I W v CITY OF PERTH & OTHERS

Judges: Brennan CJ, McHugh
Dawson, Gaudron
Toohey
Gummow

Kirby JJ

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

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

Judgment date: 31 JULY 1997

Judgment by:
Kirby J

The important facts are simple. A local government body refused to permit a change of zoning to allow a shop to be developed as a "drop-in" centre for people infected with the human immuno- deficiency virus ("HIV") or manifesting its final stage, acquired immuno-deficiency syndrome ("AIDS"). The refusal resulted from a narrow vote in the Council of that body. The Tribunal with the exclusive jurisdiction to determine facts found that 5 of the majority on the Council cast their votes not upon planning or like grounds but because of views which they then held about HIV/AIDS impairment or the characteristics which they ascribed to persons so impaired. Some of the characteristics relied upon were found by the Tribunal to have involved ignorance, prejudice and stereotyping. The votes of the five made all the difference. Without their votes, the body would have approved the application.

Legislation prohibiting discrimination on the grounds of impairment was expressly extended to local government bodies. Proceedings for redress were brought by individuals who had stood to benefit from, and wished to use, the "drop-in" centre. The decision of the Tribunal, affirmed on the first appeal, found that the local government body had engaged in unlawful discrimination on the ground of impairment. In the circumstances, such a decision seems scarcely surprising. The orders, obliging the body and the offending councillors to pay, between them, to the three original complainants, an aggregate amount of $8000, were modest ones. Presumably the purpose of such orders was educative or symbolic rather than punative.

However, the proceedings illustrate once again the difficulty of obtaining the successful application of anti- discrimination legislation to simple facts. It is a difficulty about which commentators frequently complain ^[F121] . Take these proceedings as an example. The trial at first instance occupied nine hearing days over thirteen months. There were two appeals to the Supreme Court, the second rising to the Full Court. Now, before this Court, the case is disposed of in favour of the alleged discriminators upon a ground rejected at every level of the hearings below. Such a result may be inescapable when one descends from generalised expectations or sentiments to the technical language in which the anti-discrimination legislation is expressed. Courts grappling with the novel concepts and objectives of such legislation quite frequently complain about the difficulties which they are called upon to resolve ^[F122] . They warn against "misdirected" litigation which seeks to impose upon such legislation "a traffic it was not designed to bear" ^[F123] .

Those who are alleged to have acted in an unlawful and discriminatory manner are entitled to defend themselves and to raise every available legal argument, as the respondents have done here. That is what the rule of law permits. But unless courts are willing to give such legislation the beneficial construction often talked about, it seems likely that the legislation will continue to misfire. That risk may be greatest when those who invoke the legislation comprise individuals or groups in minorities most in need of protection but least likely to strike a sympathetic chord.

Approval for an HIV "day time drop-in centre" is refused

The City of Perth (the first respondent - "the City") is a municipality ^[F124] comprising a body corporate ^[F125] with the powers conferred, and obligations imposed, on it by law. The municipality is constituted by the inhabitants for the time being of the applicable district ^[F126] . The executive body of the City is the Council ^[F127] . In the case of a municipality which is a city, the Council consists of the mayor and councillors ^[F128] . The Council may, on behalf, and in the name, of the municipality, exercise the powers conferred by law. It is obliged to discharge the obligations imposed by law upon the municipality or the Council ^[F129] .

Such powers and obligations include those arising under legislation made to ensure orderly town planning ^[F130] . Pursuant to such legislation, in the case of the City, the City of Perth City Planning Scheme 1985 ("the Scheme") was promulgated ^[F131] . Clause 34 of that Scheme forbids a person from commencing or carrying out any use of land (other than that exempted by relevant zoning ^[F132] ) "without first having applied for and obtained the town planning approval of the Council under the Scheme" ^[F133] .

In Walcott Street, North Perth, a suburb of the City, controlled by the Scheme, a site was found which a group of interested persons, including IW ("the appellant") wished to use as a "drop-in" centre for people living with HIV and AIDS and associated persons. The site adjoined a second-hand furniture shop on one side and a video and television repairer's shop on the other. It was in an area zoned by the Scheme for shopping use. To use the site for the purpose proposed the appellant, and those others involved, required the planning approval of the Council.

On 24 January 1990 an incorporated association known as People Living With AIDS (WA) Inc ("PLWA") submitted an application to the Council for such planning approval. The appellant was, at all material times, a member of PLWA. On 5 February 1990, the City Planner reported to the Town Planning Committee ("the Committee") that the proposal had the full support of the City's Planning Department. The Committee resolved to defer consideration of the application in order to procure the opinions of residents and owners of the nearby properties. Of the replies, 31 opposed the application and 14 supported it. The reasons given for the opposition included unexceptionable planning grounds (eg inappropriate zoning; insufficient parking; traffic generation; and likely future increase in use). But there were also other reasons of a different character (eg fear of the spread of AIDS and the possibility of contracting it; attraction of "undesirables" including homosexuals, intravenous drug users, ex-prisoners and child molesters; and consequential damaging effect on property values and business revenue).

The Committee, having considered these responses, resolved to recommend that the application be refused. That recommendation went to the Council. A motion to refuse was put but lost. As a result, the application was referred back to the Committee for further consideration. This course was apparently the result of the Town Clerk's action in drawing to the Council's attention the possible legal problems which might arise if the application were refused other than for proper planning reasons. Specifically, the Town Clerk drew to the notice of the Council the then recent amendment to the Equal Opportunity Act 1984 (WA) ("the Act") to include impairment as a ground of unlawful discrimination. The councillors were informed that HIV/AIDS was "clearly a physical impairment within the terms of that legislation" and that the Equal Opportunity Tribunal established by the Act ^[F134] ("the Tribunal") could "look behind" a decision and examine the motives of individual councillors ^[F135] .

PLWA, in consultation with the City Planner, subsequently modified its original proposal to overcome some of the objections relating to car spaces and access. The revised application was again supported by the City's Planning Department. The Committee resolved to refer it directly to the Council. It was considered there on 19 March 1990. A motion was put that the application be approved for a trial period of 12 months. After a lengthy debate, that motion was committed to a vote. It was defeated by 13 votes to 12.

On 21 March 1990 PLWA appealed to the Minister for Local Government against the Council's decision. Exercising his powers under the Act ^[F136] , on 6 April 1990 the Minister upheld the appeal and approved the application.

In evidence later taken before the Tribunal, it emerged that the centre had been operating for several years. It had done so "very successfully" in the opinion of one of the original opponents, Cr Donald Nairn ^[F137] . A pharmacist who had been involved in the State's methadone programme, Cr Nairn, had expressed concern during the Council debate "about drug users dropping needles ... [and] used syringes" ^[F138] . However, before the Tribunal, he acknowledged that there had been no such problems, that he was very pleased about the centre, that there had been no complaints and that the outcome was "wonderful". This happy result was not, however, because of the decision of the Council. It was solely because the Minister reversed that decision under the exceptional powers enjoyed by him.

One of the objectives of anti- discrimination legislation is to secure such outcomes by the avoidance of prejudiced decision-making based upon false or stereotyped assumptions about specified considerations (for example, race, sex or impairment). Such considerations might otherwise prejudice decisions which should be made on their merits, uninfluenced by forbidden grounds.

Proceedings under the Act

Notwithstanding the decision of the Minister, PLWA and its supporters (including the appellant) were upset by the way in which their application had been decided by the Council. They took the view that the narrow vote against it had been influenced by the kind of unlawful discrimination which the Act was designed to prevent and redress. On 14 August 1990, PLWA made a complaint to the Commissioner for Equal Opportunity, established under the Act ^[F139] . That complaint was joined by the complaint of three individual members, one of whom was the appellant. The proceedings named the City and the 13 individual councillors who had voted against the application as the respondents. This complaint was referred by the Commissioner to the Tribunal ^[F140] .

