturbance in the normal structure or functioning of a person's brain; or

(c)

any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,

whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment which presently exists or existed in the past but has now ceased to exist."

Section 66A identifies that conduct which amounts to discrimination on the ground of impairment. Before turning to the detailed provisions of s 66A, it may be observed that "discrimination", as a matter of ordinary English, has quite distinct shades of meaning. Some of these lack the critical if not pejorative connotation the term has in human rights legislation. Thus, "discrimination" may identify the ability to observe accurately and make fine distinctions with acuity, good judgment or taste, as well as the making of unjust or prejudicial distinctions.

In Australia, discrimination is also a constitutional concept. The terms "discriminate" or "discrimination" appear in various provisions of the Constitution, notably ss 51(ii), 102 and 117. Section 117 states:

"A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."

Section 51(ii) authorises the making of laws with respect to taxation "but so as not to discriminate between States or parts of States". In Street v. Queensland Bar Association , when dealing with s 117, Gaudron J said ^[F77] :

"Although in its primary sense 'discrimination' refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is 'discrimination between'; the legal sense is 'discrimination against'."

Further, in Castlemaine Tooheys Ltd v. South Australia , a case concerned with the application of s 92 of the Constitution after Cole v. Whitfield ^[F78] , Gaudron and McHugh JJ said ^[F79] :

"A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant[ ^[F80] ] to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference, or, in other words, if it treats equally things that are unequal - unless, perhaps, there is no practical basis for differentiation."

This passage deals with species of discrimination which elsewhere have been identified as "direct" and "indirect" discrimination ^[F81] . The succinct terms by which the fundamental precepts are explained in this passage have been eschewed by legislatures when framing human rights legislation, such as the Act. Language has been employed which is both complex and obscure and productive of further disputation.

Section 66A of the Act is itself a striking example. Sub-sections (1), (2) and (3) state:

"(1) 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.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person who has an impairment are not materially different by reason of the fact that different accommodations or services may be required by the person who has an impairment.

(3) 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 the discriminator requires the aggrieved person to comply with a requirement or condition -

(a)

with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply;

(b)

which is not reasonable having regard to the circumstances of the case; and

(c)

with which the aggrieved person does not or is not able to comply."

Section 66A(1) is concerned with direct and s 66A(3) with indirect discrimination. This case is said to arise under s 66A(1).

Section 66K(1) is the other provision central to this case. It states:

"(1) 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."

There is no definition in the Act of "person" which would further identify either those whose conduct is made unlawful by s 66K(1) or those who suffer discrimination. The general definition in s 5 of the Interpretation Act indicates that "person" includes a public body which is incorporated.

The Act does not in terms deal with the meaning of the phrase "on the ground of" in s 66K. However, s 5 of the Act states:

"A reference in Part II, III, IV or IVA to the doing of an act by reason of a particular matter includes a reference to the doing of an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act."

The argument in this Court and below proceeded on the footing that there was no material difference between the phrase "by reason of" in s 5 and "on the ground of" in s 66K ^[F82] .

The issues

A number of the issues in this appeal turn upon the construction of the Act, in particular the interrelation between ss 66A(1) and 66K and the meaning of the phrase in s 66K(1) "unlawful for a person who ... provides ... services ... to discriminate against another person on the ground of the other person's impairment".

There is ample authority that remedial legislation, such as that found here, is to be accorded "a fair, large and liberal" interpretation rather than one which is "literal or technical". These were the phrases used by Thorp J in Coburn v. Human Rights Commission ^[F83] . They are of importance in this case, particularly in construing the term "services" as it appears in the statutory phrases "a person who ... provides goods or services" and "by refusing to provide the other person with those goods or services" in s 66K of the Act. Nevertheless, as will appear, the legislation must be read as a whole and such a term must be construed in the context in which it appears. The circumstance that "services" is used in what might be called human rights legislation does not necessarily indicate that it bears, to its full scope, the potential meaning which the legislature might have given it.

