Walter Colyer v State of Victoria

[1998] 3 VR 759

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(Judgment by: Kenny JA)

Between: Walter Colyer v State of Victoria
And: State of Victoria

Court:

Judges: Brooking JA
Callaway JA

Kenny JA

Subject References:
Discrimination law
Alleged discrimination by State on basis of impairment
Decision by Anti-Discrimination Tribunal to refer matter to Equal Opportunity Commission for investigation
Whether right of appeal against decision
Whether Tribunal required to have regard to possible defences
Meaning of "designed" in s.82 Equal Opportunity Act 1995
Whether objective or subjective test
Burden of proof

Legislative References:
Equal Opportunity Act 1995 - s 42, 82, 150, 156

Hearing date: 11 August 1997
Judgment date: 12 September 1997

Melbourne

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Judgment by:
Kenny JA

This is an appeal from a decision allowing an appeal by the State of Victoria ("the State") under s.150(1) of the Equal Opportunity Act 1995 ("the Act") from a decision of the Anti-Discrimination Tribunal ("the Tribunal") made under s.156(1) of the Act referring a matter to the Equal Opportunity Commission ("the Commission") for investigation. The learned judge below set aside the decision of the Tribunal and ordered, pursuant to s.109(6) of the Magistrates' Court Act 1989, that the case be remitted to the Tribunal for further consideration and determination according to law.

Mr. Colyer (the appellant in this appeal) suffers from an intellectual or psychiatric impairment. Because of his impairment he has, for some years, been a resident of certain institutions conducted by the State (the respondent in this appeal). Mr. Colyer is now a resident of the Kingsbury Training Centre ("Kingsbury"). Before his arrival at Kingsbury, he had been a resident of the Janefield Training Centre ("Janefield") for about four years.

In November 1994, the Minister for Community Services announced a proposal to build a new complex for intellectually disabled people. The complex was to be known as New Janefield. It was proposed that most of the existing residents of Kingsbury and Janefield be moved out of their existing accommodation and into community-based accommodation, and that only a relatively small proportion of the existing residents of those training centres be accommodated in the new complex.

On 12 June 1996, Mr. Colyer lodged a complaint with the Commission pursuant to s.105 of the Act in which he alleged that the proposal constituted discrimination (on the basis of impairment) in the provision of services contrary to s.42 of the Act in that the State, as the supplier of intellectual disability services under the Intellectually Disabled Persons' Services Act 1986 (Vic.), was proposing to refuse to provide the intellectually disabled people allocated to New Janefield with its services in community-based accommodation. Mr. Colyer sought various orders, including orders that the State refrain from implementing the proposal to house him at New Janefield and that the State provide him with intellectual disability services in community-based accommodation.

Also on 12 June 1996, Mr. Mark Feigan, writing for an organisation described as Action Resource Network, wrote to the President of the Tribunal and, after referring to the complaint lodged by Mr. Colyer, asked the Tribunal to exercise its powers under s.156(1) of the Act to refer to the Commission for investigation "the circumstances of a possible contravention of s.42 of the Act against other residents of Janefield and Kingsbury on the ground of their impairment". In support of this request, Mr. Feigan wrote, amongst other things, that:

"The complaint raised a matter of departmental policy and the criteria for institutionalisation".

(The complaint to which reference was made was, it seems, the complaint made by Mr. Colyer.)

On 28 June and on 1 and 2 July 1996 the Tribunal received evidence and heard argument from the representatives of the State and Mr. Colyer concerning two matters; first, an application made by Mr. Colyer for an interim order under s.131 of the Act that the State not proceed further with the construction of New Janefield and, secondly, as to the request that the Tribunal exercise power under s.156 of the Act. On 8 July 1996, the Tribunal refused Mr. Colyer's application for an interim order but referred to the Commission for investigation:

"the decision, and the implementation of the decision, of the Respondent's Department of Human Services to house certain intellectually disabled people (other than the Complainant) at a facility to be constructed on the site of the Janefield Training Centre and not in accommodation elsewhere."

The State challenged the Tribunal's decision to refer the matter to the Commission by way of an appeal under s.150(1) of the Act and by way of an application for judicial review pursuant to Order 56 of the Rules of Court. The grounds of challenge were the same in both proceedings. The grounds were first, that the Tribunal erred in failing to apply s.82 in deciding, as required by s.156(1), whether or not a contravention of Part 3 of the Act may have occurred; and secondly, that the Tribunal erred in holding that the matter concerned a possible contravention in relation to a class or group of people for the purpose of s.157(1)(b) of the Act.

The appeal and judicial review proceedings were heard and determined by Byrne, J. in August 1996. On 16 August 1996, his Honour allowed the appeal (upon the first ground referred to above) and remitted the matter for further consideration by the Tribunal and determination according to law. (The judicial review proceeding was struck out by his Honour with no order as to costs.)

The matter came before the Tribunal again on 27 September 1996. After considering the evidence before it on the first occasion as well as some additional evidence, the Tribunal made a decision identical in terms to that which it had made on 8 July 1996.

In reaching its decision on 27 September, the Tribunal apparently accepted that New Janefield would comprise a number of cluster units. Between three to six people were to be accommodated in each unit. Each unit was to include a bedroom for each resident, as well as communal living and garden areas. As far as possible the clusters were to resemble ordinary suburban cluster housing.