Subsequently, PLWA was deleted as a complainant. Evidence before the Tribunal having concluded, the respondents sought a ruling from the Tribunal that there was no case to answer and that the complaints should be dismissed ^[F141] . A ruling was given refusing that application ^[F142] . The respondents appealed to the Supreme Court of Western Australia. That Court dismissed the appeal in October 1992 ^[F143] . The hearing then resumed before the Tribunal. Further complications followed the death of one of the parties in the appellant's camp, always a risk in the case of litigants with this particular impairment. The record was amended and the submissions concluded.

On 21 July 1993, the Tribunal published its reasons for the orders which it then made. It found that the complaints of unlawful discrimination against the City were substantiated. It ordered the City to pay each of the individual complainants small sums of money, being $2,000 in the case of the appellant ^[F144] . The Tribunal found no unlawful discrimination against the majority of the councillors named as respondents to the proceedings. But it found as against six named councillors (Cr David Nairn, Cr Donald Nairn, Cr Peter Nattrass, Cr Salvatore Salpietro, Cr Vincenzo Scurria and Cr Victor Vlahos) that the complaints were established. It found that the complainants were entitled to recover $4,000 damages against those named respondents. Its order provided for the apportionment of that sum amongst the complainants ^[F145] and as between the individual respondents ^[F146] . In respect of the respondents so named, save for Cr Nattrass, the Tribunal found that each had advertently "caused" or "aided" the City to do the unlawful discriminatory act, so that each was personally liable under s 160 of the Act. In the case of Cr Nattrass, who had spoken powerfully at the critical meeting against the application, but departed prior to the vote, it was found that he had advertently "aided" the City to commit the act. He was found liable under the same section.

The City and the named respondents appealed to the Supreme Court of Western Australia. Pursuant to the Act ^[F147] , such an appeal was limited to "a question of law".

The appeal was heard by Murray J. He dismissed it ^[F148] . The respondents then appealed to the Full Court of the Supreme Court of Western Australia. Their appeal was heard by a Court comprising Ipp, Wallwork and Scott JJ ^[F149] . That Court unanimously upheld the appeal. It set aside the orders of the Tribunal. It ordered that the complaints of each of the complainants (including the appellant) be dismissed.

By special leave, the appellant, apparently the sole survivor of this litigation, now comes before this Court seeking to restore the order of the Tribunal. The sum of damages involved is small indeed, being only $4,000 in his case. But the principles are important.

The litigated issues

Some only of the many issues which were litigated below remain alive. Others have either fallen by the wayside or, although included in the record, have not been pressed. Certain issues arise in the notice of appeal. Others arise out of an amended notice of contention by which the respondents sought to uphold the orders of the Full Court upon grounds which the Full Court rejected. The resulting issues are:

1.

The corporate liability issue : Whether the Tribunal erred in its approach to the determination that the City had discriminated in an unlawful way by having regard to the conduct of the five named councillors in voting as they did? Or whether it was necessary to show that a majority of the Councillors (or at least a majority of the majority voting against the proposal) were affected by an unlawful ground, in order that unlawful discrimination on their part could be attributed to the City?

2.

The comparison issue : Whether the majority of the Full Court ^[F150] erred in holding that the comparison required by the Act ^[F151] obliged the Tribunal only to consider the way in which the respondents would have treated persons not impaired (ie by HIV or AIDS) but exhibiting characteristics ^[F152] similar to those ascribed to the complainants? Or whether the statutory provisions required regard to be had to the characteristics which the councillors had ascribed to the applicants?

3.

The services issue : Whether the refusal to approve the change of use for the premises was a refusal of a "service" and so forbidden by the Act ^[F153] ? Or whether, in law, it was not open to the Tribunal to so hold?

4.

The entitlement issue : Whether, given that the only body which had actually applied to the Council for the provision of the refused "services" was PLWA (and not the appellant) there was any relevant refusal of a service to the appellant so as to render him a "person aggrieved" and the respondents liable for unlawful discrimination against him (as distinct from PLWA)?

5.

The councillors' issue : Whether, having regard to the terms of an exempting provision of the Local Government Act ("LGA") ^[F154] the individual councillors could not be personally liable in the absence of proved "wilful or intentional misconduct or ... negligence" and whether this statutory exemption applied to relieve the individual respondents of the liability found against them by the Tribunal?

Common ground

To help isolate the issues in the appeal and to put the questions for decision in context, it is useful to note certain matters which were not in issue:

1.

The appeal from the decision of the Tribunal being limited to questions of law ^[F155] , it is impermissible to determine or re-determine questions of fact or to substitute a view of the facts for that reached by the Tribunal. A possible reason for withholding the facility of a general appeal from bodies such as the Tribunal to a court is a Parliamentary conclusion that a specialist body, constituted as the Tribunal is, will be more likely to be knowledgeable about and sympathetic to the objectives of legislation such as the Act than courts have proved to be. The giving of meaning to common words of everyday use (for example "service") does not ordinarily raise a question of law ^[F156] . Appeals so confined are severely constrained by established legal doctrine ^[F157] .

2.

The purpose of anti-discrimination legislation, such as the Act, is to ensure that, within the areas prescribed by Parliament, equals are treated equally and human rights are not violated by reference to inappropriate or irrelevant distinctions ^[F158] . Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation ^[F159] . Courts will not unduly stretch the language of such legislation ^[F160] . But they will be very slow to find that the effect of something which is discriminatory falls outside the ambit of the legislation, given its purpose ^[F161] . This is especially so where a complainant, who can establish unequal treatment, falls within the category of persons for whom anti- discrimination legislation has apparently been enacted ^[F162] . It is legitimate in giving effect to such legislation, to keep in mind its broad purposes and, to the full extent that the text permits, to ensure that the Act achieves its objectives and is not held to have misfired ^[F163] . To the extent that, in legislation such as the Act, courts adopt narrow or pernickety approaches, they will force parliaments into expressing their purposes in language of even more detail and complexity. This will increase the burden and costs of litigation. It will obscure the broad objectives of such statutes and frustrate their achievement.

3.

By statute in Western Australia, where an ambiguity is found, an Act is to be accorded a construction which will promote the underlying purpose or objective of the Act ^[F164] . The fundamental purpose and objective of the Act in question here is not punitive. It is designed to educate the community about the irrelevance and potential injustice of stereotyped distinctions. The procedures required of the Tribunal ^[F165] and the range of remedies open to it ^[F166] indicate the non-penal character of the legislation, its educative function and compensatory and ameliorative objectives.

4.

Against this background, it is unsurprising that the weight of authority supports the proposition that it is unnecessary for a complainant to show that the alleged discriminator intended to discriminate or set out with that motivation and purpose ^[F167] . Some doubts have been expressed concerning this opinion ^[F168] . Certainly, where the alleged discriminator is shown to have been actuated by a deliberate discriminatory purpose, that fact, if proved, will make the breach of the statute easier to establish. But much discrimination occurs unconsciously, thoughtlessly or ignorantly. It would subvert the achievement of the purposes of the Act if it were necessary for a complainant to establish that the alleged discriminator intended, or had the motive, to discriminate ^[F169] . All that need be shown is that the alleged discriminator has acted "on the ground of" ^[F170] , relevantly, impairment. That involves an objective characterisation of the discriminator's "ground" for its conduct, for which subjective intention may be relevant but is not decisive.

5.

