Atkinson v Central Northern Adelaide Health Service - [2008] SAEOT 5

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
ATKINSON v CENTRAL NORTHERN ADELAIDE HEALTH SERVICE
[2008] SAEOT 5
Judgment of His Honour Judge Rice, Member Mr D Shetliffe and Member Ms H Jasinski
11 April 2008
DISCRIMINATION LAW
Alleged discrimination by the respondent on the grounds of race and age - respondent applied criteria whereby persons from a non-English speaking background or not under 25 years of age were not able to access medical services - whether exemption provisions apply on the assumption that discrimination took place - meaning of "scheme" and "undertaking".
Held (by all Members): Discrimination on the ground of age had taken place; further, by majority (Members Shetliffe and Jasinski), that discrimination on the ground of race made out - orders accordingly - written apology to complainant but no compensation.
Equal Opportunity Act 1984 ss 5, 6(3), 7, 51, 61, 65, 85A, 85K, 85P, 93(2), referred to.
Wright v City of Brighton 162 LSJS 85; Khan v State of South Australia [2000] SADC 1 (7/1/00); Waters and Others v Public Transport Corporation (1991) 173 CLR 349, considered.

ATKINSON v CENTRAL NORTHERN ADELAIDE HEALTH SERVICE
[2008] SAEOT 5
JUDGE RICE:
Introduction

In this matter the complainant, Mr Bryan Atkinson, has lodged a complaint that the Central Northern Adelaide Health Service has discriminated against him on the basis of race and age, contrary to the provisions of the Equal Opportunity Act 1984 (“the Act”).
The essence of the complaint is that Mr Atkinson sought access to the medical services provided by the respondent Health Service, but that access was refused because he did not meet the eligibility criteria, more particularly on the basis that he was not Aboriginal or Torres Strait Islander or from a non-English speaking background and was not under 25 years of age.
There is no doubt that the respondent Health Service applied formalised criteria when people sought access to those medical services, but it says its actions were not (and are not) unlawful because they were done for proper purposes permitted by the Act. There is also no doubt that the criteria are quite restrictive and that they were altered both before and after these events.
I note the Act is binding on the Crown (s 7). The respondent Health Service is an agency of the Government of South Australia.
Preliminary points
Two preliminary points have arisen. The complaint was lodged with the Commissioner for Equal Opportunity on 30 December, 2005. Attempts to conciliate the complaint were unsuccessful.
As to the first, the Notice of Referral of the complaint by the Commissioner incorrectly states that the referral is made pursuant to s 98(5) of the Act. The correct legal basis for such a referral is pursuant to s 95(8), which is what was referred to in the Commissioner’s covering letter. With the concurrence of both parties, the Tribunal has applied the slip rule and views it as a proper referral pursuant to s 95(8).
As to the second point, a complaint pursuant to the Act must be lodged with the Commissioner within a certain time, otherwise the Commissioner would have no jurisdiction to deal with the complaint. Further, if a complaint is outside that time period, there could be no valid referral to this Tribunal.
Section 93(2) of the Act provides as follows:
(2) A complaint must be lodged―
(a)when the alleged contravention is constituted of a series of acts―within six months of the last of those acts;
(b)in any other case―within six months of the date on which the contravention is alleged to have been committed.
Some of the material provided to the Tribunal suggests there were two occasions of a refusal of medical services, one during 2004 and another during 2005. Upon the hearing before the Tribunal, the second occasion was conceded to have been in the second half of 2005 and therefore within time. The alleged contravention is a single occasion rather than constituted of a series of acts. However, for practical purposes, it makes no real difference because each of the occasions was substantially the same factually and the respondent Health Service, for reasons that will be explained, had and still has much the same policy, although that has been subject to further adaptation.
The complaint
Before considering the relevant legal framework of the Act, I say something more about Mr Atkinson and the complaint. Some of this material derives from the filed documents and some from the evidence before the Tribunal.
Mr Atkinson is presently 77 years of age. He suffers from a number of medical conditions largely as the result of working in the coal mines in the United Kingdom. His native language is English and he immigrated to Australia in 1960. He last worked in Australia in 1990. Initially, he was on a disability pension and is presently on a full age pension. He has a health care card. He now lives in a Housing Trust home in the Mansfield Park area, about five minutes walk from The Parks Community Centre. He moved to that area from the Tea Tree Gully area in late 2003. Whilst Mr Atkinson had consulted a general practitioner in the Tea Tree Gully area, he wanted access to medical services close to where he is now living.
There appears to be no dispute that Mr Atkinson has access to the other, non-medical, services that are available to members of The Parks Community Centre. He has used the psychologist, physiotherapy and dental services.
