I W v CITY OF PERTH & OTHERS

(1997) 191 CLR 1

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(Judgment by: Toohey J)

I W v CITY OF PERTH & OTHERS

Court:

Judges: Brennan CJ, McHugh
Dawson, Gaudron

TooheyGummow
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:
Toohey J

The circumstances giving rise to this appeal and the relevant legislation appear in other judgments. I shall avoid undue repetition.

Unhappily, this matter has had a very long history. Since 1991 it has been before the Equal Opportunity Tribunal of Western Australia, judges of the Supreme Court of Western Australia ^[F54] , the Full Court of that Court and is now on appeal to this Court.

Before this Court four issues arose for determination. In logical sequence they were as follows:

1.

Was the refusal by the Perth City Council to provide planning approval for the use of premises as a "day time drop-in centre" for persons who are HIV positive a refusal to provide "services" within s 66K(1) of the Equal Opportunity Act 1984 (WA) ("the Act")?

2.

If so, was it a refusal to provide a service to the appellant as distinct from People Living with AIDS (WA) Inc ("PLWA"), an association incorporated under the Associations Incorporation Act 1987 (WA) and which was the applicant for planning approval?

3.

What is the relevant test in order to attribute the ground of impairment referred to in the Act to a decision making body such as the Perth City Council when the application was rejected by 13 votes to 12?

4.

Is it necessary that the unimpaired person, to whom the impaired person must be compared by reason of s 66A(1) of the Act, exhibit the characteristics ascribed by the decision making body to the impaired person?

Although this is the logical sequence in which to approach the issues, it should be appreciated that the first two arise from the respondents' notice of contention. It is the third and fourth issues which are the subject of the notice of appeal and which were the basis of the application for special leave to appeal. If either of the first two issues is determined adversely to the appellant, the remaining issues do not have to be resolved; in that event, however, the grant of special leave to appeal rather loses its point.

The objects of the Act, expressed in s 3, include

"to eliminate, so far as is possible, discrimination against persons on the ground of ... impairment in ... the provision of ... facilities and services".

In the interpretation of this provision and any other provision in the Act,

"a construction that would promote the purpose or object underlying the written law ... shall be preferred to a construction that would not promote that purpose or object" ^[F55] .

Thus the approach to be taken in the interpretation of any of the provisions of the Act is marked out. Preference is to be given to a construction that would promote its objects. The Act is remedial and should receive "a generous construction" ^[F56] .

A refusal to provide services?

Section 66K(1) of the Act makes it unlawful for a person who provides goods or services to discriminate against another person on the ground of that person's impairment, in any of the circumstances identified in pars (a) to (c) of the sub- section. Discrimination is a term of varied meaning but the Act provides its own dictionary. Section 66A spells out when discrimination on the ground of impairment may occur. This case is concerned only with the direct discrimination to which s 66A(1) refers.

Unless there was a failure by the Council or at any rate by the other respondents to provide a relevant service, nothing contrary to the Act took place. The legislature has chosen an inclusive definition of "services" ^[F57] , thereby giving the word its ordinary, wide meaning. However par (e) of the definition is directly relevant in that it identifies

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

The question whether there has been a refusal to provide a service is a question of fact, to be determined by the Tribunal ^[F58] . An appeal lies from the Tribunal to the Supreme Court "on a question of law" ^[F59] . As it happens, the Tribunal, Murray J and the members of the Full Court all held that the refusal of planning approval was a refusal to provide a service. As mentioned earlier, that particular issue is before the Court by reason of the notice of contention. In the circumstances, the question must be whether there was evidence upon which the Tribunal might properly conclude that there was such a refusal.

Given the breadth of the term "services", it might be readily concluded that a refusal to give planning approval to the application by PLWA was a refusal to provide a service. The contrary argument however is that the service provided by the Council is not the giving of planning approval but the consideration of an application for such approval. It is not encumbent on the Council to give its approval; it may refuse its approval, or grant its approval unconditionally or subject to conditions ^[F60] . The service it provided was to consider the application in question and this it did. This approach to the issue is in my view too narrow.