The liability of the City gave rise to some debate. No contest was raised that the City, being a municipality within the LGA ^[F171] , was a body corporate and a "person" within the proscription established by the Act ^[F172] . However, the respondents drew attention to the assumptions that had been made throughout that the acts of the Council were the acts of the City. They pointed to the fact that the Scheme assigned the approval in question to the Council as the statutory donee of power. As no point was raised about this suggested distinction in the Tribunal, where it might have been met or cured by amendment, it was common ground that it could not be raised in the appeal. In any case, the City, being an inanimate corporation, is required to act by its Council and officers who have statutory powers for that purpose. The differentiation raised can be ignored with only a passing tribute to the ingenuity that produced it.

6.

It was common ground that the personal complainants (including the appellant) were at all material times HIV positive and members of PLWA. Similarly, that the medical status of being HIV positive or having AIDS constituted an "impairment" within the meaning of the Act ^[F173] . Likewise, the Council was the authority responsible, under the relevant legislation ^[F174] , to enforce the applicable town planning scheme and to give the approval sought in this case from the City. The Tribunal acknowledged that it had no legal competence to review any decision of the Council (and thus the City) on town planning matters. The limit of its competency under the Act was the determination of complaints of unlawful discrimination ^[F175] .

7.

Various questions arose at earlier stages which have not troubled this Court. For example, it was disputed that a further appeal lay within the Supreme Court to the Full Court. This point was decided in favour of the respondents ^[F176] ; it will be assumed correctly. Similarly, although in this Court the respondents, by their notice of contention, contested the liability of Cr Nattrass (who, it will be remembered, did not vote on the application at the critical meeting), this contention was abandoned at the hearing. One argument of potential importance which was raised before the Tribunal did not survive, as such, into the appellate process. This was the question whether, upon its true construction, the Act was intended to apply at all to the quasi-legislative functions of a body such as the Council, elected to be the executive body of the City ^[F177] . For the purpose of the appeal, it has been assumed that the Act does so apply. In a case where so much else was contested, I am prepared to proceed on this footing in the comfortable belief that had there been anything at all in the point, the respondents would surely have persisted with it.

The relevant legislation

In the definition section of the Act, two definitions should be observed. They appear in s 4(1). The definition of "services" is set out in the reasons of Brennan CJ and McHugh J. The same sub-section contains a definition of "impairment". It reads:

"In this Act, unless the contrary intention appears -

'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 ... "

The Part of the Act dealing with "Discrimination on the Ground of Impairment" was inserted when Part IVA was added to the Act in 1988. That Part contained ss 66A and 66K. The relevant parts of those sections are set out in the reasons of other members of the Court. I will not repeat them.

The power to provide, by regulation, exceptions for infectious diseases should be noted ^[F178] . However, at the relevant time no such regulations had been made.

The corporate liability issue

The first issue arises out of the corporate character of the City. It involves the determination of what constitutes the reasons or grounds of the action of the City, bearing in mind that the refusal of services which is made unlawful by the Act ^[F179] is a refusal "on the ground of the other person's impairment". Given that, for the purposes of the proceedings, it is accepted that the City could act only through the Council and that this body comprised 26 individuals, each with his or her own grounds for action, the question is posed: How is the "ground" of the refusal of the Council to provide the alleged "services" to be determined? For the purpose of deciding this issue, the other arguments of the respondents are assumed to be decided in favour of the appellant.

The Tribunal considered that this question was to be answered by reference to the votes of the five councillors who, it found, had cast their vote against the PLWA application on grounds which discriminated on the basis of impairment. The Tribunal decided that the votes of these councillors were "causative in terms of the decision of the Council (and hence the City of Perth, whose executive decision-making body the Council was), in that but for them that decision would not have been made" ^[F180] . This "but for" test was accepted at the first level of appeal ^[F181] . The Judge rejected the submission that it was necessary to show that a majority of the Council were affected by an unlawful ground in order to ascribe that ground to the Council (and to the City). He concluded that, having regard to the size of the majority which determined the Council's (and thus the City's) refusal, it would have been sufficient if the vote of one councillor had been "grounded in the consideration of the impairment of the aggrieved person" ^[F182] . The finding that five councillors voted against the application because of "the AIDS factor" was sufficient to establish the "ground" of the Council's (and the City's) refusal.

In the Full Court, Ipp J ^[F183] and Wallwork J ^[F184] disagreed. Ipp J concluded that "only a state of mind possessed, collectively, by a majority of councillors voting can be attributed to the Council, and hence the City" ^[F185] . Wallwork J took a slightly different view ^[F186] :

"As it was not established that the application was refused by a majority of the 13 persons who made the relevant decision on the ground of impairment all of the appeals must be allowed."

Scott J took a different view again. In his opinion ^[F187] :

"the true ground for decision by the collegiate body (the City of Perth and the Perth City Council) cannot properly be ascertained ...

[The complainants] have been unable to identify the reasons for decision by the [City]."

Four views therefore compete for acceptance. First, that it is enough to show that "but for" the votes of the five councillors, affected by the unlawful consideration, the application would have been granted and discrimination avoided. Secondly, that the "ground" of the Council's refusal lies in the state of mind of the majority of the councillors. Thirdly, that it lies in the mind of the majority of the majority refusing the application (ie 7 of the 13 persons who voted against it and not 5). Fourthly, that it is unascertainable or, at least, unascertained.

Bearing in mind the purposes of the Act, the answer to this puzzle is to be found in the terms of s 5. At the relevant time ^[F188] , s 5 of the Act provided:

"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."

Part IVA is the Part dealing with "Discrimination on the Ground of Impairment". A minor problem arises because the key provisions in that Part describing discrimination (s 66A) and rendering it unlawful in the provision of, or refusal to provide, services (s 66K) are both expressed in terms of discrimination "on the ground of" impairment, not "by reason" thereof. The respondents made much of this difference, suggesting that it caused s 5 to miscarry in the case of impairment. In support of this argument, reference was made to the subsequent amendment of the section. However, the argument is without substance. There is no work for s 5 to do in Part IVA of the Act unless it is to attach its terms to the ground of impairment, relevantly in ss 66A and 66K. It should not be assumed that Parliament took the trouble of amending s 5 to apply its terms to Part IVA with no relevant purpose. That purpose is plain enough. It involves a recognition of the fact that, typically, human motivation is complex. Discriminatory conduct can rarely be ascribed to a single "reason" or "ground". Although elsewhere in the Act the word "reason" is used, the reference to that word in the context of Part IVA is clearly designed to achieve the same object. The Macquarie Dictionary gives as its primary definition of "reason" a "ground or cause, as for a belief, action, fact, event, etc". It would defeat the operation of s 5 in its application to Part IVA if any other approach were taken.

Once this conclusion is reached, it is clear that, by s 5, Parliament provided that, so long as an unlawful ground (relevantly impairment) is one of the reasons for the conduct of the alleged discriminator (even if not the dominant or substantial reason) that is enough. The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant or irrational considerations which the Act is designed to prevent. Because persons, faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons - and because affirmative proof of an unlawful reason is often difficult - the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the act was "by reason" or "on the ground" of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real "reason" or "ground". It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the Act.

This approach is consistent with that adopted, in respect of similar language, by the House of Lords. In James v. Eastleigh Borough Council ^[F189] their Lordships were considering the phrase "on the grounds of sex". Applying a test earlier stated in a unanimous opinion of the House of Lords ^[F190] it was concluded that the test for the establishment of the relevant discrimination was "not subjective, but objective" ^[F191] . It was whether the complainant would have received the same treatment "but for" the prohibited ground. Whatever may have been the intention or motive of the alleged discriminator (a matter which might be relevant so far as remedies were concerned ^[F192] ), such subjective considerations were "not a necessary condition of liability" because it was "perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground [complained of]" ^[F193] . The application of this "but for" test was reaffirmed in James ^[F194] . It has also been approved in this Court ^[F195] . In my view it is the correct test. In the present case it must be applied keeping s 5 of the Act in mind. It is not necessary for the claimant to show that the unlawful reason (or ground) was the dominant or substantial reason (or ground) for the doing of the act. It is enough that it had a real causative effect in the sense that but for its presence the act complained of would not have occurred.