I turn to the issues in this appeal. First, there is what has been identified as the "standing" issue. The respondents contend that the appellant was not an "aggrieved person" within the meaning of s 66A and thus not a complainant permitted by s 83 of the Act to trigger its procedures by lodging a complaint in writing with the Commissioner for Equal Opportunity ("the Commissioner"). The complaint in question had been referred to the Tribunal by the Commissioner under s 93(1)(a). The Commissioner is required so to act where of the opinion that a complaint cannot be resolved by conciliation.

The contention that the appellant was not an "aggrieved person" within the meaning of s 66A was identified in submissions as an allegation as to lack of standing. "Standing" is an important concept in public law and the use in s 66A of the phrase "aggrieved person" evokes a proceeding for judicial review of an administrative decision. However, that is not this case. Rather, the Act imposes new obligations and confers new rights in private law to obtain statutory remedies if certain conditions are met by the applicant. One such requirement is that the applicant be an "aggrieved person" within the meaning of s 66A. Accordingly, the substance of the respondents' contention is that the appellant did not meet a requirement for the availability of the remedies which were granted to him by the Tribunal.

Secondly, there is an issue as to whether the processes of decision-making by the City were such as to render it a person which had discriminated against another person on the ground of that person's impairment. This issue was at the forefront of the special leave application.

Thirdly, there is an issue whether there was discrimination on the ground of impairment in the provision of "services", within the meaning of s 66K(1).

Fourthly, the respondents support the holding by Ipp J upon what has been called "the comparison question". This is that the City does not discriminate against those with an impairment if the reason for differential treatment is a characteristic not unique to such persons and the City treats uniformly all persons with that characteristic. On that view, the appropriate comparison is between the impaired person and a notional person who, while not so impaired, exhibits the characteristics similar to those of the impaired person.

Finally, the second to seventh respondents rely upon s 680 of the Local Government Act 1960 (WA) ("the LG Act") ^[F84] as an answer to the imposition of personal liability upon them ^[F85] .

Several of these issues arise upon a Notice of Contention filed by the respondents. As Kirby J points out, the Tribunal did not make the necessary factual findings for this Court to deal with the last issue. With respect to the comparison issue, I agree that it should be resolved in the manner proposed and for the reasons given by Toohey J. I deal with the remaining issues by commencing with those of "services" and "standing".

Services

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

Section 4(1) provides an inclusive, not exclusive, definition of services. It states that in the Act, unless the contrary intention appears:

"'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 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".

In the present case the Council, in a sense, was serving the community in the discharge of its functions under the town planning legislation whilst, at the same time, conferring a personal benefit or advantage upon successful applicants for planning permission. Were successful applicants also provided with services and those who were denied permission refused the provision of services? Were all applicants, successful and unsuccessful, provided with services by the exercise by the Council of its legal obligations to consider and dispose of applications for town planning approval? The appellant's primary submission was that the denial of approval was a refusal to provide services and thus was unlawful discrimination.

In Gould v. Yukon Order of Pioneers ^[F86] , the Supreme Court of Canada construed legislation which prohibited discrimination "when offering or providing services, goods, or facilities to the public" ^[F87] . L'Heureux-Dube J, in the course of dealing with the question of statutory construction said ^[F88] :

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

Earlier, in Attorney General of Canada v. Cumming ^[F89] , the Federal Court of Canada adverted to the question whether in assessing taxes the Department of National Revenue was engaged in the provision of services within the meaning of s 5 of the Canadian Human Rights Act ^[F90] . Thurlow ACJ said that he was not prepared to accept the broad proposition that in assessing taxes under the Income Tax Act ^[F91] the Department was not engaged in the provision of services within the meaning of s 5. His Lordship said ^[F92] :

"The statute is cast in wide terms and both its subject-matter and its stated purpose suggest that it is not to be interpreted narrowly or restrictively. Nor do I think that discrimination on any of the bases prohibited by the Act cannot conceivably occur in the provision of such services to the public."