The Tribunal also apparently accepted that residence at New Janefield was to depend upon an assessment of the individual needs of existing residents of Kingsbury and Janefield. In summarising the evidence placed before it, the Tribunal said:

"After the Minister's announcement, a complex and lengthy assessment process was undertaken. The process concerned the residents of the existing Kingsbury/Janefield Training Centre. It involved information gathering and information giving. Departmental staff gathered information from files and previous assessments of their client intellectually disabled persons, from the families and others close to the clients, and from the clients themselves or, where appropriate, from advocates. Information about the proposed complex and other residential options was given to clients, their families and others who were consulted through means such as videos, questionnaires and group and individual discussion. The information gathered concerned the needs and wishes of clients, and the wishes of their families and those close to them. On the basis of this information, choices were made about whether existing residents of the Kingsbury/Janefield Training Centre should be relocated to community-based accommodation or to the new complex."

In summarising (and apparently accepting) the further evidence placed before it by the State, the Tribunal said:

"The material asserts that the redevelopment of Janefield was designed to meet the special needs of intellectually disabled persons and after a broad assessment was conducted to assess those special needs. On that basis, the decision to build the new complex was made. A detailed assessment of needs was then undertaken, to determine which of the Department's clients should live at the new complex. The design was revised to take into account the needs of individual clients emerging from that detailed assessment. The detailed assessment process included extensive consultation with clients, their families, people close to them and Departmental staff. The decision to house individual intellectually disabled persons at the new complex was made after taking into account the wishes of each person and of his or her family or those close to that person, and the type of special support services required by each person (for example, in relation to home management, self-management and personal care).

Each cluster of units at the new complex is designed to house differing numbers of intellectually disabled persons, depending on the extent of the disability of those people, whether and to what extent they exhibit challenging behaviour, and their support needs. The complex is designed for those whose needs cannot effectively be met within community-based accommodation, and is designed to provide higher staff to client ratios than in community-based accommodation."

In reaching its decision on 27 September 1996, the Tribunal identified the possible contravention of the Act as the decision made by the State to provide intellectual disability services to some intellectually disabled people at New Janefield and not in community-based accommodation as it was prepared to do for other intellectually disabled people. It expressed the view that it was not clear beyond argument that s.82(1) of the Act applied because -

"While we accept that intellectually disabled people are people with the attribute of impairment under the Act and that the accommodation support service provided by the State for those people is a service not provided by the State for the community in general and is required by the Intellectually Disabled Persons Services Act 1986 to be provided for intellectually disabled people, it is not clear that the services to be provided at the New Janefield are designed to support the special needs of intellectually disabled people. In determining whether the service is so designed, we have said that we may take into account the purpose of the service provider and whether the service is adapted or capable of meeting those special needs. On the material before us, we have no doubt that one of the purposes of the State providing the New Janefield was to cater for what it saw as the special needs of those who are to live there. However, the material before us is equivocal as to several matters. In the first place, it appears from the material before us that budgetary constraints (scarce resources) may have played a part in the decision to house some intellectually disabled people at the New Janefield and some in community based accommodation. In the second place it appears that another reason for constructing the New Janefield may have been a desire to sell some of the site of the existing Janefield Training Centre for use by the private residential market. In the third place, although the additional material placed before the Tribunal indicates that, before the Ministerial announcement of the New Janefield redevelopment was made, a broad assessment of needs had taken place, the original material placed before us does not indicate this. The original material indicates that a Ministerial announcement was first made, and then a policy was developed to determine who should live at the new complex. All these factors cast doubt on the purpose for which the services at the New Janefield were designed.

In the fourth place, the Intellectually Disabled Persons Services Act 1986 sets the framework within which the State is to provide special services for intellectually disabled people. In our view, on a reading of that Act as a whole, the emphasis of service provision within the framework of that Act must be on community integration and not institutionalisation, and must take into account the wishes and choices of intellectually disabled individuals eligible for the services under that Act."

For similar reasons the Tribunal took the view that it was unclear whether s.82(1)(b) of the Act would apply because, in its view, it was unclear whether "the services of the New Janefield are designed to prevent or reduce a disadvantage suffered by intellectually disabled people in relation to accommodation, education, training or welfare."

The State again sought to challenge the decision of the Tribunal by way of an appeal under s.150 of the Act, naming Mr. Colyer as sole respondent to the appeal. When the appeal came on for hearing before the learned judge below on 4 December 1996, counsel for Mr. Colyer challenged the competency of the appeal. For that reason, on 5 December 1996 the State made application pursuant to Order 56 for judicial review of the decision made by the Tribunal under s.156 of the Act. In the judicial review proceeding, the State named as respondents Mr. Colyer, the Tribunal and the Commission. On 5 December 1996, the learned judge below granted leave pursuant to Order 56.02(3) extending time for the commencement of the judicial review proceeding until that day and ordered that that proceeding (being No.8020 of 1996) be heard with the appeal (being No.7472 of 1996). At about the same time, the Tribunal and the Commission apparently informed the learned judge that they would submit to any orders made in the judicial review proceeding without taking part in the proceeding (unless any question of costs arose in relation to them).

Save for the orders mentioned above, no other orders have been made in the judicial review proceeding. When the learned judge below gave judgment on 19 February 1997, allowing the appeal, the judge enquired of the parties whether there was any reason why orders should not then be made in the judicial review proceeding. After some discussion (and for reasons which do not appear) the learned judge adjourned the judicial review proceeding without making final orders and that proceeding has not been the subject of appeal to this Court.