An added complication arises in the present case because of the fact that the alleged discriminator was not a natural person but a local government authority. How might the "reason" or "ground" of that body be ascertained for the purposes of the Act? As has been stated, it was not disputed that a corporation, such as the City, might be a "person" capable of discrimination within ss 66A and 66K of the Act. Nor was it ultimately disputed that the "reason" or "ground" of the relevant conduct of the City was to be ascertained by examining the conduct of the members of the Council. The suggestion that a body corporate such as the City fell outside the language of the Act or that its reasons or grounds for action were incapable of being ascertained must be rejected ^[F196] . The express inclusion in the definition of "services" of "services of the kind provided by ... a local government body" makes it plain that Parliament contemplated that such a body might perform an act of unlawful discrimination. The only way that a "local government body", as distinct from its employees and agents as individuals, could do so, would be by acting through its lawfully constituted governing body, the Council, or through its officers. Because councils comprise elected individuals acting upon multiple grounds and for complex reasons, Parliament should not have ascribed to it either the erection of impossible barriers for the ascertainment of the "grounds" or "reasons" or the completely unrealistic insistence that the corporate body (or a majority of its members) should have one single ground or reason. I agree with the comment of Ipp J, when dealing with the meaning of "services", when he said ^[F197] :

"Town planning approvals and licences have historically been means whereby persons and institutions holding power have frequently discriminated against minority groups. It would be strange indeed if the legislation was not intended to apply to grants of this kind."

Equally strange would be the adoption of an approach to the ascertainment of the "reason" or "ground" of a local government body which failed to take into account the way in which such bodies ordinarily operate. Most strange of all would be an insistence on establishing the presence of an impermissible "ground" or "reason" in the individual motivation of a majority of the councillors (or even a majority of the majority), when legal authority has repeatedly insisted that subjective motivation is not the test and when, by s 5, Parliament has provided that proof, amongst the many potential "reasons", of the presence of the unlawful consideration is enough to attract the application of the Act.

Whilst it is doubtless helpful to seek analogies for statutory interpretation in other areas of the law, there are dangers in doing so. A great deal of attention was paid below to the analogy thought to arise from the ascertainment of whether directors of a company had voted to issue shares, in part, for an impermissible purpose. In such a case, this Court has held that an allotment would be invalid if the impermissible purpose "was causative in the sense that, but for its presence, 'the power would not have been exercised'" ^[F198] . The tests stated in that context are concerned with the principles governing the validity of the act or decision in question once it is found that the persons acted as they did for two or more reasons. Such cases do not help in determining, for the purposes of the present Act, whether the reasons of particular councillors may be attributed to the City, a separate legal person.

That attribution is to be discovered in a way which advances the purposes of the Act. Those purposes could only be achieved, in the case of the City, acting through the vote of the members of its Council, by ensuring that no unlawful "ground" caused the doing by the City of the act complained of ^[F199] . Where, as in this case, the discrimination alleged was not only one of the reasons for the act of the Council (and hence the City) but was also critical to the determination which decided whether the act would be done or not, the discriminatory conduct on the part of the members of the Council may be attributed to the Council itself. This is not because of a doctrine of company law or administrative law. It is because no other interpretation would achieve the objectives of the Act that the relevant conduct (in this case of the local government body) should be free from unlawful discrimination and that proof that the unlawful ground for the conduct was "the dominant or substantial reason" is not required ^[F200] .

I would therefore reject the arguments that it was necessary to show that the majority of councillors or, alternatively, a majority of the majority acted on the unlawful ground. The Full Court erred in its approach on this point. It was led into error by its use of inapplicable analogies instead of concentrating on securing the objects of this particular Act as expressed in its language.

The comparison issue

The respondents also succeeded in the Full Court on the construction of s 66A of the Act favoured by two of the Judges ^[F201] . Section 66A requires a comparison to be made between the way in which the discriminator treated the aggrieved person and the way in which the discriminator "treats or would treat" another person. In issue are the characteristics which are to be attributed to the other person for the purposes of the comparison.

Stated generally, the section requires a comparison to be made between the treatment of an impaired person (on the one hand) and the treatment of an unimpaired person in like circumstances (on the other). Before the Full Court the respondents succeeded in their submission that the Tribunal had erred in law in construing s 66A(1). It was held that the Tribunal had done so by basing its decision on imputed characteristics attributed to the impaired person, whereas what was required was a comparison based solely on impairment itself. The two Judges who dealt with this point considered that the language and structure of the sub-section, together with authority dealing with analogous provisions ^[F202] , required a different comparator to that used by the Tribunal and affirmed by the primary Judge. According to their view, the respondents did not discriminate against people with an impairment if the reason for the differential treatment was a characteristic not unique to people with such an impairment and the respondents would have treated all persons with such a characteristic uniformly. All that was forbidden by the Act was discrimination by reference to the impairment.

There is no doubt that this view of the sub-section draws a measure of support from the terms in which the provision is expressed. The closing words of the sub-section direct attention to the way in which the alleged discriminator "treats or would treat a person who does not have such an impairment". This is the "impairment" which the aggrieved person claims is the ground of the discrimination. No reference is made in the description of the comparator to a characteristic appertaining generally toa ^[F203] , or generally imputed to ^[F204] , persons having the same impairment. It would have been simple for Parliament to have defined the comparator in terms both of the impairment and the characteristics generally appertaining or imputed to impaired persons. But it did not do so. The word "impairment" is defined in s 4(1) of the Act to mean physiological conditions. The definition does not incorporate the kinds of characteristics mentioned in s 66A(1) of the Act. Furthermore, by drawing a distinction between the impairment itself ^[F205] and those "characteristics", it can be argued that Parliament was conscious of the differentiation and deliberately provided for it.

This view of the section was not favoured in the Tribunal ^[F206] or by the primary Judge. ^[F207] The construction to be given to it is not unarguably clear. However, a number of considerations support the contrary construction which the appellant urged:

1.

To achieve the apparent objects of the section, like must be compared with like. In the words of the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson ^[F208] :

"It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment ... could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act."

Although these words were expressed in the context of discrimination on the ground of marital status, they apply to other forbidden grounds, including impairment. The section acknowledges what ordinary experience teaches. The source of discrimination is as often a characteristic attributed, or imputed, to persons as the ground of discrimination itself. Except perhaps in cases where the link between the characteristic and the impairment is unique to a particular group of people with the impairment, the approach favoured by the Full Court would tend to defeat the achievement of the purpose of the Act. This conclusion obliges a court to consider whether an alternative construction is reasonably available.

2.

When s 66A(1) is examined, its structure suggests that the comparison is between a person with the impairment (in the sense of the physical condition and the characteristics or requirements that go with it) and a person with a like combination of physical conditions, characteristics and requirements. The phrase "ground of impairment" appears in the opening words of the sub-section. It is not difficult to see the succeeding paragraphs ((a) to (d)) as constituting a definition or description of the "impairment" being referred to. When, in the closing words of the sub-section the comparator is described as a person "who does not have such an impairment", the word "such" invokes the "ground of impairment" referred to in the opening words. That "ground of impairment" therefore incorporates not only the physical impairment mentioned in par (a) but also the "characteristic" referred to in pars (b) and (c) and the "requirement" mentioned in par (d). Read in this way, the word "such" may be viewed as a shorthand formula to import each of the paragraphs into the notion of "impairment" and thus to enlarge the denotation of that word in its primary sense, which would otherwise constitute only one of the paragraphs (par (a)).

3.