I mention for the sake of completeness that the first occasion when Mr Atkinson sought access to the medical services was sometime in 2004. Mr Atkinson went to the desk and said he wanted to see a doctor. He was told he could not see a doctor because there were specific criteria and he did not qualify. Mr Atkinson made a formal complaint. He said he had access to other services and, being an active contributor to the Parks Community, he should be provided with all the services he needed. He was told there were other doctors in the near vicinity and that he should consider using one of those. As it transpired, he continued to use his general practitioner at Tea Tree Gully, about 25 minutes away by car.
As to the second occasion, it is agreed to have been in the latter half of 2005. Again he was told he did not meet the criteria. He believes part of the explanation given to him was that there were limited resources with which to provide medical services. He was told the reason for the criteria was to assist disadvantaged groups. On this occasion, Mr Atkinson completed a form outlining his complaint and asking the Health Centre to reconsider. Relevantly it states (see exhibit DMJ-21 to the affidavit of Dianne Mary Jones sworn on 7 September, 2007):
I consider that to deny me access to a doctor at your Community Health Centre is discriminatory and unreasonable it therefore denies me Natural Justice. I would like you to reconsider your decision asap.”
The respondent Health Service responded by letter to Mr Atkinson dated 29 November, 2005 (see exhibit DMJ-22 to the same affidavit). That letter is as follows:
Dear Mr Atkinson
Thank you for your comments regarding your access to medical services at the Parks Community Health Service. On two occasions we have discussed access to Parks medical services. As was mentioned at the time, decisions about utilization of existing resources are made inline with an obligation to manage increasing demands on services by prioritizing people who have greatest need in relation to health issues and who are least able to access services. Eligibility criteria have had to be severely restricted, given the limited number of medical positions, so that service can be provided in a timely manner.
To be eligible for the medical services at Parks people must:
•      Be Aboriginal, Torres Strait Islander or from a non-English speaking background, or
•      Be under 25 years of age with a Health Care Card
While you live in the area your age and cultural background preclude you from accessing Parks medical services.
In response to your complaint to the Office of the Health and Community Services Complaints Commission in relation to access, the Health Service provided the information above. We have received notification from the Commissioner that no further action is required from Primary Health Care Services – West in relation to this matter.
In your complaint you ask for the Service to reconsider the decision. Unfortunately due to existing priorities and services demands this will not be possible.
Yours sincerely
(Signed)  (Signed)
Di Jones  Sharon Bax
General Manager  Team Manager
Primary Health Care Services – Western          Parks Community Health Service
Central Northern Adelaide Health Service           Primary Health Care Service – Western
The affidavit and oral evidence of Ms D Jones, Health Services Manager, The Parks Community Centre is referred to below. We mention at this stage a portion of Ms Jones’ affidavit of 7 September, 2007 (paras 4.1-4.3) where she said that the criteria applicable in 2005 in order to be eligible for medical services were:
4.1.Aboriginal, Torres Strait Islander or from a non-English speaking background, or
4.2.under 25 years of age, live in the catchment area postcodes 5008-5013 and have a Health Care Card or
4.3.if none of these apply, a client must have seen a Parks doctor within the last three years.
(The reference in my previous affidavit to a period of five years was an error.) In addition to these criteria, clients would also be seen in an emergency situation.
As to the changing criteria, exhibit C1 tendered during the hearing shows different criteria in April, 2003 (letter to Croydon Medical Clinic) and March, 2004 (appointments for new clients).
Mr Atkinson seeks a declaration from the Tribunal that the refusal of medical services on the second occasion was unlawful, a written apology and damages. I note Mr Atkinson’s attitude is not to generally denigrate the work and facilities available and provided by The Parks Community Centre. In other respects, he participates and enjoys his involvement in that community. He says, however, that discrimination within the Act has taken place and that this scheme or undertaking is outside the Act and remains unlawful.
Further, Mr Atkinson does not doubt the goodwill and good intentions of those running the Centre. Mr Atkinson does not dispute that the respondent Health Service is entitled to create programmes to deal specifically with the disadvantages experienced by the Aboriginal community, provided its structure and purpose is such that it is not unlawful within the meaning of the Act. However, he contends that the criteria of a non-English speaking background and the broad age requirement has brought about an illegal scheme or undertaking. In effect, he submits that the reduction in funding by the State Government has brought about an unlawful scheme or undertaking. The scheme or undertaking was made to fit the funding, not the Act.
Relevant provisions of the Equal Opportunity Act
As previously mentioned, it is alleged against the respondent Health Service that it acted in contravention of the Act by discriminating against Mr Atkinson on the grounds of race and age. It is necessary to reproduce the relevant portions of the Act that bear upon these issues.
