I W v CITY OF PERTH & OTHERS

(1997) 191 CLR 1

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(Judgment by: Brennan CJ, McHugh J)

I W v CITY OF PERTH & OTHERS

Court:

Judges:
Brennan CJ, McHughDawson, 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

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Judgment by:
Brennan CJ, McHugh J

The principal question in this appeal is whether the City of Perth unlawfully discriminated against an association incorporated under the Associations Incorporation Act 1987 (WA) by refusing planning approval for the use of premises for persons infected with the Human Immunodeficiency Virus ("HIV") which can lead to Acquired Immune Deficiency Syndrome ("AIDS").

The appeal is brought against an order of the Full Court of the Supreme Court of Western Australia which held that the Equal Opportunity Tribunal of that State had erred in law in finding against the City of Perth ("the City") on that issue. Section 66K(1)(a) of the Equal Opportunity Act 1984 (WA) ("the Act") provides that it is unlawful for a person who provides services to discriminate against another person on the ground of that person's impairment by refusing to provide that person with those services. The appellant is a member of the association, People Living With Aids (WA) Inc ("PLWA"), and contends that he has standing to bring an action for breach of s 66K(1)(a). He also contends that the City refused to approve the change of use because many of those who would be attending the premises were HIV infected and the Full Court erred in finding that the refusal was not a discriminatory refusal of a service that the Council provided to ratepayers.

PLWA seeks Council approval for a drop-in centre

In January 1990 PLWA applied to the Town Planning Committee of the City for approval for the use of the premises as a day time drop-in centre for persons who were HIV infected. Approval was needed because the premises were in an area zoned for shopping use. The City Planner reported to the Town Planning Committee that the proposed use was compatible with the requirements of the City Planning Scheme and would not adversely affect the amenity of the area. He recommended that the application be approved. Nevertheless, on 19 February 1990, the Committee resolved to recommend to the Council that the application be refused. Later that day the Council rejected a motion to refuse the application. However, it sent the matter back to the Committee for further consideration. On 1 March 1990, the Committee resolved to refer the application to the Council for determination. By 13 votes to 12, the Council rejected a motion that the application be approved for a trial period of 12 months. The Council gave no reasons for its decision.

On 21 March 1990, PLWA appealed to the relevant Minister against the Council's decision. The Minister allowed the appeal and approved the application. PLWA, and later the appellant and two others, lodged a complaint with the Commissioner for Equal Opportunity alleging that the Council had contravened s 66K of the Act.

The statutory provisions

Section 66A is entitled "Discrimination on ground of impairment" and relevantly provides:

"(1)

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

(a)

the impairment of the aggrieved person;

(b)

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

(c)

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

(d)

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

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

(2)

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

(3)

For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition -

(a)

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

(b)

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

(c)

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

The appellant relies on s 66A(1) which is concerned with direct discrimination rather than s 66A(3) which is concerned with indirect discrimination ^[F1] .

Section 66K is entitled "Goods, services and facilities" and relevantly provides:

"(1)

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

(a)

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

(b)

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

(c)

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

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

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

Section 4(1) defines "impairment" as follows:

"'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 history of the litigation

Where the Commissioner for Equal Opportunity believes that a complaint cannot be resolved by conciliation, s 93(1) of the Act requires him to refer the complaint to the Equal Opportunity Tribunal which is established by s 96. In accordance with s 93, the Commissioner referred the complaint of PLWA and the other parties to the Tribunal. After a nine day hearing, the Tribunal held that the Council (and thus the City) had discriminated against the complainants ^[F2] . The Tribunal found that the votes of five councillors who constituted the majority of 13 were "grounded on the AIDS factor" and that another councillor who did not vote had encouraged councillors to vote against the motion "because of the AIDS factor". These six councillors are the second to seventh respondents to the present appeal. The Tribunal held that the votes of five of these six councillors were "causative in terms of the decision of the Council ... in that but for them that decision would not have been made."

The Tribunal made orders under s 127(b)(i) requiring the respondents to pay the appellant and other parties damages by way of compensation for loss or damage suffered by reason of their conduct.