It is true that the word "impairment" is defined in s 4(1) and appears in juxtaposition to the "characteristics" and a "requirement" stated in the paragraphs of s 66A(1), the definition stated in s 4(1) is expressed to be "unless the contrary intention appears". The definition has work to do in par (a). But the context suggests that it cannot control the word where it appears in the opening sentence of the sub-section or at its close.

4.

A second basis (apart from the language and structure of s 66A(1)) which persuaded the Full Court that the City could have been justified in acting on the basis of a "characteristic", had it not been associated solely with a particular impairment, was the view taken of the facility in s 66U of the Act permitting an exemption in the case of identifiable infectious diseases which constitute a risk to public health ^[F209] . However, far from supporting the construction preferred by the Full Court, the existence of s 66U indicates that, absent the exemption contemplated by the section, discrimination based on public health criteria which apply to a person with an impairment is rendered unlawful. Otherwise, the facility of exemption would be unnecessary. The alleged discriminator could readily justify the discrimination as based not on the "physical" impairment but on a characteristic of the impairment which justified the discrimination. The present case is a good illustration of why the imputed characteristic must be taken into account in conceiving the comparator. As the Tribunal found, the respondents allowed their actions to be influenced by prejudicial stereotyping of the very kind to which s 66A(1) is directed. The section should not be read in a way which could destroy its effectiveness.

5.

A third basis upon which the Full Court supported its decision was by reference to the reasoning of the New South Wales Court of Appeal in Boehringer Ingelheim Pty Ltd v. Reddrop ^[F210] . That decision has been subjected to academic commentary and criticism ^[F211] . But in the Court of Appeal, it has now been made clear that Reddrop did not turn upon the general characteristics of a person based on an unlawful ground (eg that married women are prone to disclose confidences to their husbands) but upon a particular characteristic which was unique to the complainant in that case (viz that her husband was employed by a competitor of the alleged discriminator) ^[F212] .

I accept that minds might differ upon the proper approach to the construction of s 66A(1) of the Act. However, my own view is that no error of law was shown in the approach either of the Tribunal or of the primary Judge. To hold otherwise is to accept that the Act on the one hand acknowledges the way in which people discriminate undesirably on the ground of stereotyped characteristics whilst withholding a remedy where much discrimination is shown. Because that cannot have been the intention of Parliament, it is not the construction of s 66A(1) which I would favour.

The two bases upon which the Full Court overturned the decision of the Tribunal and of the primary Judge therefore reveal error. This conclusion would ordinarily require that the decision of the Tribunal be restored. However, the respondents sought to uphold their success in the Full Court upon three grounds raised in their notice of contention.

The services issue

By the Act it is unlawful for a person who "provides goods or services, or makes facilities available" to discriminate against another on the ground of the other's impairment "by refusing to provide the other person with those goods or services or to make those facilities available to the other person" ^[F213] . The question is whether anything the appellants did amounted to a refusal of "services" or "facilities".

The Macquarie Dictionary defines "service" as meaning "an act of helpful activity"; "the supplying ... of any ... activities, etc., required or demanded"; "the providing ... of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying ... of water, gas, or the like to the public"; and "the performance of any duties or work for another". The Oxford English Dictionary is to like effect: "work done to meet some general need"; "the action of serving, helping or benefiting"; "conduct tending to the welfare or advantage of another". The concept of "services" is therefore an extremely wide one. It is by no means confined to the provision of tangible things. Its meaning is to be derived from the context. In a complaint of discrimination in relation to the provision or refusal of "services", this Court has already emphasised the importance of identifying the relevant "services" in sufficiently concrete terms to enable the decision-maker to determine whether or not there has been the unlawful refusal to provide the "services" as alleged ^[F214] . Yet characterising the "service" in question can itself involve the acceptance of a definition which will effectively determine the complaint of discrimination according to whether a wide or narrow focus is adopted ^[F215] . The word should be given its meaning in the context, and for the purposes, of the legislation in question.

The Tribunal referred to a number of earlier Australian decisions on the meaning of "services" in anti- discrimination legislation ^[F216] . In the context of governmental activities, it drew a distinction between doing of things helpful to, or needed by, the public (which would be a "service") and the gathering of information to assist in the formulation of government policy ^[F217] (which would not). After a review of English cases ^[F218] , the Tribunal concluded that "administering a town planning scheme" and "implementing or enforcing measures directed to the amenity of the area" involved the provision of "services" by the City to its residents. Specifically, the exercise of a discretion to give planning approval to allow the use of premises for a particular purpose was part of the City's planning services and within the Act ^[F219] .

The primary Judge agreed. He saw nothing in the facts or in the statutory text to warrant a narrow view of "services of the kind provided by government, including local government" ^[F220] . He regarded it as "clear that the provision of an approval of a town planning application ... would be to provide a service" ^[F221] .

The same view was taken by the Full Court. Ipp J examined closely the powers of the City to approve a change in use ^[F222] . He made the remark already cited about the way in which the powers to give or withhold town planning approvals and licenses had historically been abused by their exercise on discriminatory grounds. He rejected the respondents' arguments. Scott J had "little difficulty" in reaching the same conclusion ^[F223] . The provision of a permit by the City, necessary for the change of use requested, constituted the provision of "services" in the sense used in the Act. Wallwork J, did not deal with the point.

Before this Court, the respondents contested all of these conclusions. Because, under the Act, appeals from the Tribunal lie only on a question of law ^[F224] , the respondents had to say that the view of the word "services" adopted below was not simply unduly broad. It was not open. This was not a matter upon which minds might reasonably differ, even perversely in the view of another ^[F225] . It was a matter upon which the "only reasonable view" ^[F226] was that "services", in the context, had a meaning different from that ascribed to it at every level of decision-making before the case reached this Court.

In support of their arguments, the respondents advanced a number of propositions:

1.

The making of a decision by a donee of statutory power would not ordinarily be thought of as the provision of a "service". Exercising that power to grant or refuse approval to develop a site involved no more than the discharge of a statutory discretion by reference to lawful considerations appropriate to the conferral of the power. A decision to grant approval would render the proposed conduct lawful where otherwise it would not be. Such a decision was not aptly described as an "act of helpful activity". If refused (as lawfully it might be) it would be an extremely unhelpful activity. If, contrary to the primary submission, the exercise of the power was to be classified as the provision of a "service", the only "service" required by law was the making of a decision. There was no requirement that the decision itself should be helpful to the applicant. On the contrary, in particular cases, the law or the circumstances might permit, or even require, the opposite.

2.

This narrower view of "services" gained some support from the context in which the reference to "services of the kind provided by ... a local government body" appeared in the definition in s 4(1) of the Act. The kinds of "services" there referred to involved activities typically helpful to the recipients - banking, insurance, entertainment, transport and professional or trade services. Local government bodies also provide such services, eg libraries, recreational and parking facilities, gas, water, transport and the like. From the context these were the kind of "services" of a "local government body" to which the Act was intended to apply; not the quasi-legislative, evaluative decision-making required by law of the council of the local government body, performing its functions as such.

3.

The context within which s 66K appears in the Act throws some light on the meaning of "services" in that section. Thus, where Parliament intended that an evaluative decision, of the kind performed by the Council of a local government body, should fall within the prohibition, it provided in clear terms, as in s 66G. The respondents submitted that the exceptions afforded by the Act to the application of Part IVA ^[F227] were not apt to apply to a Council decision to grant or refuse development approval. Nor was the making of such a decision easily encompassed by the notion of providing the service. It was argued that the word "provides" reinforced the inferences to be drawn as to the nature of the "services" in the context of the definition.

4.

Whilst generalities about the evils of discrimination on unlawful grounds by local government bodies might be accepted, provisions of the Act rendering conduct unlawful should not be treated as open-ended. The statutory language should not be stretched to render unlawful that which was not clearly made so by the Act.