Similar questions have arisen in England. Section 20(1) of the Race Relations Act 1976 (UK) provided that in certain circumstances it was unlawful for any person concerned with the provision (for payment or not) of services to the public or a section of the public to discriminate against a person seeking to obtain those services. In Savjani v. Inland Revenue Commissioners ^[F93] , the English Court of Appeal decided that the Inland Revenue was providing "services" to the public within s 20(1) when performing the duties laid on them by the taxation legislation to make a deduction from tax liability for a dependent child and to repay any consequential overpayment of tax, and in disseminating and giving advice to taxpayers to enable them to claim that tax relief. Templeman LJ said ^[F94] :

"As [counsel] on behalf of the revenue submitted, the board and the inspector are performing duties - those duties laid upon them by the Act which I have mentioned - but, in my judgment, it does not necessarily follow that the board and the inspector are not voluntarily, or in order to carry out their duty, also performing services for the taxpayer. The duty is to collect the right amount of revenue; but, in my judgment, there is a service to the taxpayer provided by the board and the inspector by the provision, dissemination and implementation of regulations which will enable the taxpayer to know that he is entitled to a deduction or a repayment, which will entitle him to know how he is to satisfy the inspector or the board if he is so entitled, and which will enable him to obtain the actual deduction or repayment which Parliament said he is to have. For present purposes, in my judgment, the inspector and the board provide the inestimable services of enabling a taxpayer to obtain that relief which Parliament intended he should be able to obtain as a matter of right subject only to proof."

In R v. Entry Clearance Officer; Ex parte Amin ^[F95] , Savjani was treated as turning on the finding that the Inland Revenue performed two distinct functions, first a duty of collecting revenue and secondly a service of providing taxpayers with information. In Amin itself, the House of Lords considered the operation of s 29(1) of the Sex Discrimination Act 1975 (UK) which was expressed in similar terms to s 20(1) of the Race Relations Act 1976 (UK). The House of Lords decided that a British entry clearance officer stationed in Bombay, when administering a special voucher scheme which enabled successful applicants to settle in the United Kingdom, was not providing a service for would-be immigrants. Rather, the officer was performing his statutory duty of controlling would-be immigrants and the refusal of a special voucher was not unlawful discrimination within the 1975 statute.

In the present case, the Tribunal decided the issue as follows:

"Taking the 'broad view', there can be no doubt that in administering a town planning scheme within its municipal area, regulating the use of land to the best possible advantage, securing provision for traffic and the other factors mentioned in s 2 [of the Town Planning and Development Act 1928 (WA) ('the Town Planning Act')] and clause 5 of the City Planning Scheme ['the Scheme'], and generally implementing or enforcing measures directed to the amenity of the area, the municipality of the City of Perth is providing a service to residents . In this context, the exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality is part of that service and is itself a 'service' within the meaning of s 4(1) of the Act. The statutory definition is inclusive, not exclusive, and where it is reasonably capable of having a sufficiently wide meaning to encompass a situation which would prima facie advance the objects and purposes of the Act, that interpretation is to be preferred (see eg NM Superannuation Pty Ltd v. Young ^[F96] )." (emphasis added)

The appellant contends, as was put successfully to the Tribunal, that, in performing its functions as responsible authority for the purposes of the Town Planning Act, including the Scheme, the City was providing services of the kind provided by a public authority or a local government body within the meaning of par (e) of the definition of "services".

The question arises whether the circumstance that, in dealing with applications for approval, the Council, as responsible authority, exercises its statutory functions and duties under the town planning law has the consequence that the Council is not also engaged in the provision of services to applicants within the meaning of the anti-discrimination legislation. An issue of characterisation is involved. Each statute operates in aid of particular ends considered important by the legislature. There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions ^[F97] .

The point may be illustrated by reference to the decision of the English Court of Appeal in Farah v. Commissioner of Police of the Metropolis ^[F98] . Otton LJ said ^[F99] :

"[P]olice officers perform duties in order to prevent and detect crime and to bring offenders to justice. They are also vested with powers to enable them to perform those duties. While performing duties and exercising powers they also provide services in providing protection to the victims of crimes of violence."

The plaintiff had sought such protection. Her claim was that because of her race she did not obtain the protection others would have been afforded and that she had suffered unlawful discrimination within the meaning of s 20 of the Race Relations Act 1976 (UK), by reason of the deliberate omission to provide services to her. The Court of Appeal held that such a claim was maintainable against the police.

If the present case be considered in that way, the Council, as executive organ of the City, was providing services whether it granted or refused a particular application for consent. The issue presented by the appellant then is whether, by reason of the treatment by the Council of the application in March 1990, the City contravened s 66K(1).

