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Patmore, Glenn --- "Moving Towards a Substantive Conception of the Anti-Discrimination Principle: Waters v Public Transport Corporation of Victoria Reconsidered" [1999] MelbULawRw 4; (1999) 23(1) Melbourne University Law Review 121


Moving Towards a Substantive Conception of the Anti-Discrimination Principle: Waters v Public Transport Corporation of Victoria Reconsidered

GLENN PATMORE[*]

[Typically, definitions of direct discrimination in anti-discrimination statutes are interpreted in a formalistic way, which requires that any distinction based on personal differences be prohibited. Numerous scholars have pointed out that this interpretation may in fact entrench the disadvantaged position of women and minority groups. My aim in this article is to put my case in a way that provides fair treatment of the disadvantaged. As I share this concern, I argue for a substantive interpretation of statutory definitions of discrimination, which requires that only distinctions based on personal differences which cause prejudice or disadvantage be prohibited. Support for such an interpretation can be found in the ordinary meaning of statutory definitions of discrimination and in a reconsideration of the leading High Court case on anti-discrimination legislation, Waters v Public Transport Corporation of Victoria.]

I INTRODUCTION

Discrimination, as a concept, is controversial. Let me give an example to illustrate my point. As a person with a visual impairment, should I expect that the Public Transport Corporation (‘the Corporation’) provide the service of a conductor on a tram to advise me of a stop? Regardless of the Corporation’s intentions, should the Corporation be prevented from removing conductors because such a decision would have an adverse effect on me? Is it justifiable to deny such a service because the service costs too much?

The answers to the questions above become all the more critical since the failure to provide assistance to meet special needs may affect a person in at least two ways. First, a person may be affected in a functional way, that is, in relation to his or her capacity to act as an individual in society. The development of a person’s individuality may be severely limited if he or she is not provided with access to education, housing, goods and services, and employment. Secondly, and in a related way, failure to provide assistance to meet special needs may affect a person emotionally, bearing upon his or her temperament and disposition. Failure to provide access to an essential service may make a person sad or angry, agitated or even anxious. Internalisation of these feelings and sensitivities in relation to such treatment may have serious consequences psychologically. The denial of an opportunity or a benefit on the basis of a personal characteristic is not likely to be forgotten. Memories of such treatment will shape future experiences: as a result, an individual’s self-confidence and self-realisation may be limited.

As a lawyer, I try to find solutions to these problems by looking to the law. The relevant law in Australia is to be found in Commonwealth, State and Territory complaint-based legislation. These anti-discrimination or equal opportunity statutes make unlawful certain forms of less favourable treatment based on personal characteristics such as race, sex, sexual orientation and disability.[1]

To explain the operation of this type of legislation, certain concepts may be relied upon. These include formal equality (that individuals be treated in strictly the same way), substantive equality (that individual personal differences be accommodated), formal discrimination (that any distinction based on personal differences be prohibited) and substantive discrimination (that only distinctions based on personal differences which cause prejudice or disadvantage be prohibited). As you might expect, the preference of one concept over another is a matter upon which people may differ. The difference of opinion poses a legal and academic dilemma, namely that each of these concepts may provide a different way of dealing with questions of discrimination. For instance, different approaches may be taken in relation to the questions posed by the above example. I explore these questions and approaches later in my paper.

As a lawyer, I am also accustomed to taking on the role of an advocate. In this paper, I will be arguing for an interpretation of anti-discrimination legislation which seeks to protect, or prevent discrimination against, individuals and groups who suffer political, legal and social disadvantage, particularly women and members of minority groups. My aim is to argue my case in a way that provides fair treatment of the disadvantaged in relation to those who are not disadvantaged. I am not alone as such an advocate; these issues have been the subject of recent academic commentary. In particular, the concept of formal equality or strict equal treatment has troubled some scholars, who have attempted to devise strategies to challenge its grip as the dominant juristic construction of the legislation. This construction, they argue, may in fact entrench the disadvantaged position of women and minority groups. Notable contributions to this body of scholarship, which has focused on the concept of equality, have been made by Margaret Thornton,[2] Rosemary Hunter[3] and Jenny Morgan.[4]

In contrast, I will argue that an interpretation focusing on discrimination rather than equality provides an alternative approach to construing this type of legislation.[5] An interpretation based on a substantive conception of discrimination is in accord with a view which appears to have emerged from the leading High Court case on anti-discrimination legislation, Waters v Public Transport Corporation of Victoria.[6] The crux of my argument is that some judges in the High Court have begun to speak the language of discrimination rather than equality when interpreting the relevant legislation. Thus, in order to ameliorate the condition of individuals and groups who suffer prejudice and disadvantage, advocates and scholars should be encouraged to rely upon and further develop such an approach.[7]

My argument can be stated generally. Statutory definitions of discrimination prohibit treating a person less favourably on the basis of certain personal characteristics.[8] The ordinary meaning of the term ‘less favourably’ would appear to be quite clear. The words mean what they say: only disadvantageous treatment is forbidden, and therefore not every difference in treatment amounts to a prohibited distinction. This form of prohibition reflects a substantive rather than a formal conception of discrimination.

My argument will be developed in four parts. In Part I, I will describe such concepts as equality and discrimination. Each can be recognised as both a formal and a substantive concept. I will show how a substantive conception of discrimination and equality provides alternate strategies to assist those individuals and groups who suffer prejudice or disadvantage. In Part II, I will explain how the concepts of equality and discrimination govern the interpretation of anti-discrimination legislation. In particular, I will take Waters v Public Transport Corporation of Victoria as my case study. In Part III, I explore the implications for my case study of the anti-discrimination legislation passed in 1995 by the Victorian Government. Finally, in Part IV, I comment on the future of a substantive conception of discrimination.

II PHILOSOPHICAL CONCEPTS

In this part, I will describe the concepts of equality, discrimination and arbitrariness. Each concept will be given separate consideration. I will show that equality and discrimination can be analysed in formal and substantive terms. Hence, different meanings may be attributed to each of these concepts.[9]

A ‘Equality’

Concepts of equality have been read into anti-discrimination legislation because the legislation incorporates certain comparability requirements. Equality is a comparative concept, and, consequently, a person can ascertain whether they have ‘equality’ only by comparing their living conditions with the conditions of others.[10] Obviously, comparisons may be made in a number of ways because various reference points or standards may be adopted.[11] The standards contained in the concept of formal equality in Australian law have been the subject of much recent, particularly feminist, scholarly criticism.

The philosophy of formal equality is closely associated with the doctrine of identical treatment. This precept requires that a comparison be undertaken in the abstract: mere sameness or difference is treated as determinative.[12] That is, as long as two people are the same, different treatment is prohibited. If two people are different, same treatment is not required.[13] Comparisons may also be undertaken contextually. This conception of equality stresses certain kinds of differences.[14] For instance, the similarly situated test requires that two people in the same situation be treated identically, regardless of personal characteristics such as sex or race. Any difference in treatment in the same situation is prohibited. Alternatively, it suggests that different treatment in a different situation is permitted. The similarly situated test is somewhat broader than the strict equal treatment test in as much as it involves a consideration of differences arising from the ‘situation’.[15] The situated nature of this test is assumed to be a guarantee of fair treatment.

