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Federal Court of Australia |
Last Updated: 5 April 2001
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
DISCRIMINATION - Discrimination Act 1991 (ACT) - appeal from Supreme Court of the ACT -- legislative scheme - objects of the Discrimination Act - structure, language and content of Discrimination Act - what constitutes discrimination - discrimination in respect of the provision of goods, services and facilities - discrimination on the ground of occupation - whether unfavourable treatment by respondent was because of the appellant's occupation - whether respondent's conduct was reasonable - whether question of "reasonableness" is one of fact or law
COSTS - whether usual orders as to costs should follow - public interest element
WORDS AND PHRASES - "direct" discrimination - "indirect" discrimination
Discrimination Act 1991 (A.C.T)
Australian Capital Territory (Self-Government) Act 1988 (Cth)
Supreme Court Act 1933 (ACT)
Prezzi v Discrimination Commissioner (1996) EOC 92 - 803 cited
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 followed
I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1 followed
Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 followed
James v Eastleigh Council [1990] 1 QB 61 cited
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 cited.
Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; (1956) AC 14 cited
The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 cited
Vetter v Lake Macquarie City Council [2001] HCA 12 cited
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 followed
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 74 ALJR 1348 followed
South-West Forest Defence Foundation v Executive Director, Department of Conservation and Land Management (WA) (No 2) [1998] HCA 35; (1998) 72 ALJR 1008 cited
Friends of Hinchinbrook Society Inc v Minister for the Environment [1998] FCA 432; (1988) 84 FCR 186 cited
Hollier v Australian Maritime Safety Authority [1998] FCA 975 cited
Scott v Secretary, Department of Social Security (No. 2) [2000] FCA 1450 followed
Kelly v Apps (2000) FCR 101 cited
JUDITH EDGLEY V THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED
NO. A 84 OF 1999
JUDGES: BEAUMONT ACJ, HIGGINS & GYLES JJ
DATE: 5 APRIL 2001
PLACE: SYDNEY (HEARD IN CANBERRA)
IN THE FEDERAL COURT OF AUSTRALIA |
|
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY |
1. Appeal dismissed, with costs.
2. Cross-appeals allowed with costs. Set aside order 1 and the order for costs made by the Supreme Court. In lieu thereof, order that the application be dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY |
BETWEEN: |
JUDITH EDGLEY APPELLANT |
AND: |
THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED RESPONDENT |
JUDGES: |
BEAUMONT ACJ, HIGGINS & GYLES JJ |
DATE: |
5 APRIL 2001 |
PLACE: |
SYDNEY (HEARD IN CANBEERRA) |
BEAUMONT ACJ:
INTRODUCTION
1 This appeal from a judgment of the Supreme Court of the Australian Capital Territory raises important questions as to the meaning and operation of key provisions of the Discrimination Act 1991 (A.C.T) ("the Act"), and in particular, s 8 of the Act. Section 8 provides:
"8. What constitutes discrimination(1) For the purposes of this Act, a person discriminates against another person if -
(a) the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or
(b) the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging persons because they have an attribute referred to in section 7.
(2) Paragraph (1)(b) does not apply to a condition or requirement that is reasonable in the circumstances.
(3) In determining whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include -
(a) the nature and extent of the resultant disadvantage; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement."
2 The Supreme Court allowed in part, but otherwise dismissed, an appeal from a decision of the Territory Discrimination Tribunal ("the Tribunal") which had dismissed a complaint made under the Act. The appellant now appeals from part of the Supreme Court judgment. The respondent cross-appeals from another part of that judgment.
THE APPELLANT'S COMPLAINT AND THE RESPONDENT'S RESPONSE
3 On 31 July 1997, the Discrimination Commissioner referred to the Discrimination Tribunal a complaint made by the appellant against the respondent under the Act (dated 12 February 1997) that the respondent had done an unlawful act by discriminating against her, contrary to the Act, in the following respects:
(i) by requiring prepayment for publishing an advertisement in the Adult Services section of The Canberra Times (hereafter the "prepayment" issue).
(ii) by refusing to place advertisements by the appellant for her services as a sex worker anywhere in The Canberra Times except in the Adult Services section (hereafter the "spot advertisement" issue).
(iii) by refusing to publish the appellant's advertisements in The Chronicle (hereafter "The Chronicle" issue).
4 The appellant claimed that the respondent had contravened ss 8 and 20 of the Act by treating her unfavourably, and imposing or proposing a condition or requirement which is not reasonable in the circumstances, because of her occupation as a sex worker.
5 In its response, the respondent did not dispute the conduct alleged, but denied that it was discriminatory for the purposes of the Act.
THE TRIBUNAL'S DECISION
6 In its decision (dated 8 February 1998) dismissing the complaint, the Tribunal summarised its conclusions on the three issues to the following effect:
1. The prepayment issue
(a) A claim of "direct" discrimination under s 8(1)(a) of the Act was not sustained, as the appellant had failed to establish that the refusal of services was caused by the appellant's occupation, rather than by the content of the advertisements themselves.
(b) A claim of "indirect" discrimination under s 8(1)(b) of the Act was established on the basis that the respondent had required all those wishing to advertise adult services, to advertise in the "Adult Services" columns. The respondent also had required prepayment from all those who advertise in the Adult Services columns. It was likely that the respondent's requirement would disadvantage the appellant as her occupation had required her to advertise in terms which can only appear in the Adult Services columns. However, s 8(1)(b) did not apply to this condition or requirement, as it was reasonable in the circumstances.
2. The spot advertisement issue
(a) A claim of "direct" discrimination was not sustained, as the appellant had failed to establish that the refusal of services was caused by her occupation, rather than by the content of the advertisements themselves.
(b) The appellant had been "indirectly" discriminated against, but the condition or requirement imposed by the respondent was reasonable in the circumstances.
3. "The Chronicle" issue
(a) A complaint of "direct" discrimination was not sustained, as the appellant had failed to establish that the refusal of service was caused by her occupation, rather than by the content of the advertisements themselves.
(b) The appellant had been "indirectly" discriminated against, but the condition or requirement imposed by the respondent was reasonable in the circumstances.
THE LEGISLATIVE SCHEME
7 Relevantly, the statutory scheme is as follows:
* The objects of the Act are stated (in s 3) to be:
"(a) to eliminate, so far as possible, discrimination to which this Act applies in the areas of work, education, access to premises, the provision of goods, services, facilities and accommodation and the activities of clubs;(b) to eliminate, so far as possible, sexual harassment in those areas;
(c) to promote recognition and acceptance within the community of the quality of men and women; and
(d) to promote recognition and acceptance within the community of the principle of equality of opportunity for all persons."
* In the interpretation of the Act, "discriminate" has the meaning given by s 8 (see below) (s 4(1)).
* A reference to -
"... the doing of an act by reason of a particular matter shall be read as including a reference to the doing of such 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." (s 4(3)).
* The Act applies to discrimination on the ground of any of the several attributes specified in s 7(1), including (ic) "profession, trade or calling".
* What constitutes discrimination is defined by s 8.
8 (Sections 7 and 8 are located in Part 2 of the Act (ss 7 - 9) dealing with "discrimination to which Act applies".)
* Discrimination in respect of the provision of goods, services and facilities is dealt with by s 20:
"20. Goods, services and facilitiesIt is unlawful for a person who (whether for payment or not) provides goods or services or makes facilities available, to discriminate against another person -
(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the firstmentioned person provides those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the firstmentioned person provides those goods or services or makes those facilities available to the other person."
9 (Section 20 is in Part 3 of the Act (ss 10 - 23) dealing with "unlawful discrimination".)