On 13 June 1997 various applications were made to this Court in matter No.7472, including an application for leave to appeal. The Court granted leave without deciding whether, for the purposes of the appeal, it was necessary to do so.

The questions raised on this appeal are:

(1)

whether s.150(1) of the Act confers a right of appeal on the State against the decision of the Tribunal made on 27 September 1996 under s.156 of the Act.

(2)

whether the Tribunal is required to have regard to s.82 of the Act in deciding whether a contravention of Part 3 of the Act may have occurred.

(3)

whether the word "designed" in s.82(1) of the Act means "intended for a definite purpose", or "adapted to, or capable of achieving" the specified objectives in s.82(1) of the Act, or has a combination of these meanings.

(4)

whether in seeking a reference under s.156(1) of the Act, the proponent is required to establish, on the balance of probabilities, that a contravention of Part 3 may have occurred and that s.82(1) of the Act does not apply.

(1) Does the State have a right to appeal under s.150 of the Act against the decision made by the Tribunal under s.156(1) of the Act?

Sub-section (1) of s.156 provides as follows:

"If the Tribunal becomes aware of circumstances where a contravention of Part 3, 5 or 6 may have occurred (other than an alleged contravention that is the subject of proceedings before the Tribunal), the Tribunal may refer the matter to the Commission for investigation."

The State seeks to appeal against the decision made by the Tribunal to refer for investigation the matter identified by Mr. Feigan, for Action Resource Network, in his letter of 12 June 1996.

Section 150 of the Act relevantly provides:

"(1)

Any party to proceedings before the Tribunal may appeal to the Supreme Court, on a question of law, from an order of the Tribunal in those proceedings.

(2)

For the purposes of the appeal :

(a)

the relevant order is to be treated as if it were a final order of the Magistrates' Court;

(b)

subject to sub-section (3), section 109 of the Magistrates' Court Act 1989 applies as if a reference in that section to the Court were a reference to the Tribunal.

(3)

..."

That is, the Act, by s.150(1), confers a right to appeal, on a question of law, on "any party to proceedings" from an order of the Tribunal in those proceedings. The word "proceedings" is relevantly defined in s.4 to mean, in relation to the Tribunal,

"all proceedings before the Tribunal in relation to a complaint ...".

A "complaint" is defined in s.4 to mean "a complaint lodged under section 105". The word "party" is defined in s.4 to mean, in relation to a complaint or proceedings before the Tribunal "the complainant, the respondent, any third party joined by the Tribunal and any person granted leave to intervene". The words "complainant" and "respondent" are respectively defined in s.4 as "a person who lodges a complaint or on whose behalf a complaint is lodged" and "a person about whom a complaint has been lodged under section 105".

Counsel for the appellant submitted that in respect of the Tribunal's exercise of powers under s.156 of the Act, the State was not a "party to proceedings" and there was no "order" for the purposes of s.150 of the Act. Counsel for the respondent replied that the words "proceedings" and "order" are of wide application, referring to such authorities as Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employees Association (1906) 4 C.L.R. 488 , at p.494 and R. v. Recorder of Oxford; ex parte Brasenose Cottage [1970] 1 Q.B. 109 , at p.114. The respondent's submission was that the reference in the present case was the product of proceedings in relation to a complaint and that the reference was to be characterised as an order. The learned judge below accepted the respondent's submission.

Whether or not the making of a decision under s.156(1) occurs in "proceedings ... in relation to a complaint" depends upon the terms of the Act. The operation of the Act does not effect this result in this case and it is difficult to imagine any situation in which it would. The institution and resolution of complaints is dealt with in Part 7 of the Act. A person initiates a complaint by lodging it with the Commission: s.105. As soon as practicable after a complaint is lodged, the Commission must notify the respondent: s.107. If the Commission does not decline to entertain the complaint on the grounds set out in s.108 (or the respondent does not succeed in an application to strike out the complaint (s.109)), the Commission will, in the ordinary case, first refer the complaint for resolution by conciliation: s.112. If the complaint cannot be conciliated, notice to that effect is given to the complainant by the Chief Conciliator, and the complainant may then require the Commission to refer the complaint for a hearing by the Tribunal under Division 7 of Part 7: s.117. The jurisdiction of the Tribunal to hear complaints is set out in s.134. After the Tribunal has given an opportunity to the parties to be heard, it may make orders of the kind referred to in s.136, as well as an order for costs as referred to in s.138. The procedure of the Tribunal is set out in Division 8 of Part 7 and includes the requirement in s.147 that the Tribunal give a party to proceedings before it reasonable notice "of the time and place at which it intends to hear those proceedings", as well as a reasonable opportunity to adduce evidence and make submissions. As already noted, s.150 (which falls within Part 7) entitles a party to proceedings before the Tribunal to appeal from a decision of the Tribunal in those proceedings to the Supreme Court.

Part 8 of the Act deals with a different subject, namely, investigations by the Commission and the Tribunal. Section 156 sets out the circumstances in which the Commission may undertake an investigation. These are-

(1)

where the Tribunal becomes aware of a possible contravention of Part 3, 5 or 6 (other than an alleged contravention the subject of proceedings before the Tribunal) and refers the matter to the Commission for investigation (s.156(1));

(2)

where the Commission becomes aware of a possible contravention of Part 3, 5 or 6 in the course of performing its educative and research functions under s.162 and obtains the Minister's consent to investigate the matter (s.156(2)); and

(3)

where the Commission becomes aware of a possible contravention of Part 3, 5 or 6 in the course of dealing with a complaint or investigating a matter under s.156(1) or 156(2) (other than the contravention alleged in the complaint or being investigated) (s.156(3)).