Discrimination on the ground of race
Race is defined in a very broad manner (s 5):
race of a person means the nationality, country of origin, colour or ancestry of the person or of any other person with whom he or she resides or associates;
The Act sets out the criteria for establishing discrimination on the ground of race:
51.     For the purposes of this Act, a person discriminates on the ground of race ―
(a)     if he or she treats another person unfavourably by reason of the other’s race;
(b)     if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and ―
(i)the nature of the requirement is such that a substantially higher proportion of persons of a different race complies, or is able to comply, with the requirement than of those of the other’s race;
and
(ii)the requirement is not reasonable in the circumstances of the case;
or
(c)     if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s race, or on the basis of a presumed characteristic that is generally imputed to persons of that race.
The meaning of this section requires some examination. The facts of a given case may fall into more than one of the criteria.
Section 51(a) encompasses what I refer to as direct discrimination and does not have application on the facts of this case. Mr Atkinson’s counsel did not seek to use this ground (TP51-2, 87). There was no unfavourable treatment by reason of race simpliciter.
Section 51(b)(i) applies because Mr Atkinson was treated unfavourably as he did not comply and was not able to comply with a negative requirement, namely, that he was not from a non-English speaking background; further, the nature of that requirement is such that a substantially higher proportion of persons of a different race comply, or are able to comply, with the requirement than Mr Atkinson’s race. Mr Atkinson is of British nationality, and being English speaking is a characteristic of that nationality and therefore, by definition, race. That still leaves open the question of the reasonableness of the requirement.
It should be noted that, even if there is the potential for there to have been discrimination within s 51(b)(i), there is no discrimination on the ground of race if the requirement is reasonable in the circumstances of the case (s 51(b)(ii)).
As for s 51(c), although the facts of this case probably come within it, sub‑section (b) better fits the circumstances. However, on the assumption that being from a non‑English speaking background is a “characteristic” that appertains generally to persons of Mr Atkinson’s race then, subject to s 65, there has been discrimination on the ground of race.
That having been said, I remain of the view that this is a matter that is best dealt with under s 51(b). If, as here, the circumstances may come within two criteria, the respondent should be entitled to avail itself of sub‑para (ii) to avoid the odium of this type of discrimination.
The Act particularly provides that it is unlawful to discriminate in the provision of goods and services:
61.     It is unlawful for a person who offers or provides ―
(a)     goods;
or
(b)     services to which this Act applies,
(whether for payment or not) to discriminate against another on the ground of race ―
(c)     by refusing or failing to supply the goods or perform the services;
or
(d)     in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
There is no dispute here that the respondent Health Service was involved in the provision of services to which the Act applies (see s 5 of the Act).
Further, the Act provides that acts are not rendered unlawful if done for certain purposes:
Act does not apply to projects for benefit of persons of a particular race
65. This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race.
The provisions to which we have referred appear in Part IV.
Discrimination on the ground of age
The Act also provides the criteria for establishing discrimination on the ground of age:
85A. For the purposes of this Act, a person discriminates on the ground of age ―
(a)if he or she treats another person unfavourably because of the other’s age; or
(b)...
(c)if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s age or age group, or on the basis of a presumed characteristic that is generally imputed to persons of that age or age group.
As with discrimination relating to race, the Act makes it unlawful to discriminate against another in the provision of goods and services, on the ground of age:
Discrimination in provision of goods and services
85K. ...
(c)by refusing or failing to supply the goods or to perform the services; or
(d)in the terms or conditions on which or the manner of which the goods are supplied or the services are performed.
Finally, acts are not rendered unlawful if for certain purposes:
Projects for the benefit of persons of a particular age group
85P. This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular age or age group in order to meet a need that arises out of, or that is related to, the age or ages of those persons.
These provisions relating to age all appear in Part 5A.
It should be noted that there is a difference between the exemption provisions, ss 65 and 85P, in that the latter provides that benefit must be “...to meet a need that arises out of, or that is related to, the age or ages of those persons.” That gives rise to a question as to whether it is necessary for the party seeking an exemption to prove such a need.
As noted previously, there was no real debate that the respondent Health Service had discriminated against Mr Atkinson on the basis of age and possibly race: s 6(3). Assuming there was discrimination, the central question is whether the respondent comes within ss 65 and 85P. The Act is silent on the question of onus. However, in a practical sense, on the facts of this case, an evidential onus rests on the respondent Health Service to show its acts are not rendered unlawful by coming within the purview of those sections.
Both parties place some reliance upon the long title of the Act as a general statement of the purposes of the legislation. The long title provides as follows:
An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, sexuality, marital status, pregnancy, race, physical or intellectual impairment or age; to facilitate the participation of citizens in the economic and social life of the community; and to deal with other related matters.