* Discrimination on the ground of a profession, trade, occupation or calling is specifically dealt with by s 57N:
"57N. Discrimination in profession, trade, occupation or callingNothing in Part 3 renders it unlawful to discriminate against a person on the ground of the profession, trade, occupation or calling of the person in relation to any transaction where profession, trade, occupation or calling is relevant to that transaction and the discrimination is reasonable in those circumstances."
10 (Section 57N is in Part 4 of the Act (ss 24 - 57N) dealing with "exceptions to unlawful discrimination".)
* A complaint alleging that a person has done an act that is unlawful may be lodged with the Commissioner by a person aggrieved by the act (s 72(1)(a)). The Tribunal shall hear a complaint referred to it by the Commissioner (s 91(1)(b)). After completing a hearing, the Tribunal shall dismiss any complaint that it is satisfied is not substantiated (s 102(2)(a)(ii)). If satisfied that the respondent has engaged in unlawful conduct, the Tribunal shall - (i) order the respondent not to repeat or continue the unlawful conduct; (ii) order the respondent to perform any reasonable act or acts to redress any loss or damage suffered by a person as a result of the unlawful conduct by the respondent; or (iii) except where the complaint has been dealt with as a representative complaint - order the respondent to pay to a person a specified amount by way of compensation for any loss or damage suffered by the person as a result of the unlawful conduct by the respondent (s 102(2)(b)).
* An appeal from a decision of the Tribunal lies to the Supreme Court on a question of law (s 108D(1)). On hearing an appeal, the Supreme Court may (a) make an order affirming or setting aside the decision of the Tribunal; or (b) make an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court; or (c) make such other order as the Court considers appropriate (s 108D(3)).
THE TRIBUNAL'S FINDINGS AND REASONS
(a) Factual findings
11 There was no serious dispute about the facts. The Tribunal's factual findings (as summarised in the Supreme Court judgment) were to the following effect:
q The appellant commenced working in a private capacity as a sex worker in January 1994, and at that time first advertised her professional services in the respondent's The Canberra Times. The advertisement was in these terms: "Angie, pampering, passionate, and private [phone number provided]". During 1994 the appellant was a regular advertiser in the Adult Services column of The Canberra Times, the wording of the advertisement remaining basically the same. She continued to advertise periodically thereafter.
q After a break in 1996, the appellant again began advertising in the Adult Services section. On inquiring, she was advised by The Canberra Times' management that prepayment for Adult Services advertising was required, unless the advertiser held a monthly account, or the account was paid with a credit card at the time of lodgement.
q During January and February 1997, the appellant requested that she be allowed to place a "spot advertisement" in The Canberra Times, but was informed that advertising for adult services was restricted to the Adult Services section of the classified section of the newspaper.
q Persons other than sex workers have to advertise in the Adult Services section if the content of the advertisement is related to the provision of adult services.
q When the appellant advertised in other sections of The Canberra Times (in respect of matters not related to adult services), she was treated in the same way as any other advertiser.
q The condition imposed by the respondent on advertisers of adult services, namely that the advertisements appear in the Adult Services column, would be more likely to affect persons whose occupation requires them to use terms in their advertisements which would lead to the respondent's requirement that they advertise in the Adult Services column, and would be likely to affect persons whose occupation or profession is that of sex worker, and whose advertisements are limited to that column.
q In having to pay for the advertisement in advance, the appellant has not suffered any significant financial burden. But she suffered loss of convenience in having to travel to the offices of The Canberra Times, or to an approved newsagency, in order to make cash payments. She also suffered the disadvantage of not being granted immediate and automatic access to credit provided by the respondent.
q The appellant suffered further inconvenience, in that she did not have the flexibility to telephone advertisements through when she wanted to advertise the next day; she felt uncomfortable and powerless; and she was discomforted and lost anonymity by having to place her advertisements in newsagencies.
q The risk of the respondent being exposed to bad debts would be exacerbated by opening up payment options in the manner contemplated by the appellant.
q Newspapers carry two styles of advertising. One is "line classifieds", which appear grouped by subject in sections of the newspaper given over to their use. The other is "display" or "spot" advertisements, which appear in various parts of the newspaper.
q The facility to advertise throughout The Canberra Times was taken up by a large proportion of advertisers who use the newspaper. The use of the facility was perceived by advertisers in general to contain an advantage for them. The denial of the facility to the appellant was likely to be adverse to her interests.
q The respondent is constrained by its perception that The Canberra Times is a family newspaper. It has received complaints about its Adult Services advertisements.
q It was open to the appellant to place display advertisements in the Adult Services column.
q If the respondent were to allow Adult Services advertisements to appear throughout the newspaper, it was likely that many Adult Services advertisers would use that opportunity. Assuming a stable population of potential purchasers of the services, the advantage of using the opportunity was likely to be marginal.
q The Canberra Times has a reputation in the community. The respondent wishes to maintain that reputation. Loss of reputation may have a significant commercial impact.
q The Chronicle is delivered, free and uninvited, into homes in Canberra.
q The appellant attempted to place an advertisement (with much the same wording as the one above) in the respondent's The Chronicle's Service Directory. This request was refused.
(b) Conclusion on the complaint about the prepayment requirement
12 The Tribunal rejected the claim of "direct" (i.e. s 8(1)(a)) discrimination here.
13 The Tribunal noted that the Act did not specifically define the word "unfavourably" where used in s 8(1)(a). Reference was made to the decision of the Territory Administrative Appeals Tribunal in Prezzi v Discrimination Commissioner (1996) EOC 92 - 803, the Tribunal noting that the parties accepted that no comparison of the kind contemplated by other anti-discrimination legislation, was required by the Act.
14 The Tribunal noted the appellant's complaint that the respondent had, in the provision of advertising services, imposed terms and conditions that she could only advertise in the Adult Services column, and had to pre-pay.
15 The Tribunal said:
"On the evidence ... it would seem that it is the subject matter of the advertisements, rather than the occupation of the advertiser, which led to the Respondent's requirement that they appear in the `adult services' section.Persons other than sex workers have to advertise in that column if the content of the advertisement is related to the provision of adult services. Also, the [appellant] gave evidence that she was treated ... the same as any other advertiser when she advertised in other sections of the Canberra Times. Taken together, these facts support the conclusion that it is the content of the advertisement that invites the requirement that it appear in the `adult services' column, rather than the profession or occupation of the advertiser. Accordingly, there does not appear to be evidence to establish a direct causal connection as required by s8(1)(a) of the Act."
16 But the Tribunal went on to conclude that there had been "indirect" (i.e. s 8(1)(b)) discrimination:
"However, s8(1)(b) of the Act, refers to circumstances where a condition or requirement has, or is likely to have, the effect of disadvantaging persons because of an attribute they have. On the evidence of the parties, there is a condition made by the Respondent on a class of advertisements which, because of their content, restricts them to appearing in the `adult services' column. This condition would be more likely to affect persons whose occupation requires them to use terms in their advertisements which would lead to the Respondent's requirement that they advertise in the `adult services' column. Therefore, the restriction on advertisers whose advertisements, because of their content, are restricted to the `adult services' column, would be likely to affect persons whose occupation or profession is that of sex worker and whose advertisements are limited to that column. On this basis the Tribunal finds that the [appellant] has made out her claim under section 8(1)(b) of the Act."
17 The Tribunal turned next to the question arising under s 8(2) whether, having regard to (amongst other things) the matters specified in s 8(3), the requirement was "reasonable in the circumstances".
18 The Tribunal said that s 8(2) and (3) require it to balance a number of factors, citing the following observations of Brennan J in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (at 378):
"These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another ... are relevant factors in considering what is reasonable."