A matter cannot be investigated under s.156(1) or (2) unless it fulfils the criteria set out in s.157. That is, the matter must be of sufficiently serious nature to warrant investigation, and it must concern a possible contravention in relation to a class or group of people in circumstances where the lodging of a complaint by one person only would not be appropriate.

In my view, s.156(1) contemplates that the Tribunal may refer a matter for investigation of its own motion, and in the absence of a proponent for referral or a contradictor. I do not think that this is an unfair or inconvenient result.

The Act directs the Commission to conduct an investigation "in the same manner, as nearly as practicable, as if it were a complaint": s.158(1). Accordingly, it seems that notice must be given by it to the party the subject of the investigation upon the initiation of the investigation: cf. s.107. If, after investigation, the Commission is satisfied that a person has contravened Part 3, 5 or 6, the Commission must in the ordinary case "make all reasonable endeavours" to conciliate the matter. If, however, it appears that conciliation will fail, or an attempted conciliation has failed, the Commission must refer the matter to the Tribunal: s.158(3). The Tribunal must then inquire into the matter and, if satisfied that a person has contravened Part 3, 5 or 6, may make orders of the kind referred to in s.159 of the Act. Appropriate notice must also be given to a person who is the subject of inquiry by the Tribunal, and such a person would, it seems, have a right of appeal to the Supreme Court: cf. s.159(2).

If a decision under s.156(1) were properly to be characterised as made in proceedings (as defined in s.4), the Tribunal, before reaching its decision, would be obliged to give notice to the parties in accordance with s.147 of the Act although, at this stage of the administrative process, there is no "party" within the meaning of the Act. Having regard to the remainder of Part 8 (in which s.156 falls), it is in my view improbable that Parliament intended this result.

I do not think that the operation of the Act should be understood to change just because the application for an interim order made by Mr. Colyer was heard by the Tribunal at the same time as it was considering the request made by Mr. Feigan, for Action Resource Network, to refer a matter for investigation by the Commission. Whether or not a person has a right to appeal under s.150 should not depend upon a coincidence of this kind, being a coincidence which is not within the contemplation of either s.150 or s.156(1).

At each stage following a referral made under s.156(1), Parliament has specifically indicated how the process is to be conducted. As I have noted already, in s.158(1), Parliament has directed the Commission to conduct an investigation "as nearly as practicable, as if it were a complaint". If, following an investigation by the Commission, a matter is referred under s.158(3) for inquiry by the Tribunal under s.159(1), Parliament has provided that Divisions 8, 9 and 10 of Part 7 "apply to an inquiry ... as if it were a proceeding under that Part". One may infer from the absence of any like provision in relation to s.156(1) that Parliament did not contemplate that any process under s.156(1) would be a proceeding, or in the nature of a proceeding. Further, as the terms of s.159(2) in fact indicate, nothing done under Part 8 of the Act can be "proceedings" within the meaning of the Act, because nothing done under Part 8 is "in relation to" a complaint. This contrasts with Part 7. Thus, if the procedures applicable to "proceedings" were to apply to "inquiries" under s.159(1), it would be necessary to have a provision like s.159(2).

Further, even if in this case the contest between Mr. Feigan for Action Resource Network and the State on the exercise of power under s.156(1) could be said to have constituted a proceeding, I do not think that the words "in relation to" are intended to cover a connection of the kind which existed between the complaint made by Mr. Colyer (and which was in fact the subject of proceedings before the Tribunal) and the contemplated exercise of power under s.156(1). True it is that in his letter of 12 June 1996, Mr. Feigan, for Action Resource Network, referred to the complaint made by Mr. Colyer and true it is that both Mr. Feigan and Mr. Colyer sought to challenge the decision to provide disability services at New Janefield. Further, as already noted, Mr. Colyer's application for an interim order was heard at the same time as the Tribunal was considering matters relevant to s.156(1) Mr. Colyer's complaint was, however, a challenge to the decision so far as it effected discrimination against him whereas the allegation made by Action Resource Network was that there had been a contravention of Part 3 of the Act because the decision effected discrimination against certain people other than Mr. Colyer. This difference is fundamental. The effect of s.156(1) is that the Tribunal cannot refer a matter for investigation upon the basis of an alleged contravention that is already the subject of proceedings before the Tribunal. The Tribunal must become aware of some other possible contravention. When read out of context, the words "in relation to" are wide enough to cover almost any connection: cf. O'Grady v. Northern Queensland Co. Ltd. (1990) 169 C.L.R. 356 , at p.367 per Dawson, J. When read in the statutory context, it seems to me that the connection between Mr. Colyer's complaint and any decision under s.156(1) was not a relevant relationship for the purposes of the words "in relation to" in the definition of "proceedings" in s.4 of the Act. That is, in my view there was no relevant relationship between the complaint made by Mr. Colyer and the question whether the Tribunal should make a decision under s.156(1) to refer for investigation the matter raised by Action Resource Network.

Accordingly, the State was not entitled to appeal to the Supreme Court from the decision of the Tribunal made on 27 September 1996 under s.156(1) of the Act because the decision was not made in any "proceedings" (as defined in s.4). That appeal is therefore incompetent.