This assumption has been questioned in relation to the treatment of women in the workplace. While the principle of same treatment appears to be fair when a woman applies for a job with the required educational and occupational experience, it becomes problematic when a woman claims a right to maternity leave, as this may be understood as differential treatment of men.[16] Also, if a woman is refused employment because she might become pregnant, this may be understood as permissible differential treatment of women because of their different biological needs.[17] Thus, the application of the similarly situated test in this way fails to recognise women’s unique ability to bear children.

In response to the difficulties posed by the formal equality model and the similarly situated test, another approach has evolved: that of substantive equality. Put simply, this approach requires the accommodation of differences based on personal characteristics,[18] for example, biological differences between men and women such as pregnancy and childbirth, as well as social characteristics such as child rearing. Proponents of substantive equality contend that the manner in which people approach problems and associate with other people may vary according to their sex and ethnicity, and does not necessarily correspond to that of the historically dominant group in society (Anglo-Celtic, able-bodied, heterosexual males).[19]

The behaviour patterns and attributes of the historically dominant group form a basis for existing rules, policies and practices used to allot positions and benefits in organisations and institutions. These policies and practices define the norm, and it is against this norm that same treatment is assessed.[20] It is little wonder, then, that those who are not members of the dominant group find that their life experiences are overlooked when their position is assessed under dominant norms.[21]

Thus, substantive equality recognises and values, or compensates for, differences in life experience ignored by assessment under dominant norms to the extent that members of non-dominant groups are different from members of the dominant group.[22] It entails a consideration of the application of dominant norms to non-dominant groups, and acknowledges and values differences resulting from that comparison.[23]

B ‘Discrimination’

The concept of discrimination could provide another remedy against certain treatment that disadvantages members of non-dominant groups. Concepts of discrimination are incorporated into anti-discrimination legislation because the legislation incorporates the wording ‘less favourably’. As I suggested in my introduction, these words may be defined in substantive terms because they refer to ‘less favourable’ treatment on the basis of a personal characteristic such as race, sex, sexual orientation or disability. It would seem that only disadvantageous treatment is prohibited. However, members of non-dominant groups may not be able to rely on this interpretation because this conception of discrimination is not universally accepted. There are two different meanings of discrimination: one which is substantive and one which is formal.[24]

The formal meaning of discrimination refers to any distinction based on a personal characteristic. Thus, any difference in treatment which results in a distinction based on such a characteristic is presumed to be impermissible, irrespective of whether there is actual disadvantage suffered. This form of classification entails a purely descriptive analysis. Analytically, ‘it refers to a category of actions that — in principle — can be distinguished from other actions’,[25] for example a person who is able to discriminate between two things, or a ‘person with discriminating taste’.[26] The formal meaning of discrimination has given rise to successful challenges to special measures programs designed to ameliorate the position of disadvantaged individuals and groups. Such programs infringe formal conceptions of discrimination simply because they draw a distinction between, for instance, men and women.[27]

The substantive characterisation of discrimination refers to a disadvantageous distinction: a distinction which disregards the legitimate interest of a person or group. Such a distinction or classification requires an evaluative analysis.[28] Analytically, it refers to a person who discriminates against another person or a group. That is, the word ‘discrimination’ ‘implicitly carries the suggestion of unfairness in that the discriminator has adverted to an improper or irrelevant consideration in the making of a decision’.[29] Most notably, ‘improper or irrelevant consideration’ refers to a decision which is prejudicial to the victim or results in the victim suffering political, social or legal disadvantage.

Prejudice occurs when a decision is based on personal characteristics which are devalued by others. Devalued worth may appear in many forms: fear, hostility, antagonism, indifference, paternalistic or stereotypical assumptions of inferiority, or being shunned or mistreated. Each of these responses supposes that members of one group are less worthy than other people.[30]

Disadvantageous treatment occurs when a decision based on personal characteristics produces harmful results — results which are to some extent invidious, victimising or stigmatising.[31] A perpetrator may stigmatise a victim as inferior,[32] simultaneously confirming their contempt towards the victim. Consequently, a perpetrator will deny to a member of one group an opportunity that members of other groups enjoy. Regrettably, the denial of an opportunity will often be only one of many. As acts of discrimination tend to occur in ‘pervasive patterns, their victims suffer especially frustrating, cumulative and debilitating injuries’.[33] This fosters a sense of inferiority of the group vis-à-vis the rest of society.[34] The need to remedy stigmatic harm appears to have been the rationale for Warren CJ’s observation in Brown v The Board of Education of Topeka that the segregation of black public school students ‘generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone’.[35]

It must be emphasised that the concept of substantive discrimination refers to actual disadvantage rather than superficial or technical disadvantage. Hence, not all forms of disadvantage will amount to discrimination. Therefore, many special measures programs, although infringing formal discrimination, would not infringe substantive discrimination because such programs would not amount to prejudice or disadvantage.

C ‘Arbitrariness’

The anti-discrimination principle is associated with another well known moral and practical principle which forbids treating persons arbitrarily or irrationally.[36] Analytically, the rationality of a classification is ascertained by considering the relation between the classification itself and the legitimate end to be attained. There must be an evaluation of whether the classification is ‘reasonably’ designed to achieve those ends.[37] Distinctions which the law deems to be rational are generally held not to amount to discrimination, or, alternatively, rational distinctions often constitute justifiable discrimination. In Australia, this form of analysis is also referred to as a proportionality test.[38]

It remains to summarise the key aspects of the preceding concepts. An arbitrary or disproportionate classification pertains to an irrational distinction. Formal discrimination is concerned with all distinctions which are based on personal characteristics. Substantive discrimination is concerned with disadvantageous distinctions which are based on personal characteristics. Formal equality requires that all persons should be treated identically, thereby ignoring personal differences. Substantive equality endeavours to accommodate personal differences.

There is not likely to be any difference in result if an interpretation of anti-discrimination legislation is based on similar concepts of equality and discrimination, for instance formal equality and formal discrimination. Both formal equality and formal discrimination are infringed if there is any difference in treatment on the basis of personal characteristics. However, if different concepts of equality or discrimination are relied upon, such as formal and substantive discrimination, very different results are likely to occur. Unlike formal discrimination, substantive discrimination will not be infringed by every distinction based on personal characteristics. The adoption of different conceptions by members of the High Court in the Waters decision forms the focus of the remainder of this paper.

III DISCRIMINATION, EQUALITY AND ARBITRARINESS IN THE HIGH COURT

In Part I, I presented a descriptive argument. I described the key concepts underpinning anti-discrimination legislation: namely, the concepts of equality, discrimination and arbitrariness. I drew distinctions between the purposes of these concepts and between their respective outcomes. My focus was on the former rather than the latter. In Part II of my paper, I rely on an explanative argument. I explain the application of these definitions to detail how the judges relied on each concept in their construction of anti-discrimination legislation. Importantly, some judges in the High Court in Waters began to speak the language of substantive discrimination when interpreting the relevant legislation.