Arguments advanced on behalf of Mr Atkinson
Dealing first with the aspect of race, it was submitted that Mr Atkinson was denied access to medical services applying two criteria based on race, namely, that he is not an Aboriginal or Torres Strait Islander and he is not from a non‑English speaking background. He does not complain that Aboriginals and Torres Strait Islanders are included, just that he is excluded.
It is put forward on behalf of Mr Atkinson as a case of indirect discrimination. It was submitted that, in effect, the respondent Health Service has set up an arbitrary scheme that excludes non-Aboriginals or non‑Torres Strait Islanders, or people from an English speaking background. As to the latter, being from a non-English speaking background may indicate an aspect of race because it identifies diverse countries of origin, but there is certainly no identification of a particular race.
Further, it was submitted that the acts of the respondent Health Service were not done pursuant to a “scheme or undertaking” or “for the benefit of a particular race”: s 65.
As to the aspect of discrimination on the basis of age, again it is said that the cut-off age of 25 years is arbitrary. It is said it does not form part of a “...scheme or undertaking for the benefit of persons of a particular age or age group...” and, further, that it has not been done “...in order to meet a need that arises out of, or that is related to, the age or ages of those persons”: s 85P. In essence it is said that the age group 0-25 years is really a series of different age groups combined, mostly with quite diverse needs, for example, an infant contrasted with a 24 year old. This group is not a cohesive group with identified or identifiable needs.
Arguments advanced on behalf of the respondent Health Service

As has already been mentioned, it is agreed that Mr Atkinson sought and was denied medical services from the respondent Health Service because he did not meet the eligibility criteria. Further, the medical services fall within the definition of “service” (s 5) and the refusal constituted unfavourable treatment within the meaning of ss 6(3), 51 and 85A of the Act. However, that leaves open for consideration as to whether there has been discrimination on the ground of race.
As the argument before the Tribunal developed, s 51(a) was not relied upon. As for s 51(b)(i), the respondent Health Service concedes that applies, but says the requirement is reasonable in the circumstances of the case because it was designed to further the health priorities of the respondent and the Government of South Australia: s 51(b)(ii). Resolution of that question is very much, on the facts of this case, inter-related with whether the acts are not unlawful by virtue of the operation of s 65. However, s 65 has no part to play if s 51(b)(ii) is able to be met (assuming s 51(a) and (c) have no application).
As for s 51(c), the question is whether to be treated unfavourably because you do not come from a non-English speaking background is to be treated unfavourably on the basis of a “characteristic” that appertains generally to persons of your race. As noted, the facts of this case do not sit easily within s 51(c) and I prefer to deal with it under s 51(b).
In short, the respondent Health Service argues that the application of eligibility criteria for access to medical services is an act done for the purpose of carrying out a scheme for the benefit of Aboriginal people (see Ms Jones’ affidavit of 9 March, 2007, para 15).
Discrimination on the basis of age is much more straightforward. There can be no doubt that, on its face, the actions of the respondent Health Service discriminated on the basis of age.
Here the argument is much the same, namely, it was an act done for the purpose of carrying out a scheme for the benefit of young people under the age of 25 years in order to meet identified needs arising out of, or that are related to, being under 25 years of age (see Ms Jones’ affidavit, para 16).
Scope and operation of ss 65 and 85P
Because the substance of this case partly revolves around the scope and operation of ss 65 and 85P, it is appropriate to examine the wording of them and authorities that may bear upon their interpretation.
Dealing first with s 65, acts are not unlawful if “...done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race.” It is necessary to examine what is meant by the words “scheme or undertaking”.
Both parties have referred to Wright v City of Brighton[1] which was applied in Khan v State of South Australia[2]. Wright’s case was an application for a declaration that certain provisions of a land management agreement that three row cottages to be built on a site were to be sold to people 55 years and over, was discriminatory and contrary to the Equal Opportunity Act 1984. As with the case at bar, reliance was placed upon s 85A of the Act and, as a counter to the application, it was submitted that the land management agreement came within the operation of s 85P. The question in that case became whether the development (not being of the larger retirement village type situation) met the description of a “scheme” or “undertaking”. As to that, Olsson J said (at 94):
I entertain no doubt that the Parliament used the words ‘scheme’ and ‘undertaking’ according to their normal and natural connotation.
The notion of a ‘scheme’ normally contemplates a fully evolved plan of action or systematic arrangement (often of an ongoing nature) to attain or satisfy an identified aim or outcome, whereas the concept of an ‘undertaking’ is limited to a specific, discrete task or enterprise of some kind, usually, but not always, of a limited scope or ‘one off’ nature.
[1] 162 LSJS 85
[2] [2000] SADC 1 (7/1/00)
His Honour then referred for support to a number of High Court authorities arising from an interpretation of “...profit-making undertaking or scheme” in s 26(a) or s 36(a) of the Income Tax Assessment Act 1936-1969 (Cth).