19 Noting that the real question was one concerned with the most convenient mode of payment, rather than any significant extra financial burden, the Tribunal said:
"The Respondent provided evidence of alternatives available to the [appellant] for paying for her advertisements. These options included paying by credit card, or arranging for credit to be provided by the Respondent or an approved Newsagent.The [appellant] gave evidence of her difficulties in obtaining credit due to her lack of credit references and her aversion to using credit cards. These difficulties would present a real problem to a person in the [appellant's] position. However, the [appellant] also gave evidence of a credit facility she had established at a Newsagency, whereby she could telephone through a request for an advertisement and pay at a later date. Evidence was also given that the [appellant] could establish credit facilities at a number of newsagencies, and telephone through requests to advertise.
In light of the factual evidence given by the parties, as summarised above, this Tribunal finds that the resultant disadvantage to the [appellant] of the condition or requirement imposed by the Respondent is of a trivial nature. Options available to the Respondent to overcome or mitigate the disadvantage are not feasible in the circumstances, and that the disadvantage imposed is not disproportionate to the result sought by the Respondent."
(c) Conclusion on the complaint about spot advertising in The Canberra Times
20 The Tribunal, noting "obvious similarities" with the other complaints, again found that s 8(1)(a) did not apply because the requirement was attached to the content of the advertisement, rather than any attribute of the advertiser. However, s 8(1)(b) applied here also, because this requirement "was likely to affect prostitutes because the services they offer can only be advertised in the Adult Services section".
21 In then considering the issue of "reasonableness", the Tribunal said:
"It appears that the preferred option to overcome or mitigate the disadvantage would be for the Respondent to allow adult services advertising to appear throughout the newspaper. However, the Respondent submitted that it was constrained by its perception that it is a family paper, which the [appellant] concedes, and that the newspaper has been the subject of complaints, and in a matter as sensitive as Adult Services, it is reasonable for the Respondent to take notice of this. Additionally, the Respondent claims that this disadvantage could be ameliorated by the [appellant] using display advertisements within the adult services section.The Tribunal must take matters such as those above into account in determining whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.
If the Respondent were to allow Adult Services advertising to appear throughout the Newspaper, it is likely that many Adult Services advertisers would take advantage of that opportunity to advertise wherever in the Newspaper they perceived would have the greatest commercial advantage. The only competitive advantages available to the individual Adult Service providers against other providers of similar services would be those gained by a comparative financial advantage or creativity. This would be likely to be similar to the comparative advantages made available when advertising within the Adult Services column. Assuming there is a stable population of potential purchasers of these services, then the advantage is likely to be marginal.
Comparing the disadvantage to the [appellant] of the Respondent's condition or requirement to the result sought by the Respondent, which is to maintain the Newspaper's reputation in the community, the loss of which may have a significant commercial impact, leads to the conclusion that the imposition of the condition or requirement is reasonable in the circumstances."
(d) Conclusion on the complaint about refusal to accept advertising in The Chronicle
22 The Tribunal held, for the same reason, that s 8(1)(a) did not apply, but that s 8(1)(b) did.
23 In addressing the issue of "reasonableness", the Tribunal said:
"Here the [appellant] has been denied the opportunity to advertise in a newspaper that is distributed to most residences in Canberra. This represents a denial of a much greater opportunity than that in the previous complaint.However, the Respondent argues that the matters that are to be taken into account here are that:
* the paper is a `family' paper that is delivered free and uninvited into homes in Canberra;
* the paper's readership is predominantly female and advertising services to heterosexual men would be inefficient; and,
* complaints have been received from readers by the Respondent about adult services advertisements, which raises the question of the paper's commercial interests.
Again, if the Respondent were to allow Adult Services advertising to appear in the Chronicle, it is likely that many Adult Services advertisers would take advantage of that opportunity to advertise their services. The competitive advantage available to the individual Adult Service provider would be of a short term nature. As a large number of advertisers took advantage of the opportunity to advertise then the only advantages available to individual advertisers would be those gained by superior financial resources or creativity. It would then be likely that the advantages gained by the Adult Services advertisers in this Newspaper would be effectively diminished to the point that they are rendered marginal.
Compared to this are the Respondent['s] assertions that the paper's readership is predominantly female, thereby making the advertisement of services to heterosexual men inefficient; and that complaints have been received from readers by the Respondent about adult services advertisements. The latter point raises the question of effect of allowing the advertisements on the newspaper's commercial viability.
Under the Act the Tribunal is required to compare the disadvantage to the [appellant] of the Respondent's condition or requirement to the result sought by the Respondent, which is to maintain the Newspaper's commercial interests. Taking into account the Chronicle's individual circumstance of being delivered free and uninvited into homes in Canberra, and the other factors listed above, this Tribunal is led to the conclusion that the imposition of the condition or requirement is reasonable in the circumstances."
(e) Dismissal of complaints
24 Accordingly, pursuant to s 102(2)(a)(ii), the Tribunal dismissed each of the complaints, expressing its satisfaction that none had been substantiated.
THE APPEAL TO THE SUPREME COURT
25 The appellant appealed to the Supreme Court, challenging the Tribunal's findings, in respect of each of her complaints, that no contravention of s 8(1)(a) had been established. The appellant further sought to overturn the Tribunal's finding that each of the conditions or requirements were "reasonable" for the purposes of s 8(2) and (3).
THE SUPREME COURT JUDGMENT
26 As has been mentioned, the Supreme Court allowed the appeal in one respect, but otherwise the appeal was dismissed. The judgment is lengthy, but the essential process of reasoning applied in the Supreme Court may be summarised as follows:
(a) The operation of s 8(1)
27 The learned primary Judge noted (par 15) observations by the High Court that, generally, anti-discrimination legislation is "remedial" and should receive an interpretation which is "fair, large and liberal", not "narrow or pernickety" (I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12, 58).
28 His Honour also observed (par 25) that, under the Act, unlawful discrimination is confined to discrimination in the provision of goods, services and facilities (s 20), but that the respondent accepted that, in publishing advertisements, it provided services within s 20.
29 His Honour referred to the observations in Prezzi, above, that a feature of the Act which distinguishes it from other anti-discrimination legislation is the provision of s 8 that discrimination is constituted by conduct which treats another person unfavourably.
30 The primary Judge, noting that the appeal to the Supreme Court was confined by the Act to matters of law, said (pars 27 - 30):
"[T]he issue [here is whether there was any] error on the part of the Tribunal in finding that the unfavourable treatment was not because of the appellant's occupation and in further finding that the conditions or requirements imposed by the respondent were reasonable. The words `because of' in s 8(1)(a) and s 8(1)(b) and `reasonable' in s 8(2) and s 57N do not have a statutory meaning. They raise clear and simple issues of fact. ... The High Court has approached both questions of causation and reasonableness under anti-discrimination legislation elsewhere on the basis that they are questions of fact: Waters v Public Transport Commission [above] per Mason CJ and Gaudron J at 365. ... Nevertheless, the High Court has also discussed and approved tests that are to be applied for making findings on those issues of fact: Waters, per Brennan J at 378 and McHugh J at 410. ... It would appear to follow that if the findings of fact are made in accordance with the application of tests that do not fall within those tests approved by the High Court then the findings should be regarded as wrong in law."
31 His Honour said (par 31) that, in his opinion, a "false issue" had been raised, both in the Tribunal and in argument before the Supreme Court, arising out of "a perceived dichotomy between so called `direct' discrimination and `indirect' discrimination". His Honour noted (par 32) that in some jurisdictions, the legislation made an explicit contrast between "direct" and "indirect" discrimination; and that even where the statute had not used such terms, the Courts had recognised the distinction. He referred to Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 175 where, in considering the New South Wales statute, Deane and Gaudron JJ contrasted "direct discrimination or acts involving different treatment of men and women" and "indirect discrimination or acts having a disparate impact on men and women". His Honour noted (par 33) that the distinction was discussed at greater length by Mason CJ and Gaudron J in Waters above (at 357) (Deane J at 382), agreeing on this point) in considering s 17(1) and (5) of the Equal Opportunity Act 1984 (Vic).