A Waters v Public Transport Corporation of Victoria

In 1989, the Public Transport Corporation of Victoria followed a direction from the Minister for Transport pursuant to the Transport Act 1983 (Vic) to remove conductors from trams and to introduce a scratch ticket system. The new ticket system required travelers to purchase tickets at a retail outlet, and to validate the ticket at the commencement of the journey by scratching the surface to reveal the time and date of travel. The scratch ticket system was to be made a universal system for buying tickets for travel on trams, trains and buses. Nine people complained to the Equal Opportunity Board. Each of them had a disability which made it exceedingly difficult, if not impossible, to use scratch tickets. While people with cerebral palsy could not scratch the ticket, some people with an intellectual disability found it difficult to identify the relevant time and date. By reason of their disability, some of the applicants, particularly those people with a visual impairment, could not travel on trams without conductors. They alleged that the ministerial direction implementing changes to the transport system constituted discrimination against each of them and against persons with disabilities generally.

The applicants were successful before the Board. However, that decision was overturned on an appeal to the Supreme Court of Victoria. They then appealed to the High Court and were successful.[39] Joint judgments were delivered by Mason CJ and Gaudron J and by Dawson and Toohey JJ. Deane, Brennan and McHugh JJ delivered separate judgments. Below, I focus specifically on each judge’s consideration of the statutory definitions of discrimination in order to explain their Honours’ interpretation of the Equal Opportunity Act 1984 (Vic).

The definitions of discrimination considered in Waters were contained in s 17(1) and (5) of the Equal Opportunity Act 1984 (Vic). Section 17(1) provided that:

A person discriminates against another person in any circumstances relevant for the purposes of a provision of this Act 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.

Section 17(5) provided that:

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.

‘Private life’ and ‘status’ were defined in the 1984 Act in s 4(1).

1 Mason CJ, Gaudron and Deane JJ

Mason CJ and Gaudron J, with whom Deane J generally agreed, endorsed a substantive conception of the anti-discrimination principle. Their Honours supported their interpretation by pointing out that this legislation was designed to protect or enforce human rights. It was a ‘special’ form of legislation and should be given a broad purposive reading.[40]

Consequently, they could say of s 17(1) of the Equal Opportunity Act 1984 (Vic)[41] that:

A person discriminates in the described sense ‘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’. The sub-section 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.[42]

In stating this, their Honours defined direct discrimination as differential treatment based on an irrelevant or impermissible reason, and indirect discrimination as a requirement or condition which does not differentiate in terms of an irrelevant or impermissible reason, but has substantially the same or similar effect.[43]

In construing the definition of discrimination in s 17 of the Equal Opportunity Act 1984 (Vic), their Honours stated that the section was expressed in general terms apt to apply to both direct and indirect discrimination.[44] There are two possible explanations for their Honours’ view of this provision. They might have read s 17(5) in terms of s 17(1) because s 17(5) begins, ‘[f]or the purposes of sub-section (1)’. According to this view, the particular structure of s 17 explains its construction. However, their Honours did not quote this part of the section in explaining how s 17(1) describes what constitutes discrimination.

Alternatively, their Honours might have based their interpretation on the premise that the words ‘less favourably’, which appear in s 17(1) in the definition of discrimination and which they quoted, contain a general conception of discrimination which is the starting point for the interpretation of the definition of direct and indirect discrimination. This represents a rejection of a formalistic approach. In either case, it follows from their analysis that indirect discrimination could occur under s 17(1) in a way which would not otherwise fit within the criteria of s 17(5),[45] thereby reaching a wide range of discriminatory practices.[46]

Mason CJ and Gaudron J also said that it would hinder the object of the Act if s 17(1) were to be interpreted as requiring an intention or motive to be proved to establish discrimination.[47] Rather, it is enough that the material difference in treatment is based on the status or private life of that person.[48] This was a substantive approach because it entailed consideration of the conscious or unconscious basis of the decision.[49]

Their Honours suggested that s 17(5) was to be construed in accord with the aim of the legislation to protect human rights. The effect of the notion of ‘reasonableness’ contained within s 17(5) limited the definition of ‘discrimination’. The meaning of ‘reasonable’ ‘must be ascertained by reference to the scope and purpose of the Act’,[50] the purpose being to eliminate discrimination on the ground of personal characteristics in those areas in which the Act operates. This made clear that discrimination was the pre-eminent concept underpinning this legislation. The discrimination with which the Act was concerned was ‘discrimination against, rather than discrimination between, persons with different characteristics’.[51] Their Honours explained:

The notion of ‘discrimination against’ involves differentiating by reason of an irrelevant or impermissible consideration. ... The notion of ‘discrimination between’ involves differentiating on the basis of a genuine distinction, which, in the context of anti-discrimination legislation, must be a characteristic that has not been declared an irrelevant or impermissible consideration.[52]

Their Honours’ definition of ‘discrimination against’ accords most appropriately with the substantive meaning of discrimination. Characterising discrimination as a difference based on an irrelevant or impermissible characteristic seems to require a substantive rather than a formal inquiry. Their Honours went on to say that the function of ‘reasonable’ in s 17(5) was to identify those cases in which a requirement or condition was a distinction that was not rendered impermissible by the Act.[53] It followed that reasonableness was the device to distinguish discrimination ‘between’ from discrimination ‘against’. If it was reasonable, then a distinction was being made, whereas if it was unreasonable, then it was producing a disadvantage.

While their analysis was clear, their Honours went on to propound a puzzling two-stage approach, that is: (i) ‘whether the requirement or condition reflects a distinction other than one based on status or personal life’; and (ii) ‘if so, whether the requirement or condition is appropriate or adapted to that distinction’.[54] While it seems clear that the words ‘appropriate and adapted’ refer to the prohibition against irrational treatment, the reference to ‘that’ distinction is puzzling in that it prompts the question ‘what distinction?’ (if the requirement or condition reflects a distinction other than those proscribed in the legislation). One possible explanation might be that the purpose of the requirement or condition cannot be to make a distinction on the basis of personal characteristics. If so, that would appear to be direct discrimination. The purpose of the requirement or condition might be to draw another distinction (for example, tall from short people rather than men from women). It follows that the requirement or condition must be appropriately adapted to the distinction which is putatively necessitated by the job (for example, tall–short).

However, their Honours later limited this approach, maintaining that if the concept of reasonableness was not limited by discrimination, there was nothing else to limit the relevant considerations in reaching a decision on that issue.[55] Perhaps the most plausible explanation is that the requirement or condition (other than a personal characteristic proscribed in the legislation) must be proportionate to the degree of disadvantage caused by the distinction. In other words, the requirement or condition must not disproportionately affect a complainant. For example, a requirement that a tall person be engaged to perform a particular acting role would satisfy a proportionality test to the extent that a certain height is required for that particular part. By contrast, a general preference for tall over short actors might have a disproportionate impact on some people with disabilities. My explanation would of course strengthen the view that their Honours were adopting a substantive conception of discrimination.

Indeed, this reasoning was reinforced by their Honours’ stating that it would be inappropriate to consider any financial or economic considerations which may have motivated the Corporation when determining the reasonableness of the removal of conductors from modern trams and the introduction of scratch tickets. Incorporation of such considerations would permit differentiating treatment based on a proscribed distinction.[56] For instance, if it were more expensive to operate trams with conductors, it would therefore be reasonable to remove conductors, despite the disproportionate impact on people with disabilities. Consequently, such an interpretation would limit the purpose of the definition of discrimination and would ‘open the way to justification of indirect discriminatory practices on grounds which are not available in the case of direct discrimination’.[57] Quite obviously, it would not be permissible to remove services to those with disabilities on the ground that they cost too much, as this would amount to direct discrimination under the Act. Their Honours noted that there is nothing to show that the consequences of direct discrimination are more objectionable and harmful to society than those of indirect discrimination. In other words, the effects of removing services to people with disabilities are just as objectionable whether the decision is based on direct or indirect discrimination. The connection between the concepts of direct and indirect discrimination was thus reinforced, but this time by stressing the harmful results of a decision or the degree of disadvantage. This suggested a substantive rather than a formal approach.