Whilst I adopt the description of “scheme” or “undertaking” in the quotation above, with all due respect, I find the detail of the discussion of those words in the context of taxation affairs to be of very limited utility. However, I also adopt the following passages from His Honour’s findings in the context of the case before him (at 97):
Having regard to the foregoing conceptual approaches and the particular statutory setting of section 85p of the Equal Opportunity Act I consider that the word ‘scheme’, as there employed, must be taken to embrace the concept of an identifiable programme or plan of action, which is coherent and has some unity of conception (Williams & Others v. United Dairies LTD (1986) 10 ACLR 406 at 409), directed to the type of end result contemplated by the section. By virtue of its deliberate contrast with the word ‘undertaking’ I am of opinion that what is in contemplation is a significant plan, conceived at the time of commencement of the relevant project, involving a future series of system of activities, normally of an ongoing nature, in accordance with reasonably developed guidelines or concepts. Thus the creation of a retirement village of the nature of those encompassed by the Retirement Villages Act would clearly fall within that type of definition, but so also would a range of other initiatives not necessarily of that type. What is in issue is a question of fact and degree in each case and any attempt to draw precise, definitive boundaries, would seem an impossible endeavour.
By way of contrast it appears to me that the word ‘undertaking’ is employed to comprehend a discrete project, more limited in scope to a specific enterprise, which may or may not have a finite life and is of a potentially less sophisticated structure in administrative terms. It may be apt to describe either a commercial or business enterprise or something which may not necessarily have a profit orientated goal.
I am of opinion that it would be stretching the meaning of the word ‘scheme’ to an unacceptable degree to include within its aegis a project of the type here under contemplation. This was not, in the true sense, a plan of action or systematic arrangement designed to achieve a clearly defined ongoing objective. It was merely a ‘one off’ development aimed at a specific commercial market.
On the other hand it seems to me beyond doubt that it was manifestly an undertaking of the nature of an enterprise carried out for the type of purpose to which section 85p directs its attention. These were cottages specifically designed and built to provide relatively low cost housing to meet the identified needs of a particular age group of retired and elderly people.
His Honour then came to the conclusion that the land management agreement came within the exemption provided in s 85P.
As mentioned, Wright’s case was applied in Khan v State of South Australia. Khan’s case was similar to the present case because it also involved an alleged breach of the Act on the grounds of race and age. Mr Khan applied for one of five Aboriginal Education Worker Traineeships at Coober Pedy. The traineeship was available to people of Aboriginal and Torres Strait Islander descent between the ages of 17 and 24 years. As the evidence in that case showed, although Mr Khan was about 38 years, age would not in fact have precluded his appointment.
The facts of the case were very unusual. Mr Khan was born in Pakistan and attended high school in that country. Mr Khan came to Australia in 1978 and lived in Coober Pedy at the time of the relevant events. His partner, Mrs Jan Khan, was of Aboriginal descent and they had four children. Importantly, he worked with Aboriginal people for many years, he underwent initiation and learnt the law of his wife’s people, becoming an Aboriginal lawman.
Mr Khan was not successful on the basis that he was not of Aboriginal or Torres Strait Islander descent. He alleged discrimination against the Act on the basis of race. The Tribunal (Judge Trenorden, Members Altman and Heylen) found that there was no genuine occupational requirement that a person be of Aboriginal or Torres Strait Islander descent and therefore the exemption in s 56(2) of the Act had no application. Further, the Tribunal was satisfied, applying the discussion and criteria from Olsson J in Wright’s case, that the traineeships were a scheme for the benefit of persons of Aboriginal and Torres Strait Islander descent. The refusal to offer one of the traineeships to Mr Khan, being an act done for the purpose of carrying out the scheme, was not unlawful having regard to s 65 of the Act.
General discussion
I consider that it is appropriate to apply the criteria developed by Olsson J. in Wright’s case.
Something needs to be said concerning the respondent, Central Northern Adelaide Health Service, sometimes referred to as the Parks Community Health Service or simply “Parks”.
Parks was incorporated under the South Australian Health Commission Act 1976 to provide health services from 1 July, 2004. It was one of three metropolitan Health Services which were established by the State Government. As appears from the exhibits tendered and referred to during the hearing, services had previously been provided by independent organisational arrangements. The focus became an integrated health service based upon the needs of local communities, particularly for the most disadvantaged and those people with the least access to services. Pertinent to this case is South Australia’s Strategic Plan, “Creating Opportunity”, March 2004, which includes this priority action (see exhibit DMJ-3 to the affidavit of Dianne Mary Jones of 9 March, 2007):
■ improve health services for the most vulnerable people in the community, in particular Aboriginal people, children and young people, people with a mental illness and the frail aged
Over time, different criteria have been determined to define the groups for whom the service will be provided. These changes have been driven partly by changing community needs and partly by limits on resources. The question of resources is one to which I will return. There is also the separate question as to whether, with various changes in criteria, it remains a “scheme or undertaking”.