The Council is responsible for preparing and giving effect to a town planning scheme. In discharge of that responsibility the Council adopted the "City of Perth City Planning Scheme" (1985), the objects of which include the classification and zoning of land within the Scheme Area for use for the purposes described and fostering and controlling development of land within the Scheme Area. The Tribunal said:

"Taking the 'broad view', there can be no doubt that in administering a town planning scheme ... and generally implementing or enforcing measures directed to the amenity of the area ... 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."

On appeal from the Tribunal, Murray J held that there was nothing in the Act which required that "services" be given a specialised or restricted meaning. He regarded the conclusion reached on the point by the Tribunal as open to the Tribunal and furthermore that it was "a conclusion of fact and not of law". It followed that no appeal lay on this ground. In the Full Court Ipp J said:

"[T]he granting of a change in use, in the context of the relevant legislation, is a service provided to the community by the City".

But, it is said, the service is not one of granting approval. To say that is to disregard the fact that the Council may grant or refuse an application to rezone so as to permit a hitherto unpermitted use. But how, it is asked, can a refusal of an application be a refusal to provide a service? The answer to this may be found in s 66K(1)(c) of the Act. If the service is seen as the consideration of the application and its disposition and if it appears that the Council refused the application on the ground of impairment, why is that not discrimination "in the manner in which the first-mentioned person provides the other person with those ... services"? Consideration of an application is of itself hardly a service; it is the disposition of the application which either provides or refuses the service. In the manner of that refusal there may be discrimination.

In the course of argument reference was made to some English decisions. One was Savjani v. IRC ^[F61] which concerned the Inland Revenue office where information and advice were given to members of the public on their tax affairs. Where tax relief was claimed in respect of a child the office had a policy of accepting a short form of birth certificate which was issued free but, in the case of taxpayers who came from the Indian sub-continent, a full certified copy of the birth certificate costing [pound ]2.50 was required. The Court of Appeal held that this constituted discrimination against the appellant. Lord Denning MR concluded ^[F62] :

"It seems to me that the provisions for granting relief, giving advice, and the advice which is given, are the provision of services."

Templeman LJ drew a distinction between the function of collecting revenue and that of providing information and said ^[F63] :

" Now if the inspector or the board make it more difficult for a taxpayer - who is entitled to relief; he does satisfy all the conditions - to obtain that relief than they do for other taxpayers, they are discriminating in the provision of the service to the public and the service to him of enabling tax relief to be obtained."

This division of function approach was adopted by Lord Fraser in R v. Entry Clearance Officer; Ex parte Amin ^[F64] and also by Hutchison LJ in Farah v. Commissioner of Police of the Metropolis ^[F65] who concluded that the words "services to the public"

"are entirely apt to cover those parts of a police officer's duties involving assistance to or protection of members of the public".

In other words, the appellant's real case in this regard is that, in exercising its discretion in the disposition of the application, the Council acted in a discriminatory manner. It may be that this is not the way in which the refusal of services was approached in the Tribunal or in the Supreme Court. However, such a case formed part of the points of claim lodged with the Tribunal. In any event the issue is raised by the notice of contention and the appellant is entitled to answer the notice by reference to any argument that fairly meets the contention.

Is the appellant an aggrieved person?

Part IVA of the Act is entitled: DISCRIMINATION ON THE GROUND OF IMPAIRMENT. Division 1 - General contains s 66A which identifies in general terms what constitutes such discrimination. Sub- section (1) speaks of a person (referred to as the "discriminator") discriminating against another person (referred to as the "aggrieved person") on the ground of impairment.

The complaint to the Tribunal was made by PLWA and by some of its members. When the matter came on for hearing before the Tribunal, PLWA was deleted as a party and DL, a representative member, was substituted, presumably on the basis that the association could not suffer an impairment. Nevertheless PLWA had been the applicant for approval. The appellant now remains as the only complainant. The Tribunal held that the individual members of PLWA were aggrieved persons because they could physically occupy the premises and their interests would thereby be prejudicially affected if occupation was refused. Murray J again held that there was no error of law on the part of the Tribunal in this regard. In the Full Court Ipp J opted for a broad interpretation of "aggrieved person", pointing out that it was at all times clear that PLWA was acting on behalf of its members. His Honour said:

" It is ... necessary to point out that 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."