Finally, Mason CJ and Gaudron J would have remitted to the Board the issue of whether the introduction of scratch tickets and the removal of conductors from trams was reasonable. However, in this case, they said the Board should be guided by the view of the word ‘reasonable’ taken by the majority, as their Honours’ view of this section did not commend itself to the remaining judges of the court.[58]

2 Brennan J

Brennan J implied that the purpose of anti-discrimination legislation was to remedy unlawful discrimination, but only to the extent that it provided for formal equality. He distinguished between the negative right to be free of ‘adverse and unjust discrimination’ and the positive right to ‘provision of needed services’ for people with disabilities.[59] According to Brennan J, the former limited government action and was contained within the legislation. The latter required government action but was not referred to in the Act.

For Brennan J, the critical provision in the Act was s 29(1), which made it unlawful for a person providing services to discriminate on the grounds of impairment.[60] His Honour concluded that the introduction of the scratch ticket system did amount to a potential contravention of this provision, but that this was not true of the withdrawal of conductors. His judgment was primarily concerned with the meaning of a service and the withdrawal of conductors from the modern trams. In this respect, the relevant service under s 29(1)(a) was provision of tram transport for the general public and not the special services provided by conductors for the disabled (ie additional services). Thus, withdrawal of the special services did not amount to a refusal to perform the ordinary tram service within the meaning of s 29(1)(a). His Honour justified his conclusion by adopting the identical treatment standard: impaired persons were not to be provided with services not available to non-impaired persons.[61]

Brennan J said that the relevant service under s 29(1)(b) was the provision of tram transport for the general public.[62] That some trams had conductors and some did not was a feature of the service as it was performed. Thus, there was no relevant ‘term’ under the sub-section that travellers use trams without the assistance of conductors. The ‘requirement or condition’ in s 17(5)(a) was simply not applicable. Brennan J again adopted the identical treatment standard: impaired persons were to be provided with the same service as non-impaired persons.

His Honour’s view was not unproblematic. There was an apparent contradiction in claiming both that trams with conductors were a feature of the service under s 29(1)(b) and that trams with conductors were not part of the service as they were a special service under s 29(1)(a). One might conclude from this that the inconsistent application inherent in this approach is due to Brennan J’s attempt to justify the exclusion of a service previously provided to people with disabilities, presumably because of his belief that the Act only protects the negative right to be free from adverse discrimination. This approach was even more problematic because s 29(2) set out criteria to determine whether people with disabilities should be accorded the positive right to needed services.[63] Therefore, despite Brennan J’s assertion that the Act only provided for negative rights, quite clearly it made provision for positive rights.

Furthermore, Brennan J’s interpretation was unfair because it employed an able-bodied standard. He described services as provided to all but people with disabilities. This description allowed Brennan J to ignore the fact that the available services fell short of the needs of people with disabilities. He could safely hold that the Act did not impose a positive duty to perform additional services.[64] Lamentably, this reasoning represented an application of formal equality to dominant norms, and therefore perpetuated the norm of provision of public transport only for the able-bodied. Brennan J’s application of the identical treatment standard to the ‘unlawful discrimination’ provisions also allowed him to exclude the withdrawal of conductor services from consideration under the definition of discrimination in the Act.

However, his Honour went on to explain that definition. He argued that, prima facie, discrimination exists where a requirement or condition satisfies the first two parts of s 17(5) and the requirement or condition is not reasonable.[65] There are two aspects to reasonableness: (i) ‘whether the imposition of the condition is appropriate and adapted to the performance of the activity’,[66] in relation to which Brennan J agreed generally with Mason CJ and Gaudron J; and (ii) ‘whether the activity could be performed ... without imposing a requirement or condition that is discriminatory ... or that is as discriminatory as the requirement or condition imposed’[67] (a question which requires consideration of the general circumstances of each case). Both (i) and (ii) ‘are questions of fact and degree’.[68] Furthermore, a balance must be struck between the legal freedom of a person to impose a requirement or condition in the areas in which the Act operates, and the interests of persons in a protected category.[69] Brennan J recognised that discrimination must not be on impermissible grounds, no doubt because this is what the legislation stated. Nevertheless, he ignored the purpose or rationale for this prohibition.[70]

Finally, to reiterate, Brennan J found that removal of conductors did not amount to unlawful discrimination. However, he would have returned to the Board the issue of the reasonableness of the introduction of scratch tickets.[71]

3 Dawson and Toohey JJ

Dawson and Toohey JJ adopted a common law approach emphasising the rights of the parties. This meant, quite positively, that they stressed the concept of discrimination rather than equal opportunity. However, it also led them to restrict the definition of discrimination based on textual considerations and the doctrine of precedent.

Their Honours explained the meaning of discrimination. They said:

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such ‘equal’ treatment is that the former is in fact treated less favourably than the latter. ... Both direct and indirect discrimination therefore entail one person being treated less favourably than another person.[72]

While their Honours referred to the different–same treatment standard, that standard was qualified by reference to the words ‘less favourable treatment’, pertaining to ‘the ground of some unacceptable consideration’ and apparently entailing a substantive rather than a formal approach. Furthermore, the possibility of the adoption of a substantive conception of discrimination was raised by their Honours’ reference to the connection between direct and indirect discrimination. However, such an interpretation was not explored, presumably because it was not raised on appeal.

Their Honours went on to confine the purpose and scope of the concept of discrimination by reference to the text of the Act and precedent. First, they contended that the formulae in s 17(1) and (5) dealt separately with direct and indirect discrimination, and did so in a manner which was mutually exclusive.[73] It is noteworthy that their Honours’ finding that these two sub-sections were distinct contradicted their earlier argument that the concepts of direct and indirect discrimination were related to each other. Secondly, Dawson and Toohey JJ (Deane J agreeing) held that, under ss 17(5) and 29(2), reasonableness entailed a weighing of all the relevant factors of the case, such as the financial or economic considerations of the respondent.[74] Other factors which might be relevant were the maintenance of good industrial relations, the observance of health and safety requirements, and the existence of competitors.[75] They approved Bowen CJ and Gummow J’s test in Secretary for the Department of Foreign Affairs and Trade v Styles:

The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other.[76]

While balancing of interests is the familiar liberal criterion relied upon to determine a rights claim, as Mason CJ and Gaudron J pointed out, if ‘reasonable’ is not limited by the concept of ‘discrimination’, there is nothing else in the Act to limit the considerations to be taken into account in reaching a decision on that issue.[77] In other words, Dawson and Toohey JJ did not define each party’s rights according to the balance of interests contained in the definition of discrimination and the exceptions contained in the Act, but according to a much broader balancing test involving consideration of a whole range of factors. Consequently, the broad ‘reasonableness’ exemption meant that some (though not all) acts could be removed from the definition of discrimination. Their Honours would have returned to the Board the issue of the reasonableness of the introduction of scratch tickets and the removal of conductors from trams.