The criteria established have been a mixture of geographic area, whether a person has a health card, race (Aboriginal and Torres Strait Islander, people for whom English is a second language) and age (under 25). The inevitable consequence of establishing criteria on the basis of race or age is that some individuals will be excluded from receiving a service on the basis of race or age. It was expressed this way in exhibit DMJ-5:
The reality of limited resources and targeted services does mean that some people will not be eligible for some services.
Referring again to Olsson J’s discussion, the key ingredients of a scheme involve “...an identifiable programme or plan of action, which is coherent and has some unity of conception”. Later he applied those criteria to the facts of the case saying it was not “a plan of action or systematic arrangement designed to achieve a clearly defined on-going objective.”
There seems little doubt in this case that the Parks, through research and consultation, developed a Strategic Plan 2003-2006 which identified the priority populations for the receipt of services at Parks as:
•Aboriginal people.
•People of culturally and linguistically diverse backgrounds, especially refugees.
•Young people.
•Children and families.
The Strategic Plan was well-supported by material in the respondent Health Service document “A Social Health Atlas” (DMJ-11). Various other studies and statistics provided further evidence of the need to give priority to those groups in the provision of health services. The effect of this material is dealt with in Ms Jones’ affidavit of 9 March, 2007, paras 26-46.
Alleged race discrimination
I do not repeat the discussion under the previous heading.
As indicated, I regard s 51(b) as the appropriate part of the section to consider whether there has been discrimination. Such a consideration comes before any potential application of s 65.
In my view, it was reasonable in the circumstances of this case to apply the (race) criteria to which reference has been made. I have discussed under the previous heading the reasons for those criteria and the reasons for their change in the light of funding constraints, shifting demographics and changing needs. For these reasons I do not necessarily need to consider the application of s 65. However, if it is thought that the criteria of s 51 have not been met, I should say something about the application of s 65.
I accept the respondent Health Service’s submission “...that the provision of medical services in collaboration with other services in accordance with the Strategic Plan is a fully evolved plan of action or systematic arrangement of an ongoing nature for the duration of the Plan with the identified aim or outcome of improving the health of Aborigines and Torres Strait Islanders” (para 34 Outline of Argument). I also accept the summary of the overall position put by Dr Panter, Chief Executive, Central Northern Adelaide Health Service, in his letter of 23 February, 2006 to the Commissioner for Equal Opportunity (see exhibit DMJ-7 to the affidavit of Ms Jones of 9 March, 2007):
In summary it is argued that the application of access criteria for services at the Parks is not discriminatory but as allowed in Sections 65 and 85P of the Equal Opportunity Act 1984, part of a planned implementation of government social justice, primary health care and population health policy to prioritize improving health outcomes for those with the greatest need and the least access to services. These criteria have been developed and implemented based on the need to apply scarce publicly funded primary health care resources in a sustainable way to the greatest effect in terms of health outcomes for the neediest people in the community.
I make three additional points.
There is no reason to limit a scheme to a single or discrete purpose. A scheme may undertake or focus on a number of purposes all at the one time especially, as here, where the intent was to provide an integrated health service for those identified as most in need, rather than being provided by independent organisational arrangements. Here the scheme is much broader than the provision of medical services, although that is a very important part of it.
Secondly, a scheme remains a scheme even though resource constraints or shifting demographics or social disadvantage may lead to a modification of eligibility criteria from time to time. As Ms Jones emphasised in her evidence before the Tribunal, the tightening of criteria is resource driven to enable Parks to put its available resources “into the needs of the populations with the greatest need and the least access to services” (TP46-47).
The law in this area must be applied in a practical manner. Modification of a scheme may be necessary because resources tighten or needs change or new needs arise. Such matters do not call for a new scheme provided there is no fundamental shift in direction or purpose.
Thirdly, there is also no call for s 65 of the Act to be limited to a scheme or undertaking for the benefit of a single, identifiable race. The scheme or undertaking may do so, but it is not essential. A scheme or undertaking could readily benefit a number of races all at the one time. There should not be a requirement to have a separate scheme or undertaking for each particular race, particularly when regard is had to the very broad definition of “race”.
In conclusion under this heading, I have taken the view that, assuming an act of discrimination on the ground of race, it was not an unlawful act because it was done for the purpose of carrying out a scheme for the benefit of persons of a particular race as explained above.