The Council and the second to seventh respondents appealed ^[F3] to the Supreme Court of Western Australia. Murray J heard and dismissed the appeal ^[F4] . But on further appeal the Full Court of the Supreme Court of Western Australia (Ipp, Wallwork and Scott JJ) held that the Tribunal had erred in law ^[F5] . Ipp J held that the test for discrimination on the grounds of impairment required a comparison between the way in which the aggrieved person was treated and the way in which "in the same circumstances, or in circumstances that are not materially different" the alleged discriminator has treated or would treat some person not having the impairment ^[F6] . His Honour held that the comparison is between the treatment of the impaired aggrieved person and a notional person who does not have the impairment as defined, but who has one or more of the characteristics set out in s 66A(1)(b) to (c) or the requirement set out in s 66A(1)(d). The Tribunal failed to apply this test. Accordingly, his Honour held that the Tribunal had erred in law in reaching its decision. His Honour also held that the states of mind of the five councillors could not be attributed to the City because only a state of mind possessed collectively by a majority of councillors voting could be attributed to the City. The state of mind of an individual councillor was relevant only to the extent that it was a state of mind common to all those councillors who voted against the application ^[F7] . Accordingly, the City had not committed an unlawful act under s 66K(1) of the Act.

Wallwork J also held that the states of mind of the five councillors could not be attributed to the City ^[F8] .

Scott J held that only PLWA, and not the individual complainants had been refused services. His Honour also held that the Tribunal had misdirected itself on the comparison issue for reasons broadly similar to Ipp J. Scott J declined to deal with the state of mind issue because, the Council having given no reasons, the true ground of its decision could not be ascertained ^[F9] .

The critical issue

The appellant contends that the judges of the Full Court erred in their reasons for holding that the City had not discriminated against the appellant on the ground of his impairment. In our opinion, it is not necessary to deal with the issues raised in the Notice of Appeal because one of the grounds relied on in the respondents' Notices of Contention should be upheld. That ground is that, on the proper construction of the Act, the Council did not refuse to provide a service within the meaning of s 66K(1) of the Act.

The meaning of "services"

The term "services" has a wide meaning. The Macquarie Dictionary relevantly defines it to include "an act of helpful activity"; "the providing or a provider 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 or the supplier of water, gas, or the like to the public"; and "the duty or work of public servants". But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop.

Section 4(1) of the Act contains an inclusive definition of services. It provides that unless the contrary intention appears:

"'services' includes -

(a)

services relating to banking, insurance and the provision of grants, loans, credit or finance;

(b)

services relating to entertainment, recreation or refreshment;

(c)

services relating to transport or travel;

(d)

services of the kind provided by members of any profession or trade;

and

(e)

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

Section 18 of the Interpretation Act 1984 (WA) requires preference to be given to the construction of a written law that would promote the purpose or object underlying that law to a construction that would not promote that purpose or object. One of the objects ^[F10] of the Act is:

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

Consequently, the provisions of the Act should as far as possible be given a construction that would eliminate discrimination on the ground of impairment.

In applying s 18 of the Interpretation Act, however, it must be kept in mind that the Act, like many anti-discrimination statutes, defines discrimination and the activities which cannot be the subject of discrimination in a rigid and often highly complex and artificial manner ^[F11] . As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the Act. The object referred to in s 3(a) of the Act must, therefore, be understood by reference to the definitions of discrimination which occur in various parts of the Act.

The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction ^[F12] . It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical" ^[F13] . Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act.

Did the Council provide a service of giving planning approval?

As the definition of services in s 4 recognises, councils provide services to the ratepayers and residents of their municipality or borough. The collection of garbage and the supply of water, gas and electricity are common examples of services which councils, depending on their statutory powers, provide to ratepayers and others. Discrimination in the provision of these services is unlawful under the Act. Moreover, in an appropriate case allowing the use of property or facilities owned by or under the control of the Council may constitute the provision of a service by that Council. Providing use of libraries, parks and sporting facilities, for example, may constitute the provision of a service which attracts the operation of the Act. So too may the provision of intangibles such as advice and information in respect of building and town planning matters.