32 (It will be convenient to note here that the provisions of s 17(1) and (5) were in these terms:
"(1) A person discriminates against another person ... if on the ground of the status or by reason of the private life of the other person the first-mentioned person treats the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life....
(5) For the purposes of sub-section (1) a person discriminates against another person on the ground of the status or by reason of the private life of the other person if -
(a) the first-mentioned person imposes on that other person a requirement or condition with which a substantially higher proportion of persons of a different status or with a different private life do or can comply;
(b) the other person does not or cannot comply with the requirement or condition; and
(c) the requirement or condition is not reasonable." (Emphasis now added).)
33 In the Supreme Court, the primary Judge, saying (par 33) that those provisions "are similar in relevant respects to those in s 8(1)(a) and s 8(1)(b) of the Act ...", quoted from the following passage in the judgment of Mason CJ and Gaudron J in Waters (at 358):
"[Section 17(1)] is expressed in general terms apt to apply to both direct and indirect (`adverse effect') discrimination. Conduct which is `facially neutral' may nevertheless amount to, or result in, `less favourable' treatment. ...The remaining sub-sections in s. 17 give more precise content to the general concept of discrimination described in sub-s. (1). Instead of making separate and independent provision for indirect discrimination, the legislature has chosen by sub-s. (5) to make it clear that sub-s. (1) applies to indirect discrimination of the kind described in sub-s. (5), just as sub-s.(4) makes it clear that sub-s. (1) applies to direct discrimination of the kind to which it refers. Sub-sections (4) and (5) commence with the words `[f]or the purposes of sub-section (1)', as does sub-s. (2). Accordingly, sub-s. (5) is epexegetical to, or explanatory of, sub-s. (1), spelling out the reach, though not necessarily the whole of the reach, of that provision in its application to indirect discrimination.
It is implicit in what we have just said that we do not accept the proposition that s. 17(5) is a complete and exhaustive statement of what constitutes indirect discrimination for the purposes of s. 17. Indirect discrimination as described in s. 17(1) may occur otherwise than by means of the imposition of a `requirement or condition' within the meaning of s. 17(5). And the language of the section appears to be inconsistent with the notion that s. 17(5) is a complete and exhaustive prescription for the purposes of s. 17(1). The object of s. 17(5) was to ensure that s. 17(1) extended so far, not to confine its operation."
34 Applying the reasoning in this passage, the Judge concluded (par 35) that the Tribunal had erred in treating s 8(1)(a) as if it were concerned with "direct" discrimination, and in treating s 8(1)(b) as if it were concerned with "indirect" discrimination; and that it was incorrect to assume that discriminatory conduct cannot fall within both sections. His Honour said (par 36):
"In the context of the present case, and with regard to the provision of services, if the provider of services provides those services subject to a condition that disadvantages persons because they have a particular attribute, it necessarily follows that, in applying that condition to the provision of services to a particular person with the attribute, the supplier treats that other person unfavourably because that other person has that particular attribute."
35 The primary Judge, however, went on to acknowledge that in Waters, Dawson and Toohey JJ had expressed the view (at 393) that s 17(1) and (5) of the Victorian legislation were mutually exclusive; and that McHugh J in expressing (at 400) the same view, observed that Brennan and Dawson JJ had done likewise in Banovic (at 170 - 171). His Honour said that the New South Wales legislation appeared to him to be different from the Act in material respects.
36 His Honour said (par 38) that it appeared to him that the view of Mason CJ and Gaudron J should be followed here, so that conduct within s 8(1)(b) will also fall within s 8(1)(a), although s 8(1)(b) will be ineffective if the term or condition is "reasonable" within the meaning of s 8(2).
37 The primary Judge went on (par 39 - 40) to consider an additional argument advanced on behalf of the appellant, namely, that the Tribunal had omitted to address the "essential question", whether the respondent required prepayment for the appellant's advertisements because of a presumption on its part that sex workers were a poor credit risk.
38 His Honour said (par 43):
"It is necessary to look beyond the `facial neutrality' of the conduct in question and to seek out the `true basis' of the respondent's conduct insofar as it constitutes unfavourable treatment and therefore discrimination for the purposes of the Act. Furthermore, whilst the broad `but for' test of causation is discouraged, if not prohibited, in other areas of the law where it is said that a `common sense' approach is sufficient: see March v Stramaree (E.H.) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, the `but for' test is recognized as appropriate for the purposes of anti-discrimination legislation: Banovic at 176-177, Waters at 359-360, and I W v Perth at 32. The test is therefore a very wide one, and its width is consistent with the broad and liberal approach which is required to bear upon the Act."
39 The primary Judge went on to say (par [51]):
"It was clear on the Tribunal's findings, so far as they go, that the applicant wanted to advertise her occupation and that the respondent treated her unfavourably in that respect. But for her occupation, the appellant would not have wanted to place an advertisement for `adult services'. But for her occupation, the respondent would not have treated her unfavourably. Ultimately then the outcome is similar to that in Banovic. The unfavourable treatment and the occupation are sufficiently connected for the occupation to be a cause of the treatment. The Tribunal was in error by not addressing the matter of causation by applying the `but for' test. If it had applied the correct test, it was inevitable that it would have arrived at a result which made the necessary causative link between the appellant's occupation and the respondent's unfavourable treatment of her."
40 However, his Honour said (par 52) that, save in exceptional circumstances, it was not necessary, in the present kind of context, for the Court to come to its own conclusions of fact; and if there had been error, the Court would remit to the Tribunal. In any event, his Honour (par 53) found it unnecessary to come to a conclusion of fact, noting his earlier view that in the light of the Tribunal's finding that s 8(1)(b) applied, a further finding under s 8(1)(b) was "necessitated in law".
(b) The operation of s 8(2)
41 His Honour said (par 54) that the Tribunal's conclusion that the discriminatory conditions imposed by the respondent were reasonable was "entirely one of fact" and "accordingly it is not within the province of this Court to seek to interfere with it". He noted (par 55) that s 8(3) is "specific in providing that the matters which it specifies are not exhaustive"; and that the Tribunal was entitled to have regard to all the circumstances. His Honour could find no error of law here, and went on (pars 56 - 67) to reject several arguments propounded on behalf of the appellant in this connection.
(c) The operation of s 57N
42 His Honour said (par 68) that had the Tribunal decided, as he thought it must, that the respondent's conduct was discriminatory under s 8(1)(a), the Tribunal would then have needed to consider whether the respondent (which bore the onus) had shown that its conduct was reasonable under s 57N.
43 His Honour, noting (par 71) that the meaning of "transaction" used in s 57N was not clear, said (par 71):
"In accordance with the broad approach necessary to be taken to anti-discrimination legislation, I think that the term `transaction' should not be read as a transaction completed between the appellant and the respondent. There were dealings in the nature of negotiations but neither side was prepared to accept the terms and conditions proposed or imposed by the other. I think that the findings of the Tribunal establish that there was an approach on the part of the appellant, seeking to have the respondent publish her advertisements, and a response on the part of the respondent, indicating that it was prepared to publish in The Canberra Times on certain terms and conditions, but not prepared to publish in The Chronicle at all. From those findings it would necessarily follow that there was a `transaction' for the purposes of s 57N. Further, the appellant's occupation was necessarily relevant to that transaction because she wanted to advertise her services as a sex worker."