4 McHugh J

McHugh J was concerned to maintain the rule of law, that is, a government of laws and not of men and women. His Honour drew heavily on the self-evident principle of statutory construction that all people are subject to the general law of the land. He implicitly relied on the concept of formal equality to limit the definition of discrimination in the Act.

[D]iscrimination can arise just as readily from an act which treats as equals those who are different [indirect discrimination] as it can from an act which treats differently persons whose circumstances are not materially different [direct discrimination]. Thus, both direct and indirect discrimination involve the notion of one person being treated ‘less favourably’ than another.[78]

His Honour read equal treatment as same treatment and less favourable treatment as different treatment, thereby adopting the identical treatment standard. Furthermore, the same approach was relied upon to expressly qualify the definition of indirect discrimination. McHugh J explained that it deals ‘with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life’.[79] Regrettably, his Honour emphasised the ‘equal imposition’ of the requirement or condition and did not explore the potential application of adverse-effect discrimination in the case at hand. There was no express acknowledgment that scratch tickets and removal of conductors might adversely affect the complainants more than able-bodied persons.

His Honour construed s 17(1) and (5) of the 1984 Act as mutually exclusive provisions. Thus, he explained that what fell within one sub-section was outside the other sub-section because of the different requirements of each provision. Section 17(1) referred only to direct discrimination. The words ‘on the grounds of’ and ‘by reason of’ required that the respondent must be actuated by the status or private life of the complainant.[80] Such an impermissible ground of discrimination ‘must be at least one of the factors which moved the discriminator to act as he or she did’.[81] There must be a causal connection between the act of the discriminator, which treats a person less favourably, and the impermissible ground of discrimination.[82] Section 17(5) referred only to indirect discrimination, defining it in an artificial sense because it refers to discriminatory effect. A person may be guilty of indirect discrimination although he or she was not actuated in any way by a ground of discrimination.[83]

Unlike Dawson and Toohey JJ, McHugh J openly acknowledged the potential conflict between his views that these two sections were mutually exclusive and that the concepts of direct and indirect discrimination were related to each other. While he resolved this tension by pointing to the different requirements of each provision, his explanation of the operation of the sub-sections was less clear: ‘The hypothesis upon which s 17(5) is built is that the alleged discriminator has not in fact treated the other person “less favourably”.’[84] However, as he noted, direct and indirect discrimination both entailed ‘less favourable treatment’. Thus his Honour’s discussion of the operation of the sub-sections did not reveal why the operation of the provisions resulted in an exclusive distinction.

McHugh J went on to further limit the definition of discrimination in s 17(5) by reference to legislative intention. The reasonableness of the ‘requirement or condition’ was part of the definition of discrimination in situations falling within s 17(5).[85] That being so, arguments based on any concept of discrimination that exists outside the statutory definition contained in s 17(5) were illegitimate because they utilised a form of interpretation not subject to the rule of law. Thus, his Honour was critical of the approach of Mason CJ and Gaudron J. By contrast, McHugh J relied on a common law presumption of legislative intention to hold that the term ‘reasonable’ should be taken to mean reasonable in all the circumstances of the case,[86] finding support for this view in the text of the legislation. Thus, he reached the same result as Dawson and Toohey JJ.

The strength of McHugh J’s criticism of Mason CJ and Gaudron J is diminished once it is recognised that each approach relies on conceptions of legislative intention found outside the sub-section and that his Honour did not consider the contrary argument that this sub-section must be read in the context of the legislation as a whole.

Lastly, like Mason CJ and Gaudron, Deane, Dawson and Toohey JJ, his Honour would have returned to the Board the issue of the reasonableness of the introduction of scratch tickets and the removal of conductors from trams.

5 Remitting of the Decision

In Waters v Public Transport Corporation and Victoria,[87] the Equal Opportunity Board again considered the removal of conductors from trams but did not consider the scratch ticket system because the system was discontinued prior to the hearing. The Board held that the complainants had not established that they could not comply with the ‘condition or requirement’ that they use driver-only trams. While the service provided by conductors was removed from trams it was replaced by a driver who now performs that service. Thus, the issue of reasonableness was not considered.[88]

B Waters Reconsidered: Equality or Discrimination?

In assessing the efficacy of my reconsideration of Waters, it is necessary to recognise that the doctrine of precedent fragments the impact of earlier decisions: later decisions refer only to parts of former cases. Useful fragments have been plucked from the judgment of Mason CJ and Gaudron J and from that of Toohey and Dawson JJ, but the impact of the case has not been considered as a whole.[89] No court has commented on the approaches of the various judges, which involved a variety of considerations: the rule of law, common law rights, protecting negative rights to freedom from adverse discrimination, and remedying ‘discrimination against’ individuals and groups. Distinctions of formal and substantive equality and discrimination have not been examined because only the rule, rather than its rationale and context, has been considered.[90]

I have argued that there is judicial support for the view that discrimination rather than equality is the most important concept underpinning this legislation. However, at the outset, I concede that both Brennan and McHugh JJ relied upon the concept of formal equality, though in quite different ways. McHugh J relied on the formal equality approach to construe the definitions of direct and indirect discrimination. His Honour appears to have assumed that discrimination is based on sameness–difference equality. Brennan J relied on the concept of formal equality to construe the concept of ‘unlawful discrimination’ contained in the provisions which specify the prohibited areas and permitted exceptions in the Act. No legislative basis for his reliance on formal equality was offered. The most plausible explanation is that he relied on it as a general conception which underpinned this legislation.

It is notable that Mason CJ and Gaudron J (with whom Deane J agreed) and Dawson and Toohey JJ defined discrimination by emphasising the concept of discrimination rather than equality. Mason CJ and Gaudron J did not mention the same treatment analysis at all, instead referring to less favourable treatment and so emphasising the concept of discrimination. Dawson and Toohey JJ referred briefly to the concept of equality, appearing to accept that it is qualified by the concept of discrimination.

Mason CJ, Gaudron, Deane, Dawson and Toohey JJ all recognised that both direct and indirect discrimination entail ‘less favourable treatment’ appertaining to an ‘irrelevant’, ‘impermissible’ or ‘unacceptable consideration’. This interpretation of discrimination entails a judge undertaking a substantive inquiry. Regrettably, these judges did not explicitly elaborate upon this aspect of their judgments. There may be many explanations, but ultimately an absence of explanation means that any further analysis is bound to be speculative.

Finally, it should be noted that, in interpreting the Equal Opportunity Act 1984 (Vic), the judges were confronted by a challenging and difficult task. The concepts of equality, discrimination and the wording of anti-discrimination legislation are both subtle and complex. Furthermore, the Victorian legislation was very poorly drafted. In particular, the wording of s 17(5) was such that it deemed indirect discrimination to be direct discrimination. No other State or federal anti-discrimination statute took such an approach when defining discrimination. The difficulties in construing the definitions of discrimination in the statute may also help to explain the differences of opinion among the judges. In short, the Victorian Act cried out for reform.