Given my conclusion on the first limb of the appellant's argument that the appeal instituted by the State was incompetent, it is not necessary to express a view as to the meaning of the word "order" in s.150(1) of the Act.

As noted above, three other questions are raised by this appeal. I propose to deal with them, although, in view of my answer to the first question, it is not necessary to do so. They have each been fully argued. Both parties pressed us to answer them. The questions raise matters of on-going concern for those involved in this appeal. As the Tribunal's attempt to exercise power under s.156(1) of the Act has already given rise to four proceedings in this Court, it seems highly undesirable to increase the risk of yet more litigation. Further, no final orders have yet been made in outstanding judicial review proceedings (No.8020 of 1996). The questions also raise matters of general significance, having regard to the fact that there is comparable legislation in the Commonwealth and in other States and Territories.

(2) Was the Tribunal required to have regard to s.82 in deciding whether a contravention of Part 3 of the Act may have occurred?

In written submissions, it was submitted for Mr. Colyer that the Tribunal was not required "to canvass Part 4 defences in applying s.156(1)". In my opinion, this submission misconceives the nature of the problem. I regard it as clear that the Tribunal is obliged to have regard to all relevant provisions of the Act when making a decision under the Act. In the circumstances of this case, s.82 is plainly relevant.

Before the Tribunal can exercise the power conferred by s.156(1) of the Act, it must first have become aware of circumstances where a contravention of Part 3 (or of Parts 5 or 6) may have occurred. (As already noted, an alleged contravention that is the subject of proceedings before the Tribunal is not a relevant contravention.)

By his letter of 12 June 1996, Mr. Feigan, on behalf of Action Resource Network, sought to make the Tribunal aware of circumstances where a contravention of s.42 (which falls within Part 3) of the Act may have occurred. Section 42 of the Act provides:

"(1)

A person must not discriminate against another person :

(a)

by refusing to provide goods or services to the other person;

(b)

in the terms on which goods or services are provided to the other person;

(c)

by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2)

Sub-section (1) applies whether or not the goods or services are provided for payment."

The word "services" is defined in s.4 to include "services provided by a government department ...". This would include the disability services provided by the Department of Health and Community Services (as it is now called) under the Intellectually Disabled Persons' Services Act 1986. The meaning and concept of "discrimination" is dealt with in s.7, s.8 and s.9 of the Act. For present purposes, it suffices to refer to s.8 which provides:

"(1)

Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2)

In determining whether a person directly discriminates it is irrelevant :

(a)

whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b)

whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason."

The motive of the putative discriminator is irrelevant in determining whether or not there has been discrimination (s.10). The Act prohibits discrimination (within the meaning of the Act) on the basis of impairment in the areas of activity set out in Part 3 of the Act (s.6(b)). The word "impairment" is defined in s.4 of the Act to include, in par(d)(i) of the definition, "a mental or psychological disease or disorder".

Parts 3 and 4 of the Act contain provisions which except or exempt certain discrimination from the prohibition against discrimination contained in the Act. If conduct which is the subject of a complaint under s.105 (or a reference under s.158(3)) constitutes discrimination which is proscribed by the Act and is not excepted or exempted from the operation of the Act, the Tribunal may make orders in accordance with s.136 (or where a matter has been referred, s.159) to the effect that the discriminatory conduct cease.

When a question arises as to whether an alleged discrimination amounts to a contravention of the Act, s.12 of the Act is plainly relevant. Section 12 provides as follows:

"This Act does not prohibit discrimination if an exception in Part 3 (whether or not in the same Division as the provision prohibiting the discrimination) or Part 4 or an exemption under Part 4 applies."

In effect the discrimination said to be effected by the decision to retain certain people at New Janefield instead of moving them into community-based accommodation cannot constitute a contravention of the Act if it falls within an exception in Part 3 or Part 4, or an exemption under Part 4.

Section 82 is included in Part 4 of the Act. Part 4 is entitled "General Exceptions to and Exemptions from the Prohibition of Discrimination". Sub-section (1) of s.82 operates to exempt from Part 3 "anything done in relation to the provision to people with a particular attribute of special services, benefits or facilities that are designed" to achieve the objectives specified in that sub-section. If the Tribunal were of the view that s.82(1) applies in the circumstances described in Mr. Feigan's letter of 12 June 1996, the Tribunal would be unable to accede to his request to exercise power under s.156(1), because the Tribunal would not have the requisite awareness (i.e., that a contravention of Part 3 may have occurred). If the Tribunal were of the view that s.82(1) applies, the Tribunal would necessarily be of the view that there had been no contravention of Part 3 (and therefore no contravention of s.42) of the Act.

In making a decision under s.156(1), the Tribunal is not entitled to have selective regard to only such provisions of the Act as it chooses. In deciding whether it is aware of circumstances where a contravention of Part 3 (or Parts 5 or 6) may have occurred, the Tribunal must have regard to the Act as a whole. It does not, of course, follow from this that the Tribunal is bound in each case to make an independent preliminary investigation into the circumstances of any discrimination of which it might become aware in order to satisfy itself that there is no relevant exception or exemption. References under s.156(1) will not have been made unlawfully simply because it is later found that an exception under Parts 3 or 4 or an exemption under Part 4 applies. The question for the Tribunal is: may a relevant contravention have occurred, having regard to the relevant material then before it and the provisions of the Act as a whole?