44 The Judge went on to hold (par 72) that it followed from the Tribunal's conclusion of reasonableness under s 8(2), that it would also have found the respondent's conduct reasonable under s 57N.
Orders made in the Supreme Court
45 Accordingly, his Honour made the following orders:
"1. To the extent that the Tribunal found that the respondent's unfavourable treatment of the appellant was not because the appellant had an attribute under s.7 of the ... [Act], namely the occupation of sex worker, the appeal be allowed and the finding of the Tribunal be set aside.2. Otherwise the decision of the Tribunal that the appellant's complaint be dismissed as unsubstantiated be confirmed and the appeal be dismissed."
46 (Costs were reserved and subsequently dealt with by an order which is now the subject of a cross-appeal by the respondent, to be dealt with later in these reasons.)
THE APPELLANT'S APPEAL TO THIS COURT, THE RESPONDENT'S CROSS-APPEAL AND ITS NOTICE OF CONTENTION
47 The appellant now appeals from order 2 made by his Honour. She contends that his Honour erred in upholding the Tribunal's finding of reasonableness under s 8(2), and in further holding that it followed from this finding that the Tribunal would have concluded that the respondent's conduct was also reasonable for the purposes of s 57N.
48 For its part, the respondent cross-appeals against order 1 made at first instance, contending that his Honour erred in holding that conduct which falls within s 8(1)(b) necessarily falls within s 8(1)(a) also, arguing that the Supreme Court should have held that these provisions were mutually exclusive.
49 Further, by its notice of contention, the respondent contends that his Honour's judgment should be upheld on the basis that the Tribunal did not err in finding that the conduct of the respondent was not within s 8(1)(a).
50 It will be convenient to consider the respondent's cross-appeal and notice of contention first.
THE RESPONDENT'S CROSS-APPEAL AND NOTICE OF CONTENTION
51 In seeking to challenge his Honour's conclusion (par 38) that "conduct that falls within s 8(1)(b) necessarily also falls within s 8(1)(a)", the respondent advances the following arguments:
q The structure of s 8 indicates an intention to create a clear dichotomy between the two forms of conduct which can amount to discrimination. The first requires a direct causal link between the unfavourable treatment and the attribute of the person. The second deals with situations where that causal link is not available, but where the same effect results from the imposition of a "facially neutral" condition or requirement. However, unlike the Victorian statute considered in Waters (where s 17(5) was expressed to be "for the purposes of [s 17(1)]"), par (b) of s 8(1) is not expressed to be an extension of par (a). On the contrary, these paragraphs stand separately, and in the light of the structure of the provision, there is simply no reason to give par (a) a broad operation so that it also encompasses par (b).
q The context of par (b) is a further indication that sub-pars (a) and (b) of par 8 were intended to have a separate and mutually exclusive operation. Specifically, par (b) is affected by the provision in s 8(2), that par (b) does not apply to a condition or requirement that is reasonable in the circumstances. To decide, as his Honour did, that all conduct that falls within par (b) is necessarily within par (a), would render s 8(2) redundant, since par (b) need never be relied upon; and it would further mean that the reasonableness of a condition or requirement could only be relied upon where there was an attribute-specific exemption that invoked it. The only such provision is s 57N, applied here by the primary Judge. Effect should be given to the intention of the legislature as expressed in s 8(2), so as to create different and separate regimes for different types of discrimination.
q The High Court authorities on different legislation mentioned by the primary Judge do not support his Honour's conclusion that conduct within the indirect discrimination provisions may also be within the direct discrimination provisions for these reasons:
[diamond] Banovic, contrary to his Honour's view, involved the interpretation of provisions which were no less similar to the Act than those of the Victorian legislation. In Banovic, Dawson J (at 184) held that the existence of the provision dealing with indirect discrimination meant that the provision dealing with direct discrimination should not receive the broad interpretation that it might have otherwise (i.e. if free-standing). To do that would be (as in the case of the Act) to "render ... superfluous" the indirect discrimination provision. Brennan J (at 170 - 171) proceeded on the basis that the imposition of a "facially neutral" condition did not attract the operation of the direct discrimination provision.
[diamond] Moreover, in Waters, at least three of the Justices (Dawson and Toohey JJ, and McHugh J) made findings directly to the contrary of those relied upon in the Supreme Court. Dawson and Toohey JJ (at 392 - 393) referred to the reasoning of Dawson J and of Brennan J in Banovic, and held that, despite the opening words of s 17(5), s 17(1) and s 17(5) must have been intended to be mutually exclusive because, if it were otherwise, no effect could be given to the requirements of pars (a) to (c) of s 17(5). McHugh J (at 400 - 402) also referred to the reasoning of Dawson J and of Brennan J in Banovic, drawing a distinction between direct discrimination (where the discriminator is actuated by the attribute of the person) and indirect discrimination (where the discriminator is not so actuated, but the condition or requirement has the specified effect). McHugh J said that the conditions stipulated in s 17(5) could not be ignored in interpreting the section. Although Brennan J did not specifically address the issue, his approach (at 373 - 374) was consistent with his reasoning in Banovic, and with the view that matters within s 17(5) are not separately covered by s 17(1). The Supreme Court relied much upon the approach taken by Mason CJ and Gaudron J, but upon analysis, their approach is inconsistent with his Honour's conclusion. Mason CJ and Gaudron J found that discrimination might be "indirect", and fall with s 17(1) but not s 17(5), because indirect discrimination within s 17(1) "may occur otherwise than by means of the imposition of a requirement or condition" within the meaning of s 17(5). However, where there was a condition or requirement, their Honours do not suggest that the provisions of s17(5) as to reasonableness should be ignored. Thus, at least where s 17(5) applied, s 17(1) could not have any operation, for to do so would be to avoid the requirements of the legislature laid down in pars (a) to (c) of s 17(5). So too in the present case, where conduct is within s 8(1)(b), it cannot also be within s 8(1)(a).
CONCLUSIONS ON THE RESPONDENT'S CROSS-APPEAL AND NOTICE OF CONTENTION
52 In my opinion, there is substantial force in the respondent's arguments.
53 Uninstructed by authority, and reading the provisions of s 8 literally, but as a whole, it would appear that the legislature intended to focus attention upon the following two quite different situations:
54 First, where a person is treated unfavourably by another because of an attribute. There is no special statutory definition of the verb "treat" and it is not a term of art. Its primary dictionary definition is "1. To act or behave towards in some specified way: (e.g.) to treat someone with respect" (Macquarie Dictionary). That definition seems apposite here. Again, as noted in Prezzi, above, the adverb "unfavourably" appears to have its ordinary meaning. The dictionary definitions of the adjective "unfavourable" include "adverse", and this seems appropriate here. In other words, s 8(1)(a) is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards, the person complaining of discrimination.
55 Secondly, s 8 applies where, although the particular conduct is not aimed at a complainant, it has, or is likely to have, the "effect" of disadvantaging him or her, because of an attribute. In this context, the noun "effect" appears to have its primary dictionary meaning: "1. That which is produced by some agency or cause; a result; a consequence: (e.g.) the effect of heat" (Macquarie).
56 The drawing of a distinction between the intended operation of the two limbs of s 8(1) along these lines is both supported by, and, I think, provides the rationale for, s 8(2). That is to say, the legislature has proceeded upon the basis that s 8(1)(a) conduct is per se (i.e. of itself, whether reasonable or not) deemed to be discriminatory; whereas, by contrast, s 8(1)(b) conduct will be regarded as discriminatory only if it unreasonable. Both logic and experience would support the making of such distinctions: on the one hand, it may reasonably be anticipated that it would be easier for a complainant to prove the existence of circumstances which justify a finding of s 8(1)(b) conduct than s 8(1)(a) behaviour; but, on the other hand, it may be thought that some limit should be placed upon liability for "indirect" (i.e. s 8(1)(b) conduct) as distinct from "direct" (s 8 (1)(a) conduct) discrimination.