Ipp J held that the then respondents were aggrieved, commenting that if the narrow construction urged by the then appellant was accepted, it would be impossible for discriminatory conduct to occur when refusal to provide services was to a corporate body by reason of discriminatory attitudes towards its members. Wallwork J did not address this issue. Scott J held that the refusal was made to the PLWA, not to the individual members.

By their notice of contention the respondents in effect challenge the finding of the Tribunal. I would accept the appellant's argument in this regard, for the following reasons. The appellant argued that as the benefit of the change of use, if granted, would have gone to the members of PLWA and because the change was for a specific not a general purpose, the refusal was in truth a refusal to provide the benefit of approval (a service) to the members of PLWA. As to "person aggrieved", he relied upon a passage from the judgment of Stephen J in Koowarta v. Bjelke-Petersen in which his Honour said ^[F66] :

"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."

It is true that the passage must be read in the light of the phrase "second person" in the Racial Discrimination Act 1975 (Cth); the question here is one of the interpretation of a different Act. Nevertheless the passage does point up the need to look at substance rather than form in considering such an expression as "person aggrieved". There was never any doubt that the application by PLWA was made on behalf of its members including the appellant.

I agree with Ipp J's approach to this issue and accept the Tribunal's conclusion that the appellant was entitled to assert that there had been discrimination against him ^[F67] .

The test to be applied to the Council

Section 5 of the Act provides that a reference in the Parts identified, which include Pt 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".

Sections 66A and 66K refer to discrimination "on the ground of" impairment. As this matter has progressed through the courts, it has been accepted that "by reason of" is not materially different from "on the ground of". Hence, once a conclusion is reached that discriminatory factors were one ground on which the Council reached its decision to refuse the application, it follows that there was a contravention of s 66K even if the discriminatory ground was not the principal ground upon which the decision was made.

It further follows that the particular issue is whether the discriminatory ground on which 5 of the 13 Councillors resolved to refuse the application could be imputed to the Council and with what consequences. In disposing of this issue, three possible tests have emerged from the proceedings below.

1.

The test adopted by the Tribunal and upheld by Murray J was that the ground of decision of any Councillor whose decision was causative, in the sense that "but for" that decision approval would not have been refused, can be imputed to the Council. On this test, since there was a 13 to 12 majority against approval, the vote of every Councillor in the majority was causative. Consequently, in the words of Murray J, "it would be sufficient if the vote of one of those councillors was produced by or grounded in the consideration of the impairment of the aggrieved person".

2.

The test favoured by Ipp J was that relevantly the ground of decision is the ground on which a majority of the voting Councillors made their decision.

3.

The test favoured by Wallwork J was to look at the ground on which a majority of the majority Councillors made their decision. In the present case, presumably 7 Councillors would have had to vote on an improper ground for that ground to be imputed to the Council.

Scott J held that the complainants had been unable to identify the reasons for decision of the Council.

The "but for" test, which has featured in some decisions relating to causation in negligence actions, has been rejected as a definitive test of causation ^[F68] . That is not to say that it has no part in this appeal. It has a respectable provenance in situations having some comparability to the present one. Thus in Whitehouse v. Carlton Hotel Pty Ltd , where it was held that an allotment of shares was made for an impermissible purpose, Mason, Deane and Dawson JJ said ^[F69] :

"As a matter of logic and principle, the preferable view would seem to be that, regardless of whether the impermissible purpose was the dominant one or but one of a number of significantly contributing causes, the allotment will be invalidated if the impermissible purpose was causative in the sense that, but for its presence, 'the power would not have been exercised'".

While not relying on the expression "but for", the House of Lords in R v. Birmingham City Council; Ex parte Equal Opportunities Commission ^[F70] and in James v. Eastleigh Borough Council ^[F71] applied a causative construction to the phrase "on the ground of" in discrimination legislation. In other words the test to be applied was objective in the sense that it was necessary to show no more than that "but for" the prohibited ground, the complainant would have been treated differently.