Alleged age discrimination
The background to this portion of the complaint is dealt with above. There seems little doubt that there was discrimination on the basis of age and I act upon that basis. The question becomes whether the actions of the respondent Health Service are not unlawful within the meaning of s 85P of the Act. I interpret the words “scheme” and “undertaking” in the same manner as previously discussed in the context of s 65. However, as previously alluded to, a question arises as to whether the respondent must demonstrate “...a need that arises out of, or that is related to, the age or ages of those persons” (s 85P).
I note again that the provisions of the land management agreement in Wright’s case provided that the three row cottages were to be sold to people 55 years and over. The arrangements were held to be an “undertaking” within s 85P and not unlawful.
In Wright’s case there was no requirement for the respondent to demonstrate that the needs of persons in that group were reasonable or justified by empirical or demographical data. That is the position that I also have adopted but, in any event, need has been demonstrated by such material.
I accept the respondent Health Service’s submissions that it is not necessary to establish that the benefit accorded to a person pursuant to the scheme or undertaking is intended to meet a need that arises out of or is related to the race of the persons who obtain the benefit. Having said that, the material before the Tribunal, some of which is referred to above, does in fact establish such a need. There was a realistic and genuine need shown and it is no part of my function to go further and make a value judgment about the extent of the need.
I do not see a need to canvass again the material referred to under the heading of “General Discussion”. In my view, the actions of the respondent Health Service were unlawful because they were not done for the purpose of carrying out a “scheme” in accord with s 85P. Although there is an abundance of material to show that the current Government of South Australia’s Youth Action Plan Goals and the State Strategic Plan have incorporated a scheme that arises out of, or that is related to, the age of persons in the “under 25 years” age group, that group is simply too broad for any s 85P scheme.
I take the view that this scheme is quite arbitrary in the sense put on behalf of Mr Atkinson. I accept that, unless a scheme is available to all persons no matter what age, a demarcation must be made in terms of age that will involve some arbitrariness. Although the studies support the cut-off age of 25 years, such a broad range traverses persons with wholly different needs. In my view, this cannot properly be regarded as a scheme within s 85P.
Conclusion
In my view, the actions of the respondent Health Service have been shown to be unlawful in that it discriminated against Mr Atkinson on the ground of age.
The question then arises as to what is the appropriate order. I do not think it is a case for compensation. It is, however, a case for a written apology to him. I have great sympathy for the respondent Health Service and with the requirement placed upon it to tailor its services within funding constraints. There is no doubt in my mind that its actions were done with the best of motives.
I record a finding that the respondent Health Service has acted in contravention of the Act by discriminating on the ground of age. I order that a written apology be provided to Mr Atkinson.
MEMBERS SHETLIFFE AND JASINSKI:
We agree with the findings of fact of His Honour’s judgment. We also agree with the general discussion around “scheme” and “undertaking” and with the findings in relation to age discrimination.

However, we make different findings in relation to discrimination on the basis of race as follows.
Race is defined in a very broad manner in s 5 of the Act:
race of a person means the nationality, country of origin, colour or ancestry of the person or of any other person with whom he or she resides or associates;
On the question of whether there was discrimination on the basis of race, reference must be made to s 51 of the Act. This section reads as follows:
51.     For the purpose of this Act, a person discriminates on the ground of race —
(a)     if he or she treats another person unfavourably by reason of the other’s race;
(b)     if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and —
(i)the nature of the requirement is such that a substantially higher proportion of persons of a different race complies, or is able to comply, with the requirement than of those of the other’s race;
and
(ii)the requirement is not reasonable in the circumstances of the case;
or
(c)     if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s race, or on the basis of a presumed characteristic that is generally imputed to persons of that race.
The meaning of this section requires some examination. The facts of a given case may fall into more than one of the criteria.
Section 51(a) encompasses what we refer to as direct discrimination. It has application on the facts of this case. Mr Atkinson was given unfavourable treatment by reason of race simpliciter because he was not Aboriginal or Torres Strait Islander. It should be noted that there is no discrimination on the ground of race if it be shown that an act was done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race (s 65).
Section 51(b)(i) does not apply to the facts in this case. This section relates to indirect discrimination where on the face of it there is no direct discrimination but the particular requirement or condition has a discriminatory effect.
In Waters and Others v Public Transport Corporation[3], Dawson and Toohey JJ, after dealing with direct discrimination, said at 392:
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. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.
[3] (1991) 173 CLR 349
This occurs where there is a “requirement” needing to be met that appears, in itself, to be non-discriminatory, but which can have the effect of discriminating against individuals. There is then a test of “reasonableness” as set out in s 51(b)(ii). However, the criterion of “non-English speaking background” implies no requirement for anything. Even if it is interpreted as “English as a second language”, there is only a requirement as such if the criterion was that an individual “understand and speak English as a second language”. The criterion does not imply that, in order to receive services, “an individual must be able to understand and speak English”. There is clearly no requirement, as such, either stated or implied in the criterion of “non-English speaking background”.