In the present case, the Council did not refuse to provide services. It did not, for example, refuse to accept or to deal with the application by PLWA in respect of the premises at Walcott Street, North Perth. Section 66K(1)(a) could have no application. It deals with refusal to provide services. Accordingly, the appellant's primary submission should be rejected.

However, in its application to the facts of this litigation s 66K(1)(c) looks to "the manner" in which the Council discharged its statutory obligations under the town planning law. That section made it unlawful for the Council to discriminate against an impaired person in the manner in which it provided that person with services. In a broad sense, the manner in which the Council went about its task with respect to the Walcott Street premises involved discrimination within the sense of the Act.

Standing

But that is not the end of the matter. The Act is concerned with the provision of services to the person who complains of discrimination and seeks the remedies for which it provides. That complainant must also be a person who suffers an impairment in the statutory sense. The appellant must bring the case within s 66K(1) and show discrimination by conduct in relation to the provision to him, as an impaired person, of those services. Here the appellant's case breaks down. The appellant suffered impairment but did not seek the provision of services by the Council. Services were sought by PLWA, but it did not suffer impairment.

The respondents accept that only those who were HIV positive were entitled to be members of PLWA, but submit that as a corporation PLWA was incapable of having an "impairment" as defined in s 4(1) of the Act. These submissions should be accepted. The terms of the definition of impairment, set out earlier in these reasons, indicate that it is directed to individuals rather than entities with an artificial legal personality.

Counsel for the appellant sought support for the contrary conclusion from certain passages in Koowarta v. Bjelke-Petersen ^[F100] . However, that case turned upon particular provisions of the Racial Discrimination Act 1975 (Cth).

The point is that, even giving full effect to the principles of construction referred to earlier in these reasons, as it stood at the relevant time the legislation was so drawn as not to accommodate the factual and legal framework which gave rise to the appellant's complaint.

Section 66A was amended by s 17 of the Equal Opportunity Amendment Act 1992 (WA). This inserted s 66A(1a). It provides that the discriminator discriminates against the aggrieved person on the ground of impairment if, on the ground of the impairment of any relative or associate of the aggrieved person , the discriminator treats the aggrieved person less favourably than in the same circumstances, or, in circumstances not materially different, the discriminator treats or would treat a person not having such an impairment. Had the Act been in this form at the relevant time, the inclusion of the reference to associates of the aggrieved person may have produced the result that PLWA (but not the appellant) was an "aggrieved person" by reason of the treatment of persons such as the appellant who were its associates. The proposition would be that, in refusing the development application, the City discriminated against PLWA on the ground of the impairment of its associates, being the members of that body. But in its earlier form s 66A did not have such an operation.

The requirement that the complainant be a person who suffers an impairment in the statutory sense is not merely one of form. I have referred to the orders made under s 127 by the Tribunal in the present case. Section 127 empowers the Tribunal to grant relief which is analogous to an award of damages and to a prohibitory or mandatory injunction.

These conclusions are sufficient to dispose of the appeal. However, special leave was granted primarily to deal with the question of general importance concerning the decision- making processes of the Council and other collegiate bodies to which the Act applies. Accordingly, I should indicate my conclusions upon that question.

Decision-making by the Council

Section 9 of the LG Act constituted the City as a body corporate and specified the Council as the executive body of the City. The Council consisted of the mayor and the councillors. Provision for the transaction of business at meetings of the Council was made by s 173 of the LG Act. Questions were to be determined by a majority of the valid votes of members present at the meeting (s 173(8)(b)). The appellant submits that this collegiate body of mayor and councillors, as executive organ of the City, so acted as to refuse the development application by PLWA "on the ground of" impairment within the meaning of Pt IVA of the Act.

The particular question here is whether the City discriminated in the sense specified in s 66K of the Act. It is not whether, under the general law or under the provisions of the LG Act itself, the decision was other than in proper form or lacked binding effect. It is true that s 66K(1) opens with the phrase "[i]t is unlawful". However, the effect of contravention of the Act is spelled out in s 154. This provides:

"(1)

A contravention of this Act shall attract no sanction or consequence, whether criminal or civil, except to the extent expressly provided by this Act.

(2)

Nothing in subsection (1) prevents an action for defamation."