It is true that these decisions are not concerned with the attribution of a ground of a decision to a corporate body. However they offer guidance. The decision of the Council must have been on the ground of impairment of members of PLWA before the Act could operate on the refusal of approval. In the present case each Councillor in the majority determined the outcome by the vote he or she cast. If one or more of these Councillors voted on an impermissible ground, whether or not that was "the dominant or substantial reason" ^[F72] , that vote determined the outcome because the result would have been different "but for" the vote of that Councillor. The City of Perth could only act through its Council; the Council could only act through the vote of its members; the vote of every member of the majority was causative in the sense that the application would not have been refused but for each of those votes; and one, in fact five, Councillors reached a decision on a ground that was unlawful. The decision of the Council was likewise infected.

To whom is the impaired person to be compared?

Under s 66A a person discriminates against another on the ground of impairment in the circumstances there identified.

The respondents contended that while the notional person to whom the impaired person must be compared in terms of s 66A is free of the impairment, that person retains the characteristics imputed to or which characterise the impaired person. Put another way, the features identified in pars (b) to (d) of s 66A(1) are shared by both the impaired and the notional person and are included in the "circumstances" identified in the section as those in which the differential treatment is to be considered. On the other hand, the appellant contended that such an approach would fatally frustrate the purposes of the Act. Thus, he said, if infectiousness is a characteristic of sufferers of AIDS (which is an impairment) and people would discriminate equally against those who are infectious but do not have AIDS, it would follow that there has been no discrimination under the Act against people with AIDS. Likewise, he said, if illegal drug use or homosexuality is a perceived characteristic of those who are HIV positive, discriminating against AIDS sufferers would not be contrary to the Act so long as the discriminator would also discriminate against illicit drug users and homosexuals who do not have AIDS.

The illustration given in the course of argument before the Court is apt. On the construction for which the respondents contended, if dangerousness was a characteristic imputed to paranoid or schizoid personalities, there could be no discrimination against persons with those personalities.

The point was made by the President of the Human Rights and Equal Opportunity Commission in a passage quoted by Wilcox J in The Commonwealth v. Human Rights Commission ^[F73] and by Lockhart J in Human Rights and Equal Opportunity Commission v. Mt Isa Mines Ltd ^[F74] :

"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."

In my view these considerations lead to the construction of the Act argued for by the appellant and upheld by the Tribunal and Murray J.

The process of construction and application of the relevant provisions of the legislation is as follows. The impairment must be identified with reference to the definition in s 4(1) of the Act. This is so expressed as to identify various "conditions" by reference to defects or disturbances in the normal structure or functioning of a person's body or brain, and to illnesses or conditions which impair thought processes, perception of reality, emotions or judgment, or which result in disturbed behaviour. The impairment of the aggrieved person is an essential element in all that follows.

The next step is to ascertain whether there has been any treatment by the discriminator of the aggrieved person "on the ground of impairment". That portion of s 66A(1) which comprises pars (a) to (d) and the immediately preceding words "on the ground of" are declaratory or explanatory of the expression in the opening passage of s 66A(1) "a person ... discriminates ... on the ground of impairment if ...". Paragraphs (b) and (c) refer to characteristics which appertain generally, or are generally imputed to, persons having the same impairment as the aggrieved person. The result is that there may be wrongful discrimination against the aggrieved person "on the ground of impairment" where the ground is not the impairment itself but one or other of these characteristics. Paragraphs (b) and (c) (and par (d) also) add to the unacceptable bases for differential conduct and in this way expand the scope of the sub-section. They do not limit the overall operation of the sub-section and thus of the Act.

Then a comparison must be made. This involves consideration of how the discriminator treats or would treat a person who does not have "such an impairment". In making the comparison the characteristics referred to in pars (b) and (c) of s 66A(1) are to be ignored. When s 66A(1) concludes with the words "such an impairment", the correspondence is with "the ground of impairment" in the opening words of the sub-section. Any other approach would render the Act ineffective.

Conclusion

It follows from these reasons that both grounds of appeal succeed and both grounds of the notice of contention fail.

In that event a question arises whether s 680 of the Local Government Act 1960 (WA) applies to the acts of the Councillors. I agree with Kirby J that an error of law occurred in the Tribunal which necessitates that this aspect be dealt with by the Tribunal.

I also agree with the orders proposed by Kirby J.