57 For these reasons, if the question were free from authority, I would accept the respondent's argument based as it is upon the text, structure and context of s 8. However, since his Honour felt constrained by High Court authority to hold otherwise, it will be necessary to consider the decisions he relied upon. In my view, his Honour was not so constrained, for the following reasons.
58 In Banovic, the form and substance of the legislation differed in some respects from the present statute.
59 Section 24 of the NSW Act defined the elements of discrimination on the ground of sex. Sub-section (1) read:
"A person discriminates against another person on the ground of his sex if, on the ground of -(a) his sex;
(b) a characteristic that appertains generally to persons of his sex; or
(c) a characteristic that is generally imputed to persons of his sex,
he treats him less favourably than in the same circumstances or in circumstances which are not materially different, he treats or would treat a person of the opposite sex."
60 Sub-section (3) read:
"A person discriminates against another person on the ground of his sex if he requires the other person to comply with a requirement or condition -(a) with which a substantially higher proportion of persons of the opposite sex to the sex of the other 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 other person does not or is not able to comply."
61 Section 25(2)(c) of the NSW statute renders it unlawful for an employer to discriminate against an employee on the ground of sex "by dismissing ... or subjecting [the employee] to any other detriment".
62 The circumstances of the case were far removed from the present kind of context. Women ironworkers had recovered damages from their former employer before the Equal Opportunity Tribunal of New South Wales on the grounds that it had discriminated against them within the operation of s 24(3) by denying them "gate seniority", and giving preference to male employees, and then, by reason of their lost seniority, had exposed them to retrenchment on the "last on, first off", principle. It was argued (unsuccessfully) on behalf of the appellant/employer (at 166 - 167) that the only criterion for retrenchment was employment after a particular date, something not referable to the sex of the employees; that the legislation would not operate sensibly if, in the case of a gender imbalance in a particular workforce, the employer had to create gender equality before it could, without breaching the Act, retrench employees for commercial reasons; and that the employer's earlier contravention of the Act did not ground "indirect" discrimination - were it otherwise, the argument ran, the employer would by subjected to a form of "double jeopardy".
63 It was held in Banovic by a majority (Deane, Dawson and Gaudron JJ) (Brennan and McHugh JJ dissenting) that although s 24(1) could not apply, the "last on, first off" principle, whilst itself unobjectionable, had exacerbated the adverse effects of past discriminatory acts; so that it was open to the Tribunal to find, in respect of retrenchments, that past discrimination on the ground of sex within the meaning of s 24(3) was repeated in circumstances where it was not shown to serve the employer's legitimate interests. It is clear then that the context in Banovic was far removed from the present case.
64 Deane and Gaudron JJ said (at 176) that s 24(1) and like provisions operate by reference to the grounds "which provides the basis [the `true' basis] for the act or decision in question".
65 Their Honours said (at 177):
"Even if it could be said that a factor common to all or to a significant proportion of those who were adversely affected by the decision of A.I.S. to retrench by the `last on, first off' method was that they were women, a further finding that that was the true basis of the decision would be necessary to render s. 24(1) applicable. See James v. Eastleigh Council. [A decision of the English Court of Appeal - see below.] There is no finding to that effect by the Tribunal. And the argument made on behalf of the first respondents does not even go so far as to suggest that the true basis of the decision to retrench by the method of `last on, first off' was in any way related to the fact that some of the persons who would be retrenched were women. Instead, it merely identifies the factor which caused some women ironworkers to be within the group retrenched or the group likely to be retrenched rather than within the group unaffected by the decision. That is not sufficient to render s. 24(1) applicable."
66 In the case cited, James v Eastleigh Council [1990] 1 QB 61, the plaintiff, who had retired, and his wife, both aged 61, went to a Council leisure centre. The wife was admitted free of charge but the plaintiff had to pay an admission fee. The Council only provided free admission to persons who had reached State pension age, that is, 65 for a man, 60 for a woman. The plaintiff alleged unlawful sex discrimination contrary to s 29 of the Sex Discrimination Act 1975 (U.K.), a provision similar to the NSW statute in relevant respects. However, the Court of Appeal rejected the claim of unlawful discrimination. The Court said (at 74) that the first limb of the relevant provision is looking to the case where, "subjectively", the defendant has treated the plaintiff less favourably because of his or her sex; that what is relevant under this limb is the defendant's reason for doing an act, not its causative effect. The first limb is referring throughout to the activities of the alleged discriminator:
"In the case of direct discrimination `a person discriminates against a [man] ... if on the ground of [his] sex he treats [him] less favourably ...'. Those words indicate that one is looking, not to the causative link between the defendant's behaviour and the detriment to the plaintiff, but to the reason why the defendant treated the plaintiff less favourably. ... [I]n a case where neither the overt condition imposed nor any covert reason [the `true' reason] relates directly to the sex of the plaintiff, ... it cannot be said that [the first limb applies] ... . The result of [a defendant] acting on grounds other than sex may produce a disparate impact on men and women: if so [the defendant's] actions may [nonetheless] constitute unlawful indirect discrimination". (Emphasis added)
67 The Court of Appeal held that, in discovering a defendant's reason for behaving as he has, intentions or motive are not irrelevant. But, even in the case of covert discrimination, the legally determinant matter is the true reason for the defendant's behaviour, not his intention or motive in so behaving (at 75).
68 The Court of Appeal (at 75) explained a further objection to construing the legislation so that there is discrimination "on the ground of" sex within s 1(1)(a) (i.e. the first limb) if the sex of the plaintiff is a substantial cause of the less favourable treatment:
"If there is direct discrimination in every case where there is a substantial causative link between the defendant's treatment and the detriment suffered by the plaintiff as a result of his sex I can see no room for the operation of subsection (1)(b). In every case in which a sexually neutral condition in fact operates differentially and detrimentally to one sex as opposed to the other, the imposition of such condition would be a substantial cause of detriment to the plaintiff by reason of his or her sex, i.e. it would fall within Mr. Lester's causation test and therefore constitute direct discrimination under subsection (1)(a). This plainly was not the intention of Parliament which was drawing a clear distinction between, on the one hand, those cases where the defendant expressly or covertly acts by reference to the sex of the plaintiff and, on the other, those cases where the defendant acted on grounds not expressly or covertly related to sex but his actions have caused a disparate impact as between the sexes."
69 Dawson J also referred to and applied James in Banovic (at 184). His Honour there said that "s 24(1) cannot be read so as to cover indirect discrimination, for to do so would be to render s 24(3) superfluous".
70 Brennan J, expressing (at 167) his agreement with McHugh J, said (at 170):
"The requirement of gate seniority is not, on its face, discriminatory on the ground of sex: it is, to use the jargon, `facially neutral'. It does not attract s. 24(1)(a). When an employer in dismissing employees applies a facially neutral requirement indifferently to all members of his workforce and the respective proportions of men and women within that workforce who comply or are able to comply with the requirement are not substantially higher and lower, the elements of discrimination falling within s. 24(3)(a) do not appear."
71 McHugh J said (at 202) that the construction which he placed upon s 24(3) is the one "which exposes facially neutral but nevertheless discriminatory practices. It is a construction, therefore, which promotes the very object of s 24(3), viz., the elimination of indirect discrimination".
72 It follows, in my opinion, that there is nothing in any of the judgments in Banovic which is inconsistent with the construction I would have put upon s 8 if uninstructed by authority. Indeed, Banovic supports that construction.