The Council, as executive organ of the City, was a responsible authority for the purposes of the Town Planning Act. Section 7(3) thereof gave to the Scheme the full force and effect it would have had if enacted by the statute itself. Section 6(1) of the Town Planning Act stated that town planning schemes might be made with the general object of improving and developing the land in question to the best possible advantage and of securing suitable provision for such matters as traffic, transportation, disposition of shops, residence, factory and other areas, proper sanitary conditions, parks, gardens and reserves. Clause 34 of the Scheme had required the approval of the City, by its executive organ, the Council, to the application for the use of the premises in question. The City was a public body and a "person" to which, in the exercise of these powers, s 66K of the Act was directed. The effect of the Act was to require the exercise by the Council of its collegiate decision-making authority without any purpose rendered by s 66K of the Act foreign to that power.

Where, as in this case, the Council, as the executive organ of the City, exercised its powers as responsible authority to refuse the application in circumstances where, but for the ground relevantly animating five of the 13 majority councillors, the decision would not have been made, s 66K applies. In this regard, the Tribunal, in deciding as it did, did not fall into any error of law.

The appellant refers to the dictum of Lord Lowry in Jones v. Swansea City Council ^[F101] that the tort of misfeasance in public office might be established by a plaintiff who alleged and proved that a majority of councillors present and voting for a resolution did so with the object of damaging the plaintiff. The appellant also referred to decisions in which a challenge was made to the exercise of the powers of company directors.

An allotment of shares by directors will be invalidated if the impermissible purpose is causative in the sense that, but for its presence, the power would not have been exercised. This is so even if the impermissible purpose was not the substantial object or moving cause. Authority for that proposition is provided by Whitehouse v. Carlton Hotel Pty Ltd ^[F102] , where Mason, Deane and Dawson JJ referred to remarks by Dixon J in Mills v. Mills ^[F103] .

In Mills v. Mills , Dixon J said ^[F104] :

"Directors of a company are fiduciary agents, and a power conferred upon them cannot be exercised in order to obtain some private advantage or for any purpose foreign to the power. It is only one application of the general doctrine expressed by Lord Northington in Aleyn v. Belchier ^[F105] : 'No point is better established than that, a person having a power, must execute it bona fide for the end designed, otherwise it is corrupt and void.'"

However, in neither of these cases was the issue whether an allotment would be invalid where the impermissible purpose moved some but not all of the directors or some but not all of those directors comprising a majority of a divided board. Nor is any guidance, and therefore any useful analogy, supplied by the factual situation upon which rested the approval of Mills v. Mills ^[F106] by Lord Wilberforce in Howard Smith Ltd v. Ampol Petroleum Ltd ^[F107] .

In any event, if any analogy is to be sought from the field of equity, it is better found in the law regulating the exercise of trustee powers. Dixon J observed that the application of general fiduciary principles to the acts of directors in the course of managing the business affairs of a company "cannot be as nice as it is in the case of a trustee exercising a special power of appointment" ^[F108] .

In the absence of some other direction by statute, by a competent court, or by the terms of the will or settlement, where there is a plurality of trustees of a private trust all must join in the execution of the trust ^[F109] . If a power of appointment be vested in trustees or jointly in other appointors, an appointment in the exercise of the power may be fraudulent although only one of the appointors is infected with the fraud ^[F110] .

The councillors who voted on 19 March 1990 against the motion to grant the application for use of the premises at Walcott Street, North Perth, were not engaged in the commercial pursuits of company directors seeking to achieve profits for the benefit of shareholders. Nor, on the other hand, were the councillors law-makers invested with the ample authority of a parliament. Rather, pursuant to the LG Act they held public office for the good of the inhabitants whom s 9(1) of that statute identified as constituting the City ^[F111] .

The proposition, espoused in English decisions such as Bromley London Borough Council v. Greater London Council ^[F112] , that in the exercise of certain statutory powers and authorities local government bodies owe fiduciary duties to the ratepayers to date has not been accepted in Australia. In this case, it is unnecessary to determine whether any such proposition should be accepted here.

However, in the discharge of their public offices, the councillors were required to exercise any powers and authorities pertaining thereto for the end designed and not for any purpose rendered foreign thereto, whether by the general law or by any statutory provision. In my view, s 66K of the Act was such a provision.