Accordingly, the Tribunal was required to have regard to s.82(1) in deciding whether to exercise its power under s.156(1) upon the basis of the material which was then before it.

(3) What meaning should be ascribed to the word "designed" in s.82(1)?

Section 82 of the Act reads as follows:

"(1)

Nothing in Part 3 applies to anything done in relation to the provision to people with a particular attribute of special services, benefits or facilities that are designed -

(a)

to meet the special needs of those people; or

(b)

to prevent or reduce a disadvantage suffered by those people in relation to their education, accommodation, training or welfare.

(2)

Without limiting the generality of sub-section (1) -

(a)

a person may grant a woman any right, privilege or benefit in relation to pregnancy or childbirth;

(b)

a person may provide, or restrict the offering of, holiday tours to people of a particular age or age group."

Sub-section (1) of s.82 has two, or possibly three, basic elements. First, the act in question must be done "in relation to the provision" of services (or benefits or facilities) to people with a particular attribute (as referred to in s.6). Secondly, the services (or benefits or facilities) must be services (or benefits or facilities) that are "special", either in the sense that they are "designed" to meet the special needs of people with the particular attribute or to prevent or reduce a relevant disadvantage, or in the sense that the services are not made available to people generally but only to those with the particular attribute. If the word "special" were used in this latter sense, s.82(1) would contain a third element: the "special" services must be designed to meet the special needs of people with the particular attribute or to prevent or reduce a relevant disadvantage. It is unnecessary in this case to decide upon the preferred approach.

The learned judge below held that the word "designed" in s.82(1) meant "intended for a definite purpose". Counsel for the appellant submitted that the judge was in error in this regard, and that the word "designed" meant "reasonably adapted to achieve the objects" referred to in par.(a) or par.(b) of s.82(1).

The word "designed" is capable of meaning "planned, purposed, intended": cf. Oxford English Dictionary, Second Edition, "designed". One may paraphrase the relevant expression in s.82(1) by saying "the provision of services to people with a particular attribute that are intended or planned by the provider of the services to meet the special needs of those people, or "the provision to people with a particular attribute of services that are intended or planned by the provider of the services to prevent or reduce a relevant disadvantage suffered by those people". If this were the meaning of "designed" in s.82(1), it would be sufficient to establish that the services were to be provided by the service-provider with the intention referred to in par.(a) or par.(b) of s.82(1). The word "designed" is, however, also capable of meaning "fashioned" or "framed according to design": cf. Oxford English Dictionary, above. In this case it would be necessary to say that the relevant services are "fashioned" or "framed according to design" to achieve the objects referred to in par.(a) or par.(b) of s.82(1) and, for this purpose, one would need to examine the suitability of the services to achieve those objects. In the present context, I think the former is the more natural reading and is supported by statutory history and statutory context.

Section 82 derives in part from s.39(f) of the Equal Opportunity Act 1984 (Vic.). By virtue of s.39(f) of the former Act it was lawful to exclude "any person from a bona fide programme, plan or arrangement designed to prevent or reduce disadvantage suffered by a particular class of disadvantaged persons". In this earlier provision, the word "designed" in connection with the word "bona fide" clearly signified "planned" or "intended" by the service-provider.

In November 1993 the Scrutiny of Acts and Regulations Committee of the Victorian Legislative Council published its Final Report on a Review of the Victorian Equal Opportunity Act 1984. Section 82 took its present form following recommendations contained in that Report. Comparison between the earlier provision (s.39(f) of the 1984 Act) and the present provision (s.82 of the 1995 Act) does not indicate that Parliament intended to alter the meaning of the word "designed" in s.82 from that which it had borne in the former s.39(f). All that Parliament intended to do was to increase the ambit of the exemption, exempting special services intended to satisfy special needs, whether or not such services were intended to do so by preventing or diminishing a relevant disadvantage.

The appellant submitted that, having regard to modern approaches to statutory drafting and construction, it was unlikely that Parliament would have made the availability of the exemption in s.82(1) depend solely on the intention of the service-provider and not on some test of the suitability of the services to achieve the objects referred to in par.(a) or par.(b) of s.82(1). An examination of the other exception and exemption provisions contained in the Act shows, however, that in this Act Parliament has deliberately utilised the language of objective and subjective criteria to indicate that one rather than the other kind of criterion is to apply, depending on the subject matter of the exemption. Instances of objective criteria can readily be found: cf. s.24, s.36, s.46, s.53, s.73(1) and s.80. There is at least one instance in which Parliament has adopted a subjective criterion and an objective criterion in the one provision: see s.25 which includes a criterion of genuine belief (that discrimination is necessary to protect the well-being of children) and a criterion that that belief is a rational one (having regard to all the relevant circumstances).

Had Parliament intended, in s.82(1), to adopt a test of the kind for which the appellant contends, it might have chosen to adopt the language of an objective criterion as it has done elsewhere in the Act. Alternatively, Parliament might have chosen to adopt the language of the comparable provision in the Disability Discrimination Act 1992 (Cwth.) which provides that it is not unlawful to do an act that "is reasonably intended to" ensure that disabled people have equal opportunities with others or afford disabled people access to services, facilities or opportunities to meet their special needs.