IV IMPLICATIONS OF THE EQUAL OPPORTUNITY ACT 1995 (VIC)

Since Waters was decided, the Victorian Government has enacted the new Equal Opportunity Act 1995 (Vic) which has replaced the Equal Opportunity Act 1984 (Vic).[91] The definitions of discrimination in the 1995 Act are contained in ss 7, 8 and 9. Section 7 provides that:

(1) Discrimination means direct or indirect discrimination on the basis of an attribute.
(2) Discrimination on the basis of an attribute includes discrimination on the basis —
(a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;
(b) of a characteristic that a person with that attribute generally has;
(c) of a characteristic that is generally imputed to a person with that attribute;
(d) that a person is presumed to have that attribute or to have had it at any time.

Section 8 provides that:

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.
(2) In determining whether a person directly discriminates it is irrelevant —
(a) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

Section 9 provides that:

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice —
(a) that someone with an attribute does not or cannot comply with; and
(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and
(c) that is not reasonable.
(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including —
(a) the consequences of failing to comply with the requirement, condition or practice;
(b) the cost of alternative requirements, conditions or practices;
(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.
(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

‘Attribute’ is defined in the 1995 Act in s 6 and includes the ground of impairment.

I now consider changes made by the new Act relevant to my analysis of Waters. First, Mason CJ and Gaudron J stated that discrimination did not require an intention or motive to discriminate. Section 10 of the 1995 Act plainly states that in determining whether or not a person discriminates, the person’s motive is irrelevant. In this regard, the new legislation is in accord with the view of Mason CJ and Gaudron J.

Secondly, Mason CJ and Gaudron J,[92] Deane J,[93] and Dawson and Toohey JJ[94] argued that both direct and indirect discrimination involved ‘less favourable treatment’. A crucial question is whether their Honours’ interpretation is reflected in the 1995 Act. There are arguments which suggest that their Honours’ views are not to be found in the new legislation. Section 7(1) states that discrimination means direct or indirect discrimination. Direct and indirect discrimination are then defined separately in ss 8 and 9 respectively. Arguably, the term ‘less favourable treatment’ is mentioned only in the definition of direct discrimination, and that term is consequently confined.[95]

Nevertheless, there are arguments which suggest that their Honours’ views are to be found in the new Act. The definitions of direct and indirect discrimination appear to involve less favourable treatment. The definition of direct discrimination in s 8 expressly states that it occurs where a person is treated ‘less favourably’. The definition of indirect discrimination in s 9 is concerned with ‘discriminatory effect’.[96] Arguably, ‘discriminatory effect’ means less favourable treatment. Furthermore, both direct and indirect discrimination are intended to be defined in terms similar to provisions in the previous Act.[97]

Thirdly, Dawson and Toohey JJ and McHugh J argued that s 17(1) and (5) of the Equal Opportunity Act 1984 (Vic) were mutually exclusive. The new legislation lends support to their Honours’ view. In particular, the deeming provision in s 17(5) does not find a counterpart in the new Act. Section 7(1) provides that discrimination means direct or indirect discrimination. The word ‘means’ refers to an exhaustive definition. Direct and indirect discrimination are then defined separately by ss 8 and 9 respectively. However, whether linguistically a separate definition is a mutually exclusive definition is an open question. A mutually exclusive definition requires an acknowledgment that one definition excludes the other. Clearly the definitions of discrimination are not constructed in this way.

Fourthly, Mason CJ and Gaudron J and Deane J argued that the term ‘less favourable treatment’ in s 17(1) of the Equal Opportunity Act 1984 (Vic) might encompass forms of indirect discrimination not included in s 17(5). The new legislation does not appear to reflect their Honours’ view: as I have mentioned, s 7(1) defines discrimination exhaustively as either direct or indirect. These are the only forms of discrimination recognised by the 1995 Act.

Fifthly, Dawson and Toohey JJ, Deane J and McHugh J held that s 17(5) of the Equal Opportunity Act 1984 (Vic) involved a weighing of all relevant factors such as the financial or economic considerations of the defendant. Such a view has been expressly incorporated into s 9(2) of the 1995 Act, which provides that ‘whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case’. ‘Relevant circumstances’ includes the financial circumstances of the person imposing the requirement, condition or practice, and the cost of alternative requirements, conditions or practices.[98]

V CONCLUSION

It now remains for me to comment on the future of the substantive conception of discrimination as a means of interpreting anti-discrimination statutes. The crucial question I have considered is whether a substantive conception of discrimination could be read into statutory definitions of discrimination.

I have pointed out that Mason CJ and Gaudron, Deane, Toohey and Dawson JJ contended in Waters that direct and indirect discrimination involve less favourable treatment based on an ‘irrelevant’, ‘impermissible’ or ‘unacceptable’ consideration. Their Honours’ contention is now less clear as a result of the new definitions of discrimination enacted in the 1995 Act. Given the wording of the new Act, the arguments advanced by the judges to link direct and indirect discrimination are open to question. Even so, the new legislation must be read in its context, and contextual interpretation is a fluid form of analysis. The last word on the existence of a conceptual link will of course rest with the judges.

Even if the judges find that there is no link between the definitions of direct and indirect discrimination, it is still possible to interpret these concepts substantively. Direct discrimination may be interpreted expansively, based on the words ‘less favourable treatment’ in the new legislation. As mentioned above, if a substantive interpretation is adopted, most special measures will not be struck down as discriminatory. Thus, such a construction of the legislation would effect a significant benefit for disadvantaged individuals and groups. Furthermore, the definition of indirect discrimination under the new legislation is not likely to be interpreted narrowly, given its purpose to remedy the effects of discrimination. Most obviously, the imposition of requirements, conditions and practices adversely affects members of disadvantaged groups. It is likely that the definition of indirect discrimination will be given a substantive interpretation.

It follows that the substantive conception of discrimination may provide a basis for the interpretation of anti-discrimination legislation. As has been shown, this approach provides an efficacious way to begin to address the persistence of racial, gender, sexual orientation and disability injustice, which is evident in many facets of Australian society.


[*] BA, LLB (Hons) (Mon), LLM (Queens); Barrister and Solicitor of the Supreme Court of Victoria; Lecturer in Law, The University of Melbourne. Special thanks must be given to Associate Professor Rosemary Hunter, Mr Ian Malkin, Senior Lecturer in Law, Associate Professor Jenny Morgan, Professor Michael Tilbury and Ms Helen O’Shea, who read earlier drafts of the paper and made helpful comments. I also wish to thank Dr Bridget Bambridge, Ms Christine Bateup, Mr Chester Brown, Mr Matthew Harding, Ms Felicity Lewis, Mr Julian Sempill, Mr Joo Cheong Tham and Ms Maggie Troop, who read material onto tape and/or provided research assistance. Finally, I am grateful for the anonymous comments of the referees. The errors are my own.

[1] Legislation referred to in this article includes: Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Human Rights and Equal Opportunity Commission Act 1986 (Cth); Disability Discrimination Act 1992 (Cth); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (Vic); Equal Opportunity Act 1995 (Vic); Equal Opportunity Act 1984 (SA); Equal Opportunity Act 1984 (WA); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1992 (NT); Sex Discrimination Act 1994 (Tas). The Equal Opportunity Act 1995 (Vic) repeals and replaces the Equal Opportunity Act 1984 (Vic).

[2] Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990).

[3] Rosemary Hunter, Indirect Discrimination in the Work Place (1992).

[4] Jenny Morgan, ‘Equality Rights in the Australian Context: A Feminist Assessment’ in Philip Alston (ed), Towards an Australian Bill of Rights (1994) 123.