* In Waters, above, the High Court construed s 17 of the Equal Opportunity Act 1984 (Vic). It will be recalled that s 17(1) relevantly provided that a person discriminates against another person, if on the ground of the status of the other person, the first-mentioned person treats the other person less favourably than the first-mentioned person treats or would treat a person of a different status; and that s 17(5) provides that, for the purposes of s 17(1), a person discriminates against another on the ground of status if (a) the first-mentioned person imposes on the other person a requirement or condition with which a substantially high proportion of persons of a different status do or can comply; (b) the other person does not or cannot comply; and (c) the requirement or condition is not reasonable.
73 One question in Waters was the proper characterisation of the alleged "requirement or condition" for the purposes of s 17(5). It was argued (at 352) that "reasonable" in s 17(5)(c) is a reference to reasonableness in relation to the victim alone. On this issue it was held by Brennan, Deane, Dawson, Toohey and McHugh JJ (Mason CJ and Gaudron J dissenting) that "reasonable" referred to what was reasonable in all the circumstances of the case. It will be seen then that, given the differences in the legislation, the issues in Waters do not arise, at least immediately, in the present case.
74 Brennan J said (at 373):
"Although the Corporation refused to perform the special services for the disabled, the refusal was not discriminatory as that concept is defined by s. 17(1) of the Act. The special services were not refused `on the ground of ... status'; conductors were simply withdrawn from modern trams, presumably on the ground of economy, though the adverse impact of the withdrawal fell more severely on the disabled than on the general public. But the Corporation treated the disabled and the general public alike, for the special services which had been provided by conductors had never been available to those who were not disabled except, perhaps, for the courtesies extended to all passengers and those courtesies were uniformly withdrawn from modern trams irrespective of the status of their passengers."
75 Brennan J noted (at 374) that, at first instance, it was agreed that s 29(1)(a) (dealing with discrimination by a refusal to supply) had no direct relevance to the claim of discrimination there, which was based upon s 29(1)(b) (dealing with the terms of supply or performance) and s 17(5).
76 Dawson and Toohey JJ said (at 392 - 393):
"In Australian Iron & Steel Pty. Ltd. v. Banovic, Dawson J. expressed the view that ss. 24(1) and 24(3) of the Anti-Discrimination Act 1977 (N.S.W.), which are to some extent comparable with ss. 17(1) and 17(5) of the Act in this case, dealt with direct discrimination and indirect discrimination respectively in a mutually exclusive way. This was because if s. 24(1) (the equivalent of s. 17(1)) embraced indirect as well as direct discrimination, then s. 24(3) (the equivalent of s. 17(5)) would be superfluous. Thus Brennan J. in Australian Iron & Steel Pty. Ltd. v. Banovic held that treatment which was facially neutral would not fall within s. 24(1) (the equivalent of s. 17(1)). Subject to the effect (if any) of the opening words of s. 17(5), which are referred to below, this reasoning leads equally to the conclusion that discrimination within s. 17(5) cannot be discrimination within s. 17(1)."
77 McHugh J expressed the same opinion (at 400).
* Finally, in I W v City of Perth, above, a claim of discrimination under s 66A of the Equal Opportunity Act 1984 (WA) (the counterpart of s 8 here) was made after a Council had refused a planning approval. Brennan CJ and McHugh J, citing Waters at 392 - 393, noted (at 8) that the appellant "relied on s 66A(1) which is concerned with direct discrimination rather than s 66A(3) which is concerned with indirect discrimination".
78 It follows, in my view, that the judgments in Waters and I W v City of Perth, as well as Banovic, also support the mutually exclusive or distributive construction of s 8 which, as I think, is indicated by its structure, language and content.
79 Moreover, as in Banovic, there was no finding by the Tribunal that the true reason for the respondent's actions was directly related to the occupation of the appellant.
80 In these circumstances, I need not consider whether s 57N applied here in any event.
81 I would, accordingly, allow the cross-appeal and set aside the declaration made in par 1 of his Honour's orders.
THE APPELLANT'S APPEAL
82 In her appeal to this Court, the appellant seeks to overturn the conclusion of the Supreme Court that the respondent's conditions or requirements were "reasonable" for the purposes of s 8(2) and (3). The following arguments are advanced on her behalf:
* The ultimate question of what is "reasonable" is one of mixed fact and law.
* The interpretation of s 8(3) is a question of law.
* The question whether facts found answer a statutory description is a question of law, in the sense explained in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1.
* The Supreme Court took too narrow a view of its power to review the Tribunal's finding of "reasonableness". Reliance by the Supreme Court upon Waters, above, for a proposition that "reasonableness" for the purposes of anti-discrimination legislation is a question of fact, was not justified.
* The Tribunal's findings in this area were not supported by sufficient evidence. Instead, they were based in large part on an assertion by the respondent of the existence of "commercial factors", and unsupported by objective evidence.
* In particular, no statistical or anecdotal evidence was adduced to demonstrate that sex workers' creditworthiness was not reliable.
* In other areas, the proportionality test prescribed by s 8(3)(c) was misapplied by the Tribunal. Its findings relied upon non-commercial aspects, such as an "image" of a family newspaper, and complaints from readers. Paragraph (c) requires a balancing of rights between the parties. It is possible to achieve that balance by allowing advertising, but on terms that take account of the newspaper's image, and readers' tastes, and the Tribunal could, and should, have done so.
* Further, the Supreme Court should not have held that a complainant bore the onus of establishing what was "reasonable" for the purposes of s 8(2) and (3). Although the Supreme Court relied in this regard upon observations by McHugh J in Waters, above, the structure of the relevant legislation there was different: in the Victorian legislation, "reasonableness" is an intrinsic part of the definition of discrimination. By contrast, s 8(2) of the Act, as a separate provision, is more like a defence, albeit one of limited application (i.e. limited to s 8(1)(b) situations). Since proof of "reasonableness" is likely to depend upon facts peculiarly within a respondent's knowledge, that party should have the onus of proof.
83 (The appellant also challenged the reliance by the Supreme Court upon s 57N of the Act. As has been mentioned, on the approach I have taken, it is not necessary for me to consider this aspect.)
CONCLUSIONS ON THE APPELLANT'S APPEAL
84 I cannot accept the appellant's arguments.
85 As the primary Judge noted at par 55, the considerations mentioned in s 8(3) are, by express provision, not to be taken as an exhaustive statement of the considerations that may properly be taken into account in determining "reasonableness". Moreover, as Brennan J has observed (in the passage cited above from Waters (at 378)), the questions that arise in this area are ones "of fact and degree". Dawson and Toohey JJ were of the same view in Waters. In their opinion, the issue was "a question of fact" (at 395) and "a question of fact rather than law" (at 396). As has been seen, s 108D(1) of the Act provides for an appeal on a question of law.
86 It is true that an error of law will arise if "the true and only reasonable conclusion contradicts the determination" (Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; (1956) AC 14 per Lord Radcliffe at 36). It may also be accepted that "if the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law" (emphasis added) (The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 per Jordan CJ at 138; see also Vetter v Lake Macquarie City Council [2001] HCA 12 per Gleeson CJ, Gummow and Callinan JJ at [23] - [32].) But, generally speaking (that is, in the absence of a special context and none is present here) where a statute (as in the present case) uses words according to their ordinary meaning, and it is (as, in my view, here) reasonably open to hold that the facts of the case fall within those words, the question as to whether they do, or do not, is one of fact (see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 395 - 396).
87 I agree with the primary Judge that what was "reasonable" raised "clear and simple issues of fact".
88 It follows, in my view, that his Honour was correct in holding that there was no question of law involved in this connection. Accordingly, this aspect of the appeal to the Supreme Court should be dismissed.