I acknowledge the force of these arguments. I do not pretend that, in this or in other respects, the meaning of the Act is unarguably clear. However, alike with the Tribunal, the primary Judge and the Full Court below, I am of the view that the better construction of the word "services", read in its context, is that it includes the provision by a local government body, such as the Council, of a planning decision to alter the permissible use of premises, without which such use would be unlawful. My reasons are as follows:

1.

The attempt to confine the "services" provided by a local government body to services such as library, recreational, or parking services, or the provision of gas, water, etc is unduly to narrow the "kind" of services which "a local government body" typically affords. Such narrowing is not required either by the juxtaposition of "services" with "goods" and "facilities" or by the use of the verb "provides". The Act is designed to have a wide application. Repeatedly it has been emphasised that, to permit the achievement of its objectives, the Act should be given a broad and purposive construction ^[F228] . A narrow construction of the word "services" would frustrate the intended operation of the Act which is not penal but educative, compensatory and ameliorative in character.

2.

The specific inclusion within the definition of "services" of those "provided by ... a local government body" indicates a purpose to extend the application of the Act to a broad range of activities of such bodies. It would be unreasonable to expect Parliament to specify, with particularity, the whole gamut of "services" which such bodies afford. Hence the choice of the broad expression "services of the kind provided". The only common link between the "services" specified in the definition is that they are all activities helpful to the persons using them. In the case of par (d) of the definition, it will often be the case that the advice provided by "members of any profession or trade" will, in the particular case, be adverse to the wishes and interests of the user of those services. This does not make them any less the provision of "services". Thus the mere fact that a decision of a local government body might sometimes be adverse to the user of its services is not determinative of the character of the activities as "services". All that the Act requires is that the "services" should not be refused "on the ground of the other person's impairment" ^[F229] .

3.

The fact that governmental "services" are expressly included amongst those to which Parliament has extended the application of the Act sufficiently indicates the legislative purpose of providing protection against unlawful discrimination in the provision of services of that nature. It suggests recognition of the particular dangers of discrimination which might, in any case, invalidate the relevant governmental decisions because of the inclusion of a ground or reason irrelevant to the lawful exercise of the power. Case reports and common experience suggest that local government activities can be a means of discrimination precisely because of the way in which councillors (as in this case) reflect the stereotyping prejudices of the community by whom they are elected. It must be inferred from the express extension of the Act to "services of the kind provided by ... a local government body" that Parliament set its face against such discrimination. There are strong reasons of principle why a higher, and not a lesser, standard should be expected of such bodies in the performance of functions that may be characterised as the provision of governmental "services".

4.

From the point of view of the user of the town planning services provided by the City (the local government body in question here) the "services" in question are the provision of the permits or licences to develop premises for a use different from that for which they have been zoned. It does no offence to the overall scheme of the Act to apply it to such a case. On the contrary, the opposite construction of the word "services" withdraws the beneficial application of the Act from an important area of a local government body's activities in which it is not at all surprising that the Act should apply. In short, given the express extension of the Act to activities of a local government body, it would be more surprising that the Act should not apply to the determination of a planning application than that it should.

5.

Many cases, in Australia and in overseas jurisdictions, have expanded the notion of "services" to include a variety of governmental services. Some of these have been held to include the making of decisions under or pursuant to legislation ^[F230] . A trilogy of English cases was referred to ^[F231] . Unfortunately, the judicial opinions expressed in them reflect the differences which have now emerged in this Court. My own preference is for the approach of Lord Denning MR and Templeman LJ in Savjani v. Inland Revenue Commissioners ^[F232] and of Lord Scarman (Lord Brandon of Oakbrook concurring) in R v. Entry Clearance Officer; Ex parte Amin ^[F233] . Their Lordships were affected, as I am, by the clearly expressed intention of Parliament to apply the Act to the supply of services by government. In Ex parte Amin, Lord Scarman rejected the narrower construction of the words "provision of ... services" because of the context in which the phrase appears in the English Act and because of the purposes of that Act. A similarly broad meaning has been favoured for the words "service" or "services" in different contexts in Canadian ^[F234] , United States ^[F235] and Indian ^[F236] court decisions. This Court has a choice. Like the Tribunal, and the courts below, it should prefer the broad definition of "services". It can more safely do so because some services of the City are clearly within the statutory definition. The provision of permission to change a planning use is capable of being a "service". It can undoubtedly be helpful and valuable to the recipients. A refusal to provide it, on a ground of unlawful discrimination, is plainly the kind of conduct which the Act was designed to discourage and redress. Just as governmental services have changed, by expansion and, in recent times, contraction ^[F237] , so it is undesirable to impose a narrow meaning on the word "services" used in this context. Unless the City's permission were granted, the consequent services and facilities of the City, the subject of town planning, would not be provided to the applicant. Such a result would flow from the refusal to make the service of planning permission available. If the refusal were "on the ground of" the applicant's impairment, that would be contrary to the Act.

6.

In the case of doubt, a court limited to correcting errors of law should withhold relief grounded in nothing more than a narrower view of the concept of "services" than that which found favour before the Tribunal to which factual decisions are exclusively committed. If a refusal to approve the change of use was capable of constituting the refusal of a "service" no error of law would be shown ^[F238] . It would be no more than a different view about the denotation of a word upon which, in particular contexts, opinions have already differed. In the present context a unanimous view has hitherto been expressed favourable to the appellant. Given the inherent scope for differences about the ambit of the Act and the limitation which it imposes upon appeals, a measure of restraint is proper before a contrary impression is converted into an appellate order correcting an error of law. The appellant did not at any time suggest that the Council of the City was his "servant" in making its decision. But he insisted that it should not be the servant of the prejudices of its members. The word "service" is wide enough to sustain the appellant's submission. On this point the Tribunal and the courts below were, all of them, correct. This Court should not adopt a narrower meaning.

I would reject the respondents' first contention.

The entitlement issue

The respondents' second contention was that, if the rejection by the City of the application made to it by PLWA was a refusal to provide services, it was only a refusal to provide services to PLWA, which was not impaired. Accordingly, there was no entitlement in the appellant to assert discrimination against himself on the ground of his impairment for there was no refusal to provide any "services" to him. The appellant was therefore not an "aggrieved person" within the terms of s 66A(1) of the Act.

It was common ground that the Act had been amended in 1992 in such a way as to remove this suggested difficulty for the future ^[F239] . However, this appeal must be determined in accordance with the Act as it stood before that amendment. A number of associated problems which arose after PLWA ceased to be a party were noted in the Full Court ^[F240] . They have not been pressed in this appeal.

This contention as to IW's entitlement also failed at all levels of the proceedings below. In the Tribunal it was pointed out that, as an incorporated association, PLWA could not physically occupy the premises nor suffer an "impairment" within the meaning of the Act. Only its members could do so. As, by its rules, all members of PLWA, including the appellant, were necessarily infected with HIV (and so suffered the relevant impairment), the discrimination against PLWA was (and was known to be) discrimination against its members including the appellant. The Tribunal paraphrased what was said by Stephen J in Koowarta v. Bjelke-Petersen ^[F241] :

"[I]t is not to the point that as a matter of form, what the Council withheld was approval of an application by the incorporated body of which the Complainants were members. And nor was it necessary for the Council to have known of the individual Complainants personally; it was enough that there was an awareness of the group of persons who were to benefit from the approval and that the Complainants were in fact members of that group" ^[F242] .