[5] See Wojciech Sadurski, ‘A Conceptual Analysis’ (1986) 60 Australian Law Journal 131, 133 and Wojciech Sadurski, ‘Gerhardy v Brown v the Concept of Discrimination: Reflections on the Landmark Case That Wasn’t’ [1986] SydLawRw 2; (1986) 11 Sydney Law Review 5, 7.

[6] [1991] HCA 49; (1991) 173 CLR 349 (‘Waters’).

[7] There are two reasons which may go some way towards explaining why the possibilities of a substantive conception of discrimination have not been adopted as a means of interpreting this legislation in the case law and literature. First, some leading scholars have relied upon equality as the dominant construction of human rights legislation and, consequently, have influenced the discourse in this area of law: see, eg, Australian Law Reform Commission, Equality before the Law: Justice for Women, Report No 69, Part 1 (1994). Second, discrimination has traditionally been referred to in formal terms by the courts: see Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70; and Sadurski, ‘Gerhardy v Brown v the Concept of Discrimination’, above n 5. Reliance on these modes of analysis has obscured recognition of a substantive conception of discrimination.

[8] My emphasis on the term ‘less favourably’ in definitions of discrimination is in conformity with the approach of the High Court in Waters, discussed below.

[9] I have chosen to describe the concepts in this way as a practical means of explaining the approach of the High Court in Waters. The Supreme Court of Canada, in Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143; 56 DLR (4th) 1 (‘Andrews’), adopted a similar approach. For a critical discussion which touches on issues of classification, see Mary Eaton, ‘Andrews v Law Society of British Columbia(1990) 4 Canadian Journal of Women and the Law 276.

[10] Andrews 1989 CanLII 2 (SCC); [1989] 1 SCR 143, 164; 1989 CanLII 2 (SCC); 56 DLR (4th) 1, 10 (McIntyre J).

[11] Eaton, above n 9, 278.

[12] Ibid 278, 281; Catharine MacKinnon, ‘Difference and Dominance: On Sex Discrimination’ in Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) 32, 32.

[13] Eaton, above n 9, 278, 281.

[14] Ibid 279.

[15] Ibid. See also MacKinnon, above n 12, 33. Interestingly, in Andrews 1989 CanLII 2 (SCC); [1989] 1 SCR 143, 165–6; 1989 CanLII 2 (SCC); 56 DLR (4th) 1, 11–12, McIntyre J rejected the similarly situated test as a test of equality under s 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11.

[16] Thornton, above n 2, 46; Hunter, above n 3, 3.

[17] For example, initially employers were permitted to exclude women from the lead industry in Australia because of risks to their health if they became pregnant: see Mount Isa Mines v Marks (1992) 35 FCR 96. Cf Human Rights and Equal Opportunity Commission v Mount Isa Mines (1993) 46 FCR 301.

[18] MacKinnon, above n 12, 33; Hunter, above n 3, 6–7.

[19] Hunter, above n 3, 5. My description of the development of substantive equality draws on the scholarship of Rosemary Hunter.

[20] Ibid 6.

[21] Ibid.

[22] MacKinnon, above n 12, 44.

[23] Hunter, above n 3, 6.

[24] Thornton, above n 2, 2. Note that the concept of anti-discrimination is based on human rights legislation in Canada, England and the United States. But it also has an ancient history in the common law.

[25] Note, ‘Employment Discrimination against the Handicapped and Section 504 of the Rehabilitation Act: An Essay on Legal Evasiveness’ (1984) 97 Harvard Law Review 997, 1000.

[26] Thornton, above n 2, 2.

[27] See, eg, Proudfoot v Australian Capital Territory Board of Health [1992] EOC 92-417.

[28] Thornton, above n 2, 2.

[29] Ibid.

[30] Paul Brest, ‘Foreword: In Defense of the Antidiscrimination Principle’ (1976) 90 Harvard Law Review 1, 7–8.

[31] Sadurski, ‘Gerhardy v Brown v the Concept of Discrimination’, above n 5, 28.

[32] Brest, above n 30, 8.

[33] Ibid.

[34] Sadurski, ‘Gerhardy v Brown v the Concept of Discrimination’, above n 5, 39.

[35] [1954] USSC 42; 347 US 483, 494 (1954).

[36] Brest, above n 30, 7.

[37] Sadurski, ‘Gerhardy v Brown v the Concept of Discrimination’, above n 5, 40.

[38] See Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436, 472–3 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ). In this case, the judges disagreed about the relationship between discrimination and arbitrariness. Mason CJ, Brennan, Deane, Dawson and Toohey JJ saw arbitrariness as a qualification to the definition of discrimination: at 472. Gaudron and McHugh JJ saw arbitrariness as part of the definition of discrimination: at 478. See generally Peter Hanks, Australian Constitutional Law: Materials and Commentary (5th ed, 1994) 727–31. See also Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, 573 (Gaudron J).

[39] Waters [1991] HCA 49; (1991) 173 CLR 349. For an excellent commentary on this case, see Moira Rayner and Ann Margerson, ‘Waters v Public Transport Corporation[1991] MelbULawRw 31; (1991) 18 Melbourne University Law Review 482.

[40] Waters [1991] HCA 49; (1991) 173 CLR 349, 359.

[41] Section 17(1) is expressed in similar terms to s 8 of the Equal Opportunity Act 1995 (Vic) for the purposes of their Honours’ analysis. For the text of the relevant sections of the new Act, see below pp 140–1.

[42] Waters [1991] HCA 49; (1991) 173 CLR 349, 358.

[43] Ibid 357.

[44] Ibid 358.

[45] Ibid 358–9.

[46] The structure of s 17(1) and (5) is defined differently from ss 7–9 of the Equal Opportunity Act 1995 (Vic), discussed in the text below. For the text of the relevant sections, see below pp 140–1.

[47] Waters [1991] HCA 49; (1991) 173 CLR 349, 359.

[48] Ibid. It is because of the ‘ground of’ discrimination that a person receives less favourable treatment. It is notable that in Aboriginal Students’ Support and Parents Awareness Committee, Traeger Park Primary School, Alice Springs v Minister for Education (NT) [1992] EOC 92-415, 78,960 the tribunal relied on this argument to hold that the test for s 17 of the Equal Opportunity Act 1984 (Vic) is objective.

[49] See the approval given by Mason CJ and Gaudron J to R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 in Waters [1991] HCA 49; (1991) 173 CLR 349, 359–60, and the discussion of this case by Deane and Gaudron JJ in Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, 176–7. Cf McHugh J in Waters, discussed below.

[50] Waters [1991] HCA 49; (1991) 173 CLR 349, 362.

[51] Ibid 363.

[52] Ibid.

[53] Ibid.

[54] Ibid 365.

[55] Ibid.

[56] Ibid.

[57] Ibid 364.

[58] Ibid 365, 371.

[59] Ibid 372.

[60] Section 29(1) makes it unlawful for a person providing services to discriminate on the grounds of impairment (a) by refusing to perform the services; or (b) in the terms on which the person performs the services. Section 29(2) provides an exception to s 29(1) if the service is required to be performed in a special manner (a) that cannot reasonably be provided by the person performing the service in question; or (b) where it would be reasonably onerous for the person to perform it if that service were provided to a person not having the relevant impairment. To understand the operation of this legislation, two concepts which must be distinguished are the definitions of ‘discrimination’, which specify its meaning, and prohibitions of ‘discrimination’, which declare it to be unlawful. The Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and State and Territory legislation define ‘discrimination’ in provisions separate from those which declare it to be unlawful (by reference to certain areas), and contain relevant exemptions.