As to the general law, since at least the decision of the Privy Council in Bowes v. City of Toronto ^[F113] , it has been accepted that, where the local government body is incorporated, councillors are to be treated as trustees for that corporation in the sense that they must account for secret profits made by virtue of their office and without the assent of the corporation. Knight Bruce LJ said ^[F114] :

"We are of opinion, however, that neither the governing character nor the deliberative character of the Corporation Council makes any difference, and that the Council was in effect and substance a body of trustees for the inhabitants of Toronto; trustees having a considerable extent of discretion and power, but having also duties to perform, and forbidden to act corruptly. With regard to members of a Legislature, properly so called, who vote in support of their private interests; if that ever happens, there may possibly be insurmountable difficulties in the way of the practical application of some acknowledged principles by Courts of civil justice, which Courts, however, are nevertheless bound to apply those principles where they can be applied. The Common Council of Toronto cannot in any proper sense of the term be deemed a legislative body; nor can it be so treated. The members are merely delegates in and of a Provincial town for its local administration. For every purpose at present material, they must be held to be merely private persons having to perform duties, for the proper execution of which they are responsible to powers above them."

The personal liability of councillors in cases such as the above to account for improper gains springs from the application to persons holding public positions of trust of doctrines developed in equity with respect to private rights and obligations. Public law also has a role to play.

Section 174 of the LG Act contained detailed provisions imposing prohibitions upon councillors taking part in consideration of or voting on matters in which they were interested. As a matter of general law, and even without particular provision such as that made by s 174, a decision made by such a body as the Council, one or more members of which are disqualified for bias, is liable to be set aside on administrative review ^[F115] .

An exception may be provided by statute or by the operation of a principle of necessity ^[F116] . One example of the operation of the principle of necessity may be considered. It has been said that a decision of a collegiate body may be successfully attacked for bias even where but one member was biased and that member was not one of the majority. This is on the footing that in bias cases the court does not enter into difficult evidentiary questions as to the extent to which that person may have influenced the majority ^[F117] . However, where the body in question is the sole repository of a statutory power, an exception to such a stringent rule may be necessary to enable it to function ^[F118] .

No such issue calling for the application of a principle of necessity arose on the facts of this case. It is unnecessary to determine how and to what extent the principle would apply to the operation of the Act upon the decision-making processes of the Council. However, it is significant that a contravention of the Act attracts no sanction or consequence except as expressly provided by that statute. The text of s 154 of the Act which so provides is set out earlier in these reasons. It follows that activity by the Council which contravenes the anti-discrimination statute nevertheless retains its efficacy for the purposes of local government and town planning law.

The concern of administrative law with the doctrine of bias in public decision-making seeks to advance objectives identified by Lord Woolf and Professor Jowell as follows ^[F119] :

"The first seeks accuracy in public decision-making and the second seeks the absence of prejudice or partiality on the part of the decision-maker. An accurate decision is more likely to be achieved by a decision-maker who is in fact impartial or disinterested in the outcome of the decision and who puts aside any personal prejudices. The third requirement is for public confidence in the decision- making process. Even though the decision-maker may in fact be scrupulously impartial, the appearance of bias can itself call into question the legitimacy of the decision-making process."

Comparable objectives are sought to be advanced by the statute giving rise to this litigation. I have referred to the statement of objects in s 3 of the Act and to the precepts by which the legislation is to be construed. In respect of the particular species of discrimination with which it is concerned, the Act seeks (but subject to s 154) to extirpate them from decision-making processes. This is so even where they do not provide the dominant or substantial reason for the conduct in question (s 5).

What of the case where the "person" whose activity falls for scrutiny upon a complaint of contravention of s 66K of the Act is a public body ^[F120] whose decisions are entrusted by its constituent law or authority to a collegiate group acting by a majority? Here the decision-making process will be tainted for the purposes of the Act by reason of discrimination, in similar manner as a decision

of that body would be tainted by the presence of bias, in accordance with the principles of administrative law. Under those principles it is no answer that only a minority of those decision-makers comprising the majority of the whole body was biased.

Conclusion

The appeal should be dismissed with costs.