Counsel for the appellant submitted that the purposes of the Act would best be promoted if the word "designed" were construed so as to import an objective test relating to the suitability of the services to meet the ends referred to in par.(a) and par.(b) of s.82(1). It is indeed appropriate that the Act be read in light of its statutory objects: see Interpretation of Legislation Act 1984 (Vic.), s.35(a); also Waters v. Public Transport Corporation (1991) 173 C.L.R. 349 at p.359 per Mason, C.J. and Gaudron, J., with whom Deane, J. agreed. I do not, however, accept that the application of this principle would lead one to prefer the test for which the appellant contends.

The objectives of the Act, set out in s.3, are relevantly:

"(a)

to promote recognition and acceptance of everyone's right to equality of opportunity;

(b)

to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes;

(c)

...

(d)

to provide redress for people who have been discriminated against or sexually harassed."

As I have already observed, s.12 of the Act marks out the field within which these objectives are to be furthered by the prohibition of discrimination. Discrimination is taken outside this field if it falls within a Part 3 or Part 4 exception, or a Part 4 exemption. The exceptions and exemptions for which the Act provides reflect the balance struck by Parliament between prohibiting relevant forms of discrimination on the one hand and protecting diverse public interests on the other.

The interests protected by the exceptions and exemptions to be found in Part 3 and Part 4 vary greatly. Some may complement the equal opportunity objective referred to in s.3 of the Act. For example, par.(b) of s.82(1) may be regarded as a "special measure" which is directed to alleviating forms of substantive discrimination by authorising the provision of special services designed to prevent or diminish a relevant disadvantage suffered by people with a particular attribute. Par.(a) of s.82(1), by contrast, is directed to an essentially different (though not unrelated) end. This is made manifest in the circumstances of this case where the attribute in question is mental or psychological impairment.

Disabilities, physical or mental, inevitably give rise to special and differing needs, depending on the nature and extent of the disability. In a society such as ours, these needs can be met by the provision by public authorities of special services. In Victoria the Department of Health and Community Services is charged by the Intellectually Disabled Persons' Services Act 1986 with the provision of services for intellectually disabled persons. The aim and objectives of the Department under that Act are set out in s.6 and include the planning and administration of "a complete, comprehensive and integrated statewide program for intellectually disabled persons". Perusal of the Intellectually Disabled Persons' Services Act discloses that the Department is charged with responsibility for the provision of disability services both within institutional settings and in community-based accommodation, and is charged with consideration of a broad range of matters including the adjustment of the competing needs of intellectually disabled persons and others: see, e.g., s.18(1)(c). Par.(a) of s.82(1) authorises a service-provider to make available services which are special in the sense that the services are designed (or intended or planned) by the provider (in this case, the Department) to meet the special needs (in this case, of the mentally or psychologically impaired). To that end, the paragraph authorises discrimination which may not, on any view, promote an objective referred to in s.3 of the Act. There are other exceptions or exemptions which also permit conduct which is not conducive to those objectives: see, e.g., s.80 of the Act.

I do not, therefore, consider that one should ascribe a different meaning to the word "designed" on account of the objectives set out in s.3 of the Act. In any event, if a "suitability" criterion instead of an "intention" criterion were adopted, par.(a) of s.82(1) would still authorise conduct which could not in any real sense be said to promote any of the objectives in s.3. On either view, these objectives have very little, if any, relevance to the operation of par.(a) of s.82(1) of the Act.

Parliament would seem to have taken the view, in s.82(1), that if the service-provider genuinely intends the relevant services to meet the ends referred to in par.(a) or par.(b) of s.82(1), it is for the service-provider to determine whether the services are suitable or appropriate to satisfy those ends and not for an administrative body having a different focus or for a court lacking relevant expertise.

The legislatures of other States and Territories have pursued a similar approach. A number have, in comparable legislation, adopted a criterion referable to the intention of the service-provider in exemptions comparable to par.(a) of s.82(1) of the Act: see, e.g., Anti-Discrimination Act 1977 (N.S.W.), s.126A; Equal Opportunity Act 1984 (S.A.), s.82; Equal Opportunity Act 1984 (W.A.), s.66R; Discrimination Act 1991 (A.C.T.), s.27; cf. Human Rights Act 1993 (N.Z.), s.73. The Anti-Discrimination Act 1992 (N.T.), in s.57, refers to "a program, plan or arrangement designed to promote equality of opportunity ...". The Anti-Discrimination Act 1991 (Qld.), in s.104, refers to "an act to benefit the members of a group ... with an attribute for whose welfare the act was designed". The Sex Discrimination Act 1994 (Tas.), in s.25, also refers to "any programme, plan or arrangement designed to promote equal opportunity ..." (although the Tasmanian legislation does not extend to disability discrimination). The Queensland Anti-Discrimination Tribunal has taken the view that the word "designed" refers to the intention of the service-provider: see In the matter of Secrana Pty. Ltd. v. Beaudesert Shire Council (1996) E.O.C. 92-779.

Counsel for the appellant also sought to rely on s.10 of the Act in support of the proposition that "intention" was irrelevant in the application of the Act as a whole, including s.82. Section 10 is, however, directed to a different question, namely, whether there is discrimination: the provision says nothing about the proper construction of s.82.

In support of the contention that the word "designed" should be read as importing an objective criterion, counsel for the appellant referred us to the approaches taken in such cases as Magna Alloys and Research Pty. Ltd. v. Federal Commissioner of Taxation (1980) 49 F.L.R. 183 , at p.185 and in Inland Revenue Commissioners v. Rossminster Ltd. [1980] A.C. 952 , at pp.1000, 1013-1014. Approaches to the reading of different words in different statutes have, however, a very limited utility.