As for s 51(c), this also encompasses what we refer to as direct discrimination. The facts of this case come within it. Mr Atkinson is of British nationality, and a speaker of the English language. He is not from a non-English speaking background. Being from an English speaking background is a “characteristic” that appertains generally to persons of Mr Atkinson’s race (which pursuant to the definition of “race” includes nationality and origin), so there has been discrimination on the ground of race.
Neither s 51(a) nor s 51(c) requires a test of reasonableness to be applied.
However, again, it should be noted that there is no discrimination on the ground of race if it be shown that an act was done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race (s 65):
65. This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race.
We accept the respondent Health Service’s submission “...that the provision of medical services in collaboration with other services in accordance with the Strategic Plan is a fully evolved plan of action or systematic arrangement of an ongoing nature for the duration of the Plan with the identified aim or outcome of improving the health of Aborigines and Torres Strait Islanders” (para 34 Outline of Argument).
We accept that there was a “scheme” which embraced the concept of an identifiable programme or plan of action, which was coherent and had some unity of conception. We accept that what was contemplated was a significant plan, conceived at the time of commencement of the relevant project, involving a future series or system of activities, of an ongoing nature, in accordance with reasonably developed guidelines or concepts.
We make two additional points:
1.There is no reason to limit a scheme to a single or discrete purpose. A scheme may undertake or focus on a number of purposes all at the one time especially, as here, where the intent was to provide an integrated health service for those identified as most in need, rather than being provided by independent organisational arrangements. Here the scheme is much broader than the provision of medical services, although that is a very important part of it.
2.A scheme remains a scheme even though resource constraints or shifting demographics or social disadvantage may lead to a modification of eligibility criteria from time to time. As Ms Jones emphasised in her evidence before the Tribunal, the tightening of criteria is resource driven to enable Parks to put its available resources “into the needs of the populations with the greatest need and the least access to services” (TP46-47). The law in this area must be applied in a practical manner. Modification of a scheme may be necessary because resources tighten or needs change or new needs arise. Such matters do not call for a new scheme provided there is no fundamental shift in direction or purpose.
We were provided with a significant amount of documentation covering strategic plans at various levels of government leading to the establishment of the criteria used at the Parks. If the criteria used had not included any that were relevant to the Equal Opportunity Act, then the agency and the government more broadly would be applauded for their consideration of the key issues and their coherent and forward thinking plans. As noted above, if the scheme being considered was for those most in need and most at risk, then the plans would be worthy of high praise. However, a scheme or modification must take into account provisions of the Equal Opportunity Act 1984 (as amended).
A scheme or undertaking could readily benefit a number of races all at the one time. However, s 65 refers to “the benefit of persons of a particular race” (or races) (the emphasis is ours).
In light of the facts in this case, Aboriginal and Torres Strait Islanders have been identified as a particular race and we find that the exemption does apply to projects for the benefit of them.
Section 65 exemption in relation to the breach of s 51(c)
We do not repeat the discussion under the previous heading about the “scheme”.
Counsel for the respondent drew our attention to definitions of the word “particular” and argued that it can be interpreted to mean a “number of” rather than just a single item. If this were so, the word “particular” would be otiose. We are of the view that the use of the word within the section of the Act suggests that Parliament intended a scheme to apply to an identifiable, specific race or races. The word “particular” has a job to do. To be able to identify whether a scheme is discriminatory or whether it comes within the exemption, there is a requirement for a precise race or races to be identified.
We find that an exemption under s 65 does not apply to the scheme relating to people from a “non-English speaking background”. It may identify a feature or characteristic of race but does not identify a particular race or races. “Non‑English speaking” is a characteristic of a diverse set, even mixture of races from different nationalities, countries of origin, colour or ancestry. Such a broad range traverses persons with no identifiable race or races, therefore, does not come within an exemption under s 65.
Conclusion
We consider that there has been unlawful direct discrimination on the basis of race under both criteria – Aboriginal, Torres Strait Islander and from a non‑English speaking background, pursuant to ss 51(a) and (c) but that the respondent has come within the exemption in s 65 relating to the Aboriginal and Torres Strait Islander people.
We do note, however, that there has been a modification of eligibility criteria in the respondent’s scheme in relation to “race”. We were provided with evidence that the criterion is now “Aboriginal and Torres Strait Islander and those who have arrived in Australia within the past two years”. We find that such criteria would not bring the service into breach of the Act on the basis of race discrimination.
In relation to Mr Atkinson, we find that the discrimination had only minor impact on his feelings of hurt and distress. We therefore make no order for compensation, but order that the Central Northern Adelaide Health Service provide Mr Atkinson with a written apology.