Furthermore, the Act is not necessarily inapplicable to a council activity because the council, acting as a deliberative body, makes a decision refusing to provide the relevant service or because the refusal is made in the exercise of a statutory power or duty. Thus, in Attorney General of Canada v. Cumming ^[F14] , Thurlow ACJ accepted that in assessing taxes under the Income Tax Act ^[F15] the Department of National Revenue was engaged in the provision of services within the meaning of s 5 of the Canadian Human Rights Act ^[F16] . Similarly, in Savjani v. Inland Revenue Commissioners ^[F17] , the English Court of Appeal decided that the Inland Revenue was providing "services" to the public in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction for a dependent child and in disseminating and giving advice to taxpayers to enable them to claim that tax relief. Templeman LJ said ^[F18] :

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

In R v. Entry Clearance Officer; Ex parte Amin ^[F19] , however, the House of Lords (by a 3-2 majority) held that a clearance officer who vetted aspiring immigrants to the United Kingdom was not providing a facility or service within the meaning of s 29(1) of the Sex Discrimination Act 1975 (UK). Lord Fraser of Tullybelton, with whose speech Lord Keith of Kinkel and Lord Brightman relevantly agreed, said ^[F20] that the entry clearance officer was "not providing a service for would-be immigrants; rather he was performing his duty of controlling them." Lord Fraser said ^[F21] that, properly viewed, Savjani turned on the finding that the Inland Revenue "performed two separate functions - first a duty of collecting revenue and secondly a service of providing taxpayers with information." In our view that is the correct explanation of that decision.

In Farah v. Commissioner of Police of the Metropolis ^[F22] , the English Court of Appeal held that those duties of a police officer that involve assistance to or protection of the public constitute "services to the public" for the purposes of the Race Relations Act 1976 (UK). Otton LJ said ^[F23] :

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

Otton LJ also said ^[F24] that, like Templeman LJ in Savjani ^[F25] , he would "be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act." With respect, while we think that Farah was rightly decided, that is not the correct approach in determining questions under the Equal Opportunity Act 1984 (WA). In a case like Farah, the first question is whether the activity which the person refused to provide is capable of being regarded as a service which that person or his or her employer provides to other citizens. If it is, and a holding to that effect would promote the objects of the Act, then the court or tribunal should hold that it is a service within the meaning of the Act. But, given the artificial definitions of discrimination in the Act and the restricted scope of their applications, the court or tribunal should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The Act is not a comprehensive anti-discrimination or equal opportunity statute. The legislature of Western Australia, like other legislatures in Australia and the United Kingdom, has avoided use of general definitions of discrimination such as the one that Gaudron and McHugh JJ gave in Castlemaine Tooheys Ltd v. South Australia ^[F26] and to which McHugh J referred in Waters v. Public Transport Corporation ^[F27] :

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

Those legislatures have also deliberately confined the application of anti-discriminatory legislation to particular fields and particular activities within those fields.

No doubt most anti- discrimination statutes are legislative compromises, resulting from attempts to accommodate the interests of various groups such as traders, employers, religious denominations and others to the needs of the victims of discrimination. As the evils of discrimination in our society have become better understood, legislatures have extended the scope of the original anti-discrimination statutes. Many persons think that anti- discrimination law still has a long way to go. In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope. But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory.

Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such "legislative" acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community.

Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a "service" in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of Part IVA of the Act.

Section 66A provides that a person does not discriminate on the ground of impairment in providing a service unless that person "treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment." This section makes it clear that the "services" to which s 66K refers are those services which are provided or would be provided to other individuals in the same or like circumstances. The fact that the public or a section of the public benefits from the operation of an activity or the execution of a process of a council does not necessarily mean that the council provides a service for the purposes of the Act. To succeed in a claim under s 66K(1)(a) of the Act, the aggrieved person must establish that he or she has been refused a service that the alleged discriminator provides or would provide to another person in the same circumstances or circumstances that are not materially different.