It was suggested in argument that the use of the word "designed" was unusual in Victorian legislation. In fact, however, the word "designed" appears at least 149 times in Victorian Acts and Regulations. Most commonly, it is used in connection with buildings, tools and other fabricated objects: see, e.g., Cemeteries Regulations 1988, Reg.5(2), and Trade Measurement Regulations 1995 Reg.51(1)(a). In this context, the word "designed" tends naturally to refer to its fabrication or manufacture and accordingly matters of form and use become relevant: see, e.g., Sondo Pty. Ltd. v. Federal Commissioner of Taxation (1991) 102 A.L.R. 362 , at pp.364-5; South Sydney Municipal Council v. James (1977) 35 L.G.R.A. 433, at p.444. In this context, were "designed" to signify "intended", it would commonly be difficult to identify whose was the relevant intention and a practicable manner of proof.

There are also other instances in Victorian legislation where the word "designed" has been used in connection with things of a different kind such as programmes, services, discounts, inducements and, in s.151 of the Evidence Act 1958, instruments in writing: see, e.g., Children and Young Persons' Act 1989, s.52(3); Public Authorities (Equal Employment Opportunity) Act 1990, s.3 "equal employment opportunity program", Optometrists Regulations 1992, Reg.602. In this context, the word "designed" naturally bears the meaning "planned" or "intended".

If, as I conclude, the word "designed" refers in s.82(1) to the plan or intention of the service-provider, s.82(1) requires the relevant decision-maker to be satisfied that the genuine and not colourable intention of the service-provider in providing the relevant special services was to satisfy the ends described in par.(a) or par.(b) of s.82(1). The intention of the service-provider will be a matter to be established by reference to all the relevant circumstances, including direct evidence of the service-provider's intention as well as such inferences as may be drawn from the nature of the services to be provided, the identity of the recipients of the service and, possibly, any relevant obligations cast by law on the service-provider in relation to the provision of the services. If upon consideration of all relevant matters, the decision-maker is satisfied that the genuine and not colourable intention of the service-provider is to provide the special services for the ends identified in par.(a) or par.(b) of s.82(1), then it follows that the services are "designed" to meet those ends. If the decision-maker is not so satisfied, then it follows that the services are not so designed. That is, if it were to appear that the relevant intention was not held or not genuinely held by the service-provider, then s.82(1) would not apply.

In this case the Tribunal has already found that a purpose of the State in providing services at New Janefield is to cater for what it sees as the special needs of those who are to live there. It follows that s.82(1)(a) applies. On the view I have taken, that finding renders irrelevant the budgetary and financial considerations to which the Tribunal also referred. Nor does the Tribunal's reference to the Intellectually Disabled Persons' Services Act 1986 remain apposite. Under the Intellectually Disabled Persons' Services Act 1986, the State still has a choice as to whether to deliver its disability services in an institutional setting or in community-based accommodation. The fact that it chooses to provide disability services to some people in an institutional setting instead of in community-based accommodation does not show that it does not intend to provide those services to meet the ends set out in par.(a) or par.(b) of s.82(1).

(4) Is a person who requests a reference under s.156(1) required to establish, on the balance of probabilities, that a contravention of Part 3 of the Act may have occurred (including that s.82(1) does not apply)?

The learned judge below accepted the proposition that the onus was on the person seeking a reference under s.156(1) to establish, on the balance of probabilities, that a contravention of Part 3 (or 5 or 6) may have occurred and that s.82(1) did not apply. The appellant's submission is that it was incumbent on the State, as the party seeking to bring itself within the exception, to establish the facts which would attract s.82(1). In support of this submission, counsel for the appellant referred to a number of authorities, including Dowling v. Bowie (1952) 86 C.L.R. 136 , at pp.139-40 and Vines v. Djordjevitch (1955) 91 C.L.R. 512 , at pp.519-520.

The appellant's submission may well have been correct, in my view, had the Tribunal been exercising the jurisdiction conferred by s.134 or s.159 of the Act. I do not think that the appellant's submission correctly states the position when the question arises under s.156(1).

In making a decision under s.156(1) of the Act, the Tribunal is bound to consider three questions: first, has it become aware of circumstances where a contravention of Part 3 (or 5 or 6) may have occurred? Secondly, is the matter of a kind which satisfies the criteria referred to in s.157? Thirdly, is it appropriate in all the circumstances to refer the matter for investigation by the Commission? No decision made by the Tribunal under s.156(1) entails any finding that there has (or has not) been a contravention of Part 3 (or 5 or 6) of the Act. There can be no such finding until there has been an investigation: see s.158(2). Even then, that finding is scarcely final: see s.158(3) and s.159. Further, as already noted, s.156(1) contemplates that the Tribunal may proceed to refer a matter for investigation of its own motion, and in the absence of a proponent for referral or a contradictor. In the circumstances, the concept of the onus of proof is not relevant.

The Tribunal, in making a decision under s.156(1), is bound to act according to law (which includes considering all the relevant provisions of the Act). It must not act unreasonably, and there must be some probative material to permit it to be affirmatively satisfied that it has the requisite awareness and that each of the matters referred to in s.157 is satisfied. Cf. Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321 , at pp.356-7 per Mason, C.J.

For the reasons set out earlier, I propose that the appeal be allowed and the appeal to the judge below be dismissed as incompetent.