89 I would add, for completeness, that even if a question of law were to be found to have arisen here, the scope of permissible appellate intervention would necessarily be limited. Deane J in Waters observed (at 383) that a determination of "reasonableness" involves "an element of wide discretionary judgement". In this regard, Gleeson CJ, Gaudron and Hayne JJ observed in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 74 ALJR 1348 (at 1354):
"[19] `Discretion' is a notion that `signifies a number of different legal concepts'. In general terms it refers to a decision-making process in which `no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment. (Emphasis added)[20] In the present case, the decision by Boulton J to terminate the bargaining period involved, in effect, two discretionary decisions. The first was as to his satisfaction or otherwise that the industrial action being pursued posed a threat for the purposes of s 170MW(3) of the Act. Although that question had to be determined by reference to the facts and circumstances attending the industrial action taken in support of claims with respect to a certified agreement, the threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity. In a broad sense, therefore, that decision can be described as a discretionary decision. And if Boulton J was satisfied that there was a threat for the purposes of s 170MW(3), that necessitated the making of a further discretionary decision as to whether the bargaining period should be terminated.
[21] Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
`If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so'."
90 Even if, contrary to my view, the Tribunal's conclusions on the application of s 8(2) and (3) did raise a question of law, and was "discretionary" in the above sense, no error in the process undertaken by the Tribunal has been demonstrated, in my opinion. The respondent led evidence of the considerations upon which it sought to rely in this connection, thus assuming at least an evidentiary onus. In my view, those considerations were not legally irrelevant to the Tribunal's task in this regard. Upon analysis, the challenge made here on behalf of the appellant is no more than an attempt to re-agitate the merits, without any real indication of any error on the part of the Tribunal. The true basis of the appellant's complaint appears to be no more than one of suggested lack of cogency in the respondent's evidence. This was not sufficient to warrant interference by the Supreme Court, even if it be assumed, for the moment, that it had jurisdiction to do so on the assumption that a question of law did arise.
COSTS
91 Although, ultimately, the appellant was unsuccessful in the Supreme Court, his Honour did not apply the usual rule that costs follow the event here. His Honour said:
"3. In short, I allowed the appeal in part and dismissed it in part.4. Counsel for the parties asked to be heard on costs and lodged written submissions.
5. In the circumstances, I think that the appropriate order is that the parties each bear their own costs. The respondent was correct in submitting that the appellant substantially lost the appeal and was successful only on one issue of law, namely the need for the Tribunal to apply a `but for' test for the purposes of deciding whether the respondent's unfavourable treatment of the appellant was `because of' the appellant's occupation of sex worker. On the other hand, it was a real issue and it was not the fault of the appellant or her advisers that an incorrect test had been applied by the Tribunal. Furthermore, although what was in issue in the proceedings was discrimination against the appellant herself and not discrimination against sex workers in general, or a group of sex workers representing sex workers in general, the case did exhibit some features of 'public interest' litigation. The usual order as to costs in adversarial proceedings is not always appropriate in such litigation: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. The public interest element, however, is not so great that the respondent should be ordered to pay the appellant's costs.
6. I therefore order that the appellant and respondent respectively pay her and its own costs of the appeal."
92 The respondent now cross-appeals from this order.
93 The respondent submits that his Honour should not have relied upon Oshlack in the present context. In Oshlack, the High Court held that a trial Judge's discretion did not miscarry in departing from the usual order for costs where (a) the open standing provisions of environmental legislation allowed "any person" to bring proceedings; (b) the applicant stood to gain nothing personally from the litigation; and (c) the respondent was a government authority.
94 The respondent argues that none of these features were present here and that the appellant should have been wholly unsuccessful in the Supreme Court.
95 The respondent refers also to observations in South-West Forest Defence Foundation v Executive Director, Department of Conservation and Land Management (WA) (No 2) [1998] HCA 35; (1998) 72 ALJR 1008 at 1008 - 1009, in Friends of Hinchinbrook Society Inc v Minister for the Environment [1998] FCA 432; (1988) 84 FCR 186 at 188, and in Hollier v Australian Maritime Safety Authority [1998] FCA 975, to the effect that there is no general "public interest" exception to the general rule that costs follow the event.
96 In my view, these submissions should be accepted. There was, with respect, no valid special reason here for departing from the usual rule at first instance. The position is even stronger on appeal (see Scott v Secretary, Department of Social Security (No. 2) [2000] FCA 1450 at [6]).
ORDERS
97 I propose the following orders:
3. Appeal dismissed, with costs.
4. Cross-appeals allowed with costs. Set aside order 1 and the order for costs made by the Supreme Court. In lieu thereof, order that the application be dismissed, with costs.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Beaumont. |
Associate:
Dated: 5 April 2001
IN THE FEDERAL COURT OF AUSTRALIA |
|
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY |
A 84 OF 1999 |
BETWEEN: |
JUDITH EDGLEY APPELLANT |
AND: |
THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED RESPONDENT |
JUDGE: |
BEAUMONT ACJ, HIGGINS and GYLES JJ |
DATE: |
5 APRIL 2001 |
PLACE: |
SYDNEY (HEARD IN CANBERRA) |
HIGGINS J:
98 I agree with Beaumont ACJ. It is not clear to me that the restriction on the right of appeal to a question of law, only, purportedly imposed by s 108D of the Discrimination Act 1991 (ACT) ("the Act"), can stand with s 48A Australian Capital Territory (Self-Government) Act 1988 (Cth) nor with s 20, to like effect, of the Supreme Court Act 1933 (ACT) which repeats that Commonwealth law - see also Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101.
99 However, I am of the view that it is unnecessary to consider that question for two reasons.
100 First, it was not argued or relied on by the appellant.
101 Second, it is the legislative intention, expressed through s 108D of the Act that appeals from the Tribunal be confined to questions of law. Even if that restriction be beyond power it should ordinarily be respected unless it appears that to do so would result in injustice.
102 The finding of the Tribunal, whether required to so find positively or not, that the restrictions placed on the appellant in relation to her advertising of adult services, does not seem to me, even though indirectly discriminatory, to be such, even if the reasonableness thereof was open to question, such that justice is not done unless those, or some of those, restrictions are removed.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Higgins. |
Associate:
Dated: 5 April 2001
IN THE FEDERAL COURT OF AUSTRALIA |
|
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY |
A 84 OF 1999 |
BETWEEN: |
JUDITH EDGLEY APPELLANT |
AND: |
THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED RESPONDENT |
JUDGE: |
BEAUMONT ACJ, HIGGINS and GYLES JJ |
DATE: |
5 APRIL 2001 |
PLACE: |
SYDNEY (HEARD IN CANBERRA) |
GYLES J:
103 I agree with Beaumont ACJ. This makes it unnecessary to consider all of the ramifications of the legislature having (by s 7 of the Discrimination Act 1991 (ACT) ("the Act")) defined "profession, trade or calling" (a matter of the choice of the individual) as an "attribute" of a person for the purposes of s 8 of the Act. In particular, there is no occasion to consider the correctness of the finding by the Discrimination Tribunal of a breach of s 8(1)(b) of the Act, leaving aside s 8(2), as there was no challenge to that finding before us.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. |
Associate:
Dated: 5 April 2001
Counsel for the Applicant: |
Mr O'Keefe |
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Solicitor for the Applicant: |
Darryl Perkins |
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Counsel for the Respondent: |
Mr D Mossop |
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Solicitor for the Respondent: |
Minter Ellison |
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Date of Hearing: |
14 February 2001 |
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Date of Judgment: |
5 April 2001 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2001/379.html