In the present case, the Tribunal held that the administration of the town planning scheme was itself a service. The Tribunal said:

"Taking the 'broad view', there can be no doubt that in administering a town planning scheme within its municipal area, regulating the use of land to the best possible advantage, securing provision for traffic and the other factors mentioned in s 2 [of the Town Planning and Development Act 1928 (WA)] and clause 5 of the City Planning Scheme, and generally implementing or enforcing measures directed to the amenity of the area, the municipality of the City of Perth is providing a service to residents. In this context, the exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality is part of that service and is itself a 'service' within the meaning of s 4(1) of the Act. The statutory definition is inclusive, not exclusive, and where it is reasonably capable of having a sufficiently wide meaning to encompass a situation which would prima facie advance the objects and purposes of the Act, that interpretation is to be preferred (see eg N M Superannuation Pty Ltd v. Young ^[F28] )." [emphasis added]

Adopting this analysis, the appellant contends that, in performing its functions as responsible authority for the purposes of the relevant town planning scheme, the City was providing services of the kind provided by a public authority or a local government body within the meaning of par (e) of the definition of "services" in s 4(1). He contends that "the refusal to approve the change of use was clearly capable of constituting the refusal of a service." He submits that, if approving a change of use was capable of being a service, then the Tribunal had not erred in law ^[F29] in finding as a fact that the City had refused to provide a service for the purpose of the Act. In our opinion, this submission must be rejected because the City did not provide any service of giving planning approval.

In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides ^[F30] . The appellant does not assert, and the Tribunal did not find, that the relevant service which the City provides was the consideration of an application for approval. There was clearly no refusal to provide such a service. Rather, the appellant asserts that it was the refusal to approve the application that was the refusal of the service which the Council provided. However, the City did not provide any service of giving approvals. Conversely, it did not provide any service of refusing approvals. The Council, acting on behalf of the City, merely had a duty to consider applications and a discretionary power to refuse or approve those applications unconditionally or on conditions.

Clause 34(1) of the City of Perth City Planning Scheme prohibited any use or development of land including the subject premises "without first having applied for and obtained the town planning approval of the Council under the Scheme." Clause 34(5) required an application to be in the form prescribed in the First Schedule to the Scheme and to be accompanied by certain plans and information. If the Council did not convey its approval within 60 days or such further time as should be agreed upon, the application was "deemed to have been refused" ^[F31] . Clause 40(1) imposed a duty on the Council to examine applications taking into consideration such matters as "the orderly and proper planning of the locality and the preservation of the amenities of the locality", and gave it a discretion to refuse or grant the application "unconditionally or subject to such conditions as it may deem fit." Thus, the granting or refusal of an application was the end product of a deliberative process. Approval of an application no doubt conferred a benefit on an applicant. But it misdescribes the process to say that the Council provided a service of giving approvals. Certainly the process was not an " exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality ^[F32] " as the Tribunal held. Consequently, the Tribunal erred in law and the Full Court, although for different reasons, was correct in setting aside the Tribunal's decision.

The claim under s 66K(1)(c)

In the Points of Claim filed with the Tribunal, the appellant also alleged that the City exercised its discretion in a discriminatory manner. This was a claim under s 66K(1)(c) and not s 66K(1)(a). That claim necessarily identified the service provided by the Council as the process which the Council undertook in considering and ultimately refusing or approving applications. However, the Tribunal did not deal with this claim. Moreover, it seems not to have been raised before Murray J or the Full Court. That being so, even if we thought that the alternative claim was arguable, we would hesitate to send the case back to the Tribunal to consider it at this late stage in the proceedings. In our opinion, however, the claim could not succeed in any event.

The process by which the Council considers applications for approvals is not in our view arguably describable as a service that it provides to applicants for planning approval. Rather it is a power to process applications for the protection and general benefit of the residents of the City. If the Council delays making its decision for more than 60 days, it is deemed to have refused the application. A process that can lead to such a result can hardly be described as providing a service to the applicant. If within the statutory period, the Council considers the application, it is bound to consider various matters and interests which may be contrary to the interests of the applicant and which may result in the refusal of the application. If the application succeeds, the applicant no doubt receives a benefit or advantage. But not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual. When the deliberative and quasi-judicial nature of the application process is identified and analysed, it cannot sensibly be described as a "helpful activity" provided by the Council to applicants for planning approval. The Council is an adjudicator, not a servant of an applicant.

Order

The appeal should be dismissed.