The primary Judge agreed with this approach. In the context of the Act, he had no doubt that a person such as the appellant was an "aggrieved person" ^[F243] . By refusing to provide "services" to the inanimate association (PLWA), the City was knowingly refusing to provide those services to a person such as the appellant. The problems which might arise in other cases did not arise here because of the assimilation of the Association and persons such as the appellant ^[F244] . In the Full Court, Ipp J agreed with the primary Judge. His Honour held that to adopt the narrow construction would make it impossible for discriminatory conduct to occur where there was a refusal to provide services to a corporate body which could not be itself "impaired" ^[F245] . As this approach would subvert the intended operation of the Act, it should be rejected. Wallwork J did not deal with the point. Scott J favoured the construction urged by the respondents ^[F246] .

The resolution of this contention is not to be reached by an automatic application of the holding of this Court in Koowarta ^[F247] . That case turned upon the legislation which was there in question. That legislation contained a special definition of the "second person", the subject of the relevant discrimination, sufficient to extend the scope of the Act to "any relative or associate" ^[F248] . There was no equivalent to that statutory extension to avail the appellant in this case.

That said, some of the comments made in Koowarta ^[F249] involve applications of a more general principle. Two points relevant to the present question may be discerned. First, the fact of corporate personality should not be applied to subvert the purpose of the legislation designed, as it is, to protect individuals against discrimination. Secondly, in applying rights- protective legislation, such as the Act, courts will look to the actual effect of the alleged discriminatory conduct rather than only to its formal legal impact. Expressing these principles in Koowarta in the context of the Racial Discrimination Act , Stephen J said ^[F250] :

"While it is not certain that when he refused approval of the transfer the Minister knew of the existence of Mr Koowarta, he clearly knew that the property was to be occupied by Aborigines. That was the very ground for his refusal. ... It is not, I think, to the point that, as a matter of form, what the Minister withheld was approval of a transfer to the Aboriginal Land Fund Commission. The Minister's reasons for refusal disclose that he regarded approval as involving use of the property by Aborigines and refusal of approval as preventing that use."

Now apply the foregoing to the present circumstances. In the case of an incorporated association such as PLWA, acting on behalf of its members, all of whom were necessarily "impaired", it requires no surgery to treat the refusal to provide services to the association as a refusal to provide them to the members. Difficulties could certainly arise where there was not such an exact identity between the members and the corporate applicant. But those difficulties do not arise in this case. It was at all times clear that the application for planning approval was made by PLWA for the benefit of its members, including the appellant. The purpose of the provision of corporate personality to an association such as PLWA was, relevantly, the avoidance of the problems which might otherwise confront an unincorporated association in its dealings with outside entities ^[F251] . Incorporation allowed such an association to act in the interests of its members with whom it maintained a contractual relationship ^[F252] . Its purpose was not to deny the application of rights-protective legislation to those members.

In any case, the respondents' submission rests upon the questionable assumption that qualification as an "aggrieved person" within the terms of s 66A(1) of the Act required demonstration of a unity of identity between the person suffering the relevant impairment and the person seeking the refused service. But the language of s 66K(1) does not require this. An "aggrieved person" under s 66K(1) of the Act is one who can demonstrate that he or she has been discriminated against on a relevant ground. When elaborated by s 66K(1), an "aggrieved person" is one who can show that the occasion for such discrimination was a refusal of "services". In these circumstances I agree with Ipp J that ^[F253] :

"[A] person can refuse services to another even if the other person does not expressly ask that the services be provided. I would have thought it all too obvious that persons, who announce publicly that they will refuse to provide services to an identified group of impaired persons, would thereby be refusing to provide those services to the individual members of the group. That would be the case even though none of the individual members requested that the services be provided."

Section 66K(1) of the Act does not make unlawful a discriminatory refusal to provide a service to the person requesting that service. It makes unlawful a refusal to provide a service to a person in a discriminatory manner. It does not qualify that prohibition in any way by requiring that the discrimination be against the actual person who requested that the service be provided. To read such a requirement into the section would significantly narrow its operation. The Act should not be glossed.

Once the words of s 66K(1) of the Act are given their ordinary meaning, the fact that it was the corporation which actually requested the service is beside the point. The refusal of the service to the corporation was, in effect, necessarily a refusal of a service to its members, including the appellant. This is all that the Act requires a complainant to demonstrate. The appellant succeeded in doing so. He was thus an "aggrieved person" within s 66A(1) of the Act.

The construction of s 66K(1) of the Act which I favour is all the more persuasive when the practical effect of the contrary interpretation is considered. That interpretation necessarily implies that, wherever there was a refusal to provide services to a corporate body, based upon discriminatory attitudes against its members, all of whom suffer the relevant "impairment", discriminatory conduct forbidden by the Act could never be found. Such a result would seriously undermine the achievement of the purposes of the Act. It is unnecessary. It should be rejected.

The conclusion that the appellant is an "aggrieved person" within s 66A(1) is also in conformity with the ample construction given to that phrase in other rights-protective legislation. Similar formulae have long been employed in a wide variety of statutory contexts in many jurisdictions and elaborated by much decisional law. Such words are most commonly used to define a class of persons who will have the necessary standing to bring proceedings in identified circumstances. The meaning ascribed to the expression was formerly confined to describing a class of persons suffering a particular legal grievance ^[F254] . However, a contrary intention might appear from the context ^[F255] . Thus, it was said in Sevenoaks Urban Council v. Twynam ^[F256] :

"The problem with which we are concerned is not, what is the meaning of the expression "aggrieved" in any one of a dozen other statutes, but what is its meaning in this part of this statute?"

Particularly in relation to the growing body of legislation providing for the challenge by "persons aggrieved" to decisions by public authorities of wide public interest or potential community impact, courts have lately demonstrated an increasing willingness to adopt a broader view of the scope of such expressions. In the Privy Council in Attorney-General of the Gambia v. N'Jie ^[F257] , Lord Denning observed:

"The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."

Australian courts have followed this approach ^[F258] . In recognition of the development of much legislation providing ample statutory rights to challenge decisions of public authorities and governmental agencies, the trend of recent case law in this country has been to give a broad operation to such provisions rather than to construe them as words of limitation ^[F259] . A good illustration of this trend may be found in Coles Myer Ltd v. O'Brien ^[F260] .

The term "[a] person who is aggrieved" was chosen to express the interest necessary to enliven the Administrative Decisions (Judicial Review) Act 1977 (Cth) ^[F261] . It has often been pointed out in that context that those words "should not ... be given a narrow construction" ^[F262] . The trend towards a broader approach to such provisions has also been remarked upon by the Australian Law Reform Commission ^[F263] . The trend has not been confined to Australia. It is also evident in Canada ^[F264] , India ^[F265] , New Zealand ^[F266] and the United States ^[F267] .

These developments help to confirm the approach which I favour holding that the appellant is an "aggrieved person" within the provisions of the Act in question here. Those provisions appear in legislation with the stated objective "to eliminate, so far as is possible, discrimination against persons on the ground of ... impairment in the areas of ... facilities and services" ^[F268] . That objective would not be promoted by a narrow approach to the meaning of "aggrieved person" for which the respondents contend. Such a construction should be rejected.

The councillors' issue

Finally, the individual respondents argued, that they were not personally liable in respect of the unlawful discrimination found against them. They relied on the provisions of s 680 of the LGA which is set out in the reasons of Dawson and Gaudron JJ. They submitted that no "intentional misconduct or ... negligence" on their part was found. Nor did the facts, as determined by the Tribunal, support a conclusion that such aggravating features of their conduct were present. Still less, in the absence of specific findings, did the facts found require that conclusion as the only one available.