[61] His Honour made this point while discussing the relationship between s 29(1)(a) and (2)(b): Waters [1991] HCA 49; (1991) 173 CLR 349, 373–5.

[62] Ibid 375.

[63] Ibid 376. In fact, Brennan J noted the effect of s 29(2) at 379:

The occasions when s 29(2)(b) might apply are occasions where an impaired person ‘requires the service to be performed in a special manner’ and the putative discriminator has imposed a requirement or condition more onerous than a requirement or condition that might reasonably be imposed on a non-impaired person.

[64] Ibid 377.

[65] Ibid 378.

[66] Ibid (emphasis added).

[67] Ibid.

[68] Ibid.

[69] Ibid 379.

[70] Brennan J seemed to recognise the rationale of indirect discrimination when he stated that the imposition of a requirement or condition will not of itself be discriminatory, but rather will be discriminatory due to its consequences on others. However, he then continued in terms of striking a balance between the interests of persons in a protected category, and the legal freedom of the discriminator to impose requirements or conditions in its activities or transactions: ibid. This language of balance seems to ignore the purpose of the definition of indirect discrimination, as Brennan J had just recognised it, to remedy the unfair consequences (of otherwise lawful actions) on persons in a protected category. Inherent in the balancing-of-interests test is a consideration of the intention of the putative discriminator. Regrettably, this test seems to have influenced other members of the court, and also the legislature in the enactment of the Equal Opportunity Act 1995 (Vic): see below. For a good discussion of the purpose of anti-discrimination legislation, see the judgment of McIntyre J in Andrews 1989 CanLII 2 (SCC); [1989] 1 SCR 143; 56 DLR (4th) 1, mentioned in above n 9.

[71] Waters [1991] HCA 49; (1991) 173 CLR 349, 381–2.

[72] Ibid 392.

[73] In Sinnapan v Victoria [1994] EOC 92-567, 77,115, the Equal Opportunity Board of Victoria adopted this approach.

[74] Waters [1991] HCA 49; (1991) 173 CLR 349, 394–5 (Dawson and Toohey JJ), 383–4 (Deane J). See s 29(2) of the Equal Opportunity Act 1984 (Vic), discussed above.

[75] Waters [1991] HCA 49; (1991) 173 CLR 349, 395.

[76] [1989] FCA 342; (1989) 23 FCR 251, 263, approved in Waters [1991] HCA 49; (1991) 173 CLR 349, 395–6.

[77] Waters [1991] HCA 49; (1991) 173 CLR 349, 365.

[78] Ibid 402.

[79] Ibid.

[80] Ibid 400–1.

[81] Ibid 401.

[82] See also Director-General of Education v Breen (1982) 2 IR 93 (NSWCA); Haines v Leves (1987) 8 NSWLR 442.

[83] Waters [1991] HCA 49; (1991) 173 CLR 349, 402.

[84] Ibid.

[85] Ibid 409.

[86] Ibid.

[87] (Unreported, Equal Opportunity Board of Victoria, M Rizkalla (President), J Murphy and D Rechtman (Members), 25 June 1993).

[88] The Victorian Government did not give careful consideration to the proposal to implement a new transport system. It would not have taken much effort by the Government to accommodate the needs of people with disabilities. Modification of the scratch ticket system and provision of services by drivers would have provided a fully accessible system without the need for litigation. Given the intransigence of the Government at every stage of the Waters case, without the Equal Opportunity Act 1984 (Vic), people with disabilities would have been powerless to challenge these decisions.

[89] For example, a number of decisions have referred to Mason CJ and Gaudron J in Waters [1991] HCA 49; (1991) 173 CLR 349, 359 and/or other statements in this case endorsing a purposive reading of this legislation. The High Court in its recent decision, Qantas Airways Ltd v Christie (1998) 152 ALR 365, 385 (McHugh J) referred to Waters when recognising that anti-discrimination legislation upholds a ‘high public purpose’ and must be construed beneficially. So did the Federal Court in Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182. See also Victoria v Sinnapan [1994] EOC 92-568, 77,122 (Beach J), referring to Waters as a ‘generous and beneficial interpretation’; Schwerin v City of Sale [1992] EOC 92-446, 79,161: a ‘liberal and beneficial interpretation’; DL (Representing the Members of People Living with AIDS (WA) Inc) v City of Perth [1993] EOC 92-510, 79,605: ‘anti-discrimination legislation should not be interpreted narrowly but should be given a wide effect’. In Victoria v Bacon (Unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Ormiston and Phillips JJA, 30 April 1998), Winneke P referred to Waters in support of a beneficial interpretation of the words ‘condition, requirement or practice’ in s 9(1) of the Equal Opportunity Act 1995 (Vic). Woods v Wollongong City Council [1993] EOC 92-486, 79,505 cited Dawson and Toohey JJ in Waters on the difference between direct and indirect discrimination. In Sinnapan v State of Victoria [1994] EOC 92-567, 77,115, the Equal Opportunity Board of Victoria accepted Dawson and Toohey JJ’s contention that the formulae in s 17(1) and (5) deal separately with direct and indirect discrimination in a manner which is mutually exclusive. Other cases have followed Waters on the question of reasonableness, especially the findings of Brennan, Deane, Dawson, Toohey and McHugh JJ that reasonableness must be determined having regard to the exigencies of each individual case: see, eg, Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 150 ALR 1.

[90] The failure of courts to recognise distinctions of form and substance in part explains why the concept of substantive discrimination in the judgment of Mason CJ and Gaudron J has not been taken up in subsequent cases. In particular, and perhaps as a result of the absence of explanation in Waters, the potential for ‘less favourable treatment’ to give rise to a substantive conception of discrimination has remained unexplored in later cases. Importantly, substantive equality and substantive discrimination have been recognised in the recent enactment of the Sex Discrimination Amendment Act 1995 (Cth): see s 7B–D. See also the second reading speech for that Act by the then Attorney-General, Michael Lavarch, who noted that ‘our emphasis should be on measures to achieve real or substantive equality’: Commonwealth, Parliamentary Debates, House of Representatives, 28 June 1995, 2462; and the Explanatory Memorandum, Sex Discrimination Amendment Bill 1995 (Cth) 8.

[91] For a discussion of the new Act, see generally Anna Chapman, ‘The Impact of the Equal Opportunity Act 1995 (Vic) on Paid Work Relationships’ (1996) 9 Australian Journal of Labour Law 1.

[92] Waters [1991] HCA 49; (1991) 173 CLR 349, 358–9.

[93] Ibid 382.

[94] Ibid 392.

[95] See above pp 140–1.

[96] A point explicitly recognised in the Explanatory Memorandum, Equal Opportunity Bill 1995 (Vic) 2.

[97] See the Explanatory Memorandum, Equal Opportunity Bill 1995 (Vic) 2.

[98] Equal Opportunity Act 1995 (Vic) s 9(2)(b)–(c). The text of these provisions is set out at above p 141.


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