The state of the record on this point is unsatisfactory. It was conceded for the appellant that the points of defence before the Tribunal had raised the councillors' claim of immunity based on s 680. It was also conceded that the issue had been litigated before the Tribunal and "argued in some detail" ^[F269] . Despite careful attention to so many other issues, the Tribunal appears to have overlooked this one. There is considerable discussion in the Tribunal's reasons concerning the liability of the individual respondents who were found to have voted against the application on the ground of the impairment of the members of PLWA. All but one of those respondents were found to be personally liable upon the ground that each of them had advertently "caused" or "aided" the City to do the unlawful discriminatory act. The remaining councillor (Cr Nattrass), who had spoken but not voted, was found to have "aided" the City to commit the act of unlawful discrimination. In this respect, the Tribunal relied upon s 160 of the Act. Although the application of that section was challenged below, it has not been contested in this Court. It will be assumed that it provides a basis for rendering each of the individual respondents liable under the Act for the unlawful discrimination found against them. Each was thus, on the face of things, open to the orders made for the payment of compensation.

That leaves the question whether such liability is excluded by the special provisions of s 680 of the LGA. The notice of appeal to the Supreme Court from the Tribunal raised the application of s 680 ^[F270] . The ground was addressed by the primary Judge ^[F271] . He pointed out that no authority had been cited in support of the submission. For two reasons he held that the section did not apply to confer the immunity claimed. The first was that the actions of the members of the Council could not, within the terms of the LGA, be "an act done by the Council in the execution and performance of the powers and duties conferred upon it" ^[F272] . This was so because no power or duty was conferred upon the Council to authorise the performance of an unlawful act on the part of a member of the Council. Secondly, his Honour held that the exemption provided by s 680 assumed the lawful execution and performance by the Council of its powers and duties. As found, the performance in question was affected by the unlawful consideration which determined the vote of the named councillors. The section could not, therefore, operate to exempt those councillors from their personal liability.

Although the point was carried forward in the appeal to the Full Court it was not decided there. The respondents were relieved of the orders made against them upon the reasons already examined.

The decision of the primary Judge was given after, but made no reference to, the decision of this Court in Webster v. Lampard ^[F273] . That case concerned another exempting provision in Western Australian legislation, namely the Police Act 1892 (WA), s 138 (h). That section provides that "[n]o action shall lie against any ... Officer of Police ... on account of any act, matter, or thing done ... in carrying the provisions of [the Police] Act into effect ... unless there is direct proof of corruption or malice" ^[F274] . Summary judgment was given against a plaintiff who sued a police officer who had pleaded that, at the relevant time, he was "acting in good faith and without corruption or malice". This Court unanimously upheld the appeal against that summary order. It emphasised that the general onus of establishing a connection between the conduct complained of and the protected official duty rested (in the absence of special legislative provisions) upon the defendant invoking the defence ^[F275] . The onus of establishing that the defendant's ostensible pursuit of public duty was actuated by a wrong or indirect motive rested upon the plaintiff asserting that contention ^[F276] . The Court emphasised that it was inappropriate to deal with the issue in an abstract way. There had to be some factual basis for the belief. Until the relevant dispute of fact (in that case the belief of the police officer) was resolved, the matter was not one appropriate for summary judgment ^[F277] .

In the course of its consideration of Webster , this Court referred to several authorities in which protective provisions, designed to exclude the liability of public officials, had been examined ^[F278] . Reference was made to G Scammell & Nephew Limited v. Hurley ^[F279] where the English Court of Appeal upheld an appeal by councillors against a judgment that they had conspired to induce their Council to breach its statutory duty by discontinuing the supply of electricity for power and lighting to the plaintiff. The councillors relied on the provisions in the Public Authorities Protection Act 1893 (UK). In the Court of Appeal, Scrutton LJ said ^[F280] :

"[W]hen a defendant appears to be acting as a member of a public body under statutory authority and pleads the Public Authorities Protection Act , the plaintiff can defeat that claim by proving on sufficient evidence that the defendant was not really intending to act in pursuance of the statutory authority, but was using his pretended authority for some improper motive, such as spite, or a purpose entirely outside statutory justification. When defendants are found purporting to execute a statute, the burden of proof in my opinion is on the plaintiffs to prove the existence of the dishonest motives above described and the absence of any honest desire to execute the statute, and such existence and absence should only be found on strong and cogent evidence."

The clear purpose of s 680 of the LGA is to afford a high measure of protection to a member of a council of a local government body. The section should not be given a narrow construction. Such members of councils are, and are intended to be, drawn from a wide cross-section of the community. Inevitably, they reflect the variety of opinions, attitudes and prejudices which exist in the community. If a narrow construction of s 680 of the LGA were upheld, it could inhibit the participation in the activities of the councils of local government bodies of many ordinary citizens who could not afford the risk that their conduct would render them personally liable, although they were attempting and purporting to discharge the performance of their duties of office.

According to the findings of the Tribunal in this case, those councillors who came from the ward in which the subject premises were situated, voted as they did because they conceived it to be their duty to reflect the wishes of the majority of the ratepayers, as they understood them to be. It is inevitable, in the case of elected office- holders, that they would often feel pressure to act in such a way. To construe s 680 so as to give protection only to the lawful execution and performance, or non-performance, of the duties of a council member would, in my opinion, unduly narrow its intended operation. For performance or non-performance which is lawful, the councillor would ordinarily need no protection. The utility of such a provision really arises only where the performance or non-performance has been affected by an erroneous or unlawful consideration. It must be assumed that the protection of the section was intended to apply to such a case.

The individual respondents complain that the findings made by the Tribunal about their conduct were not specifically addressed to the issue tendered by their defence based on s 680 . Although the Tribunal made quite detailed findings about the motivations of individual council members, it did not turn its attention to whether they, or any of them, had been "guilty of wilful or intentional misconduct or of negligence". Whilst negligence might safely be ignored in the facts of this case, the wilfulness or intentional character of any "misconduct" on the part of the individual council members in casting their vote as they did in an unlawful way (as I have found) was never the subject of a finding by the Tribunal. Yet it is the only body with the authority to make any relevant factual findings. Only if a court could hold that s 680 had no possible application or that the evidence permitted but one conclusion, could this apparent oversight of the Tribunal, in failing to address this issue, be cured on appeal.

The decision in Webster emphasises the importance of applying exempting provisions such as s 680 of the LGA only after the relevant factual findings are made. As they were not made in this case, although the issue was tendered for decision, an error of law has occurred in the Tribunal. It is one which was complained of to the Supreme Court. Because the primary Judge took a view of s 680 which was unduly narrow an error of law has occurred which the Full Court failed to address. This Court should now do so because it cannot confirm the order of dismissal entered by the Full Court. Neither can it make the necessary factual finding for itself. Nor can it uphold the immunity claimed upon the basis that only one factual finding was open.

Despite the further extension of this litigation, criticised by the Tribunal as "exceptionally long and unfortunate" ^[F281] , there is no alternative, in the opinions which I hold, but to return the proceedings to the Tribunal so that it can give such relief to the individual respondents on this point of their defence as is required by law. The power of the Supreme Court to return proceedings to the Tribunal in the circumstances is clearly provided for ^[F282] . It should be exercised in this case.

Conclusion and orders

The appellant is entitled to succeed in the appeal in the case between him and the City of Perth. In those proceedings the appeal should be allowed with costs. The orders of the Full Court of the Supreme Court of Western Australia should be set aside. In lieu thereof, it should be ordered that the appeal to that Court be dismissed with costs. The order that the City pay the appellant the damages ordered by the Tribunal will thereby be restored.

In the proceedings between the appellant and the individual (second to seventh) respondents, the appeal should also be allowed. The orders of the Full Court of the Supreme Court of Western Australia should be set aside. In lieu thereof, it should be ordered that the appeal to that Court by the said respondents should be allowed. The judgment of Murray J should be set aside. In place of his Honour's orders, it should be ordered that the proceedings be returned to the Equal Opportunity Tribunal to determine, conformably with law, the defence of those respondents based on s 680 of the LGA.