Director-General, Department of Community Services v MM

[2003] NSWSC 1241

CITATION:	Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241 revised - 12/04/2006
HEARING DATE(S):	04/12/03
JUDGMENT DATE:	22 December 2003
JUDGMENT OF:	Barr J at 1
DECISION:	Question answered "yes".
CATCHWORDS:	Anti-Discrimination law - child welfare law - whether a Government department that deals with an application by a person to be appointed a foster carer provides a service for the purposes of the Anti-Discrimination Act.
LEGISLATION CITED:	Administrative Decisions Tribunal Act s118 Anti-Discrimination Act 1977 ss4, 39, 47, 49B, 49M, 54, 126 Children (Care and Protection) Act 1987 ss 3, 12, 12A, 34, 42, 44, 48, 49, 89, 91 Children (Care and Protection) Regulation 1996 ss22, 26 Children (Criminal Proceedings) Act s112 Equal Opportunity Act (WA) s66K Interpretation Act (WA) s18 Interpretation Act (NSW) s33 Race Relations Act 1976 (UK) Sex Discrimination Act 1975 (UK)
CASES CITED:	Attorney General (Canada) v Cummings [1982] FC 122 Australian Education Union v Human Rights and Equal Opportunity Commission and State of Tasmania (1997) 80 FCR 46 Commissioner of Police, NSW Police Service v Estate Edward John Russell and Ors [2001] NSWSC Farah v Commissioner of Police of the Metropolis [1998] QB 65 Ferneley v Boxing Authority of NSW (2001) 191 ALR 739 IW v City of Perth (1997) 191 CLR 1 Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 Plaintiff S 157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Purvis v State of New South Wales (Department of Education and Training) & Anor [2003] HCA 62 R v Entry Clearance Officer; ex parte Amin [1983] 2 AC 818 Savjani v Inland Revenue Commissioners [1981] QB 458 Tejani v Superintendent Registrar for the District of Peterborough [1986] IRLR 502 (CA)
PARTIES :	Director-General, Department of Community Services MM and Another
FILE NUMBER(S):	SC 30046/03
COUNSEL:	Appellant: T J Anderson Respondent: K L Eastman
SOLICITORS:	Appellant: L Goodwin Respondent: B L Hay

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

GRAHAM BARR J

Monday, 22 December 2003

30046/03 Director General, Department of Community Services v MM & Anor

JUDGMENT

1 HIS HONOUR: This is a reference to the Court by the Administrative Decisions Tribunal under s118 Administrative Decisions Tribunal Act1997 for its opinion on a question of law.

2 The respondents, whom I shall call MM and AM, are married. They have a strong desire to be parents, but cannot have children of their own. MM suffers from the illness generally called bipolar disorder. They applied to the New South Wales Department of Community services (“the Department”) to become foster carers of a child. They attended an event called an “information night”, at which MM told an officer of his disorder. He offered to supply a doctor’s report. He and AM were told that it would not cause any problem and were invited to attend a training weekend. They were unable to accept because of arrangements they could not change, but later on a representative of the Department invited them to attend another “information night” and the training course that would follow. They attended both functions. The Court has not been told exactly what was done at the training course but it is reasonable to infer that information was provided about what was involved in the fostering of children and how the Department went about its work. Since it occupied a weekend, it must have been substantial; more information must have been imparted than could have been achieved, for example, by issuing an explanation in a letter.

3 At about the same time MM spoke to an employee of the Department, Ms Hotchkiss, and told her about his disorder. Again he offered to supply a medical report. Ms Hotchkiss interviewed the respondents at their home. The Department considered their application and decided to refuse it. Ms Hotchkiss told the respondents that their application had been declined on the basis of MM’s mental illness. MM again offered to provide a medical report, with the intention of putting the Department’s mind at rest, but it was refused. MM asked for the decision to be given in writing. Another employee wrote a letter to the respondents confirming the Department’s decision. The reasons were expressed as follows-

An assessment of your capacities as foster carers indicates that MM’s mental illness of manic depression significantly detracts from your ability as a couple to provide foster care of the standard that we require for the children in our care. For example, AM indicated that there are time that she “backs off” from situations that are stressful to MM so he didn’t have another manic episode. My extensive experience of substitute care indicates that the experience of fostering often heightens existing difficulties in families to the detriment of the children in foster care.
The current Departmental approach is to err on the side of caution, rather than to approve carers where there are unresolved difficulties. We need to be placing children where the foster carers are each able to deal with their own stressful situations and feelings as well as being available and able to assist the foster child to deal with the results of their having been traumatised by abuse and/or neglect.

4 On 4 June 1999 MM lodged a complaint with the Anti-Discrimination Board under the Anti-Discrimination Act 1977 alleging that he had been discriminated against on the ground of his disability in the provision of services. On 8 January 2001 AM lodged a complaint with the Board alleging discrimination on the ground of disability as an associate of MM and on the ground of marital status. Both complaints could be made out only if the respondents could bring themselves within s47 and 49M respectively of the Anti- Discrimination Act, which deal, relevantly, with discrimination in providing services.

5 The Department responded to the complaints in writing, asserting that selecting persons to be departmental foster carers was not a service to prospective foster carers.

6 On 11 March 2002 the president of the Board referred the two complaints to the Administrative Decisions Tribunal. In the Tribunal the parties pleaded their cases in Points of Claim and Points of Defence. The complainants were MM and AM and the respondent was the State of New South Wales (Department of Community Services). There is no relevant difference between the respondent below and the applicant here. MM and AM asserted the nature of the services relied on and the State of New South Wales responded in the following manner-

At all material times, the Respondent had and continues to have responsibility for providing, funding and regulating a range of community services.
Particulars
(i) protecting and care for children;
(ii) assisting people with intellectual disabilities who have high support needs to achieve greater independence, involvement in the community and a better quality of life;
(iii) coordinating welfare services to help people affected by disasters;
(iv) funding community agencies to ensure services are provided:
(a) to prevent child abuse and neglect
(b) to care for and support children
(v) developing plans with community partners to ensure that vulnerable families and individuals have access to a range of community services;
(vi) providing emergency financial assistance to vulnerable families with children and to young people in its care;
(vii) providing care and support for children who can not live with their families;
(viii) providing and regulating adoption services;
(ix) regulating child care services and children’s employment;
(x) developing standards with other service providers for out-of-home accommodation for young people under 16 and monitor these standards.

Relevantly, the Respondent provided services to the Complainants within the meaning of sections 4 and 49M of the Act in relation to arranging for the placement of children with foster carers and selecting appropriate foster carers for those placements.

Particulars
(i) The Complainants applied for to be foster carers in 1999.
(ii) The Complainants’ application to be foster carers was reviewed and assessed by the Respondent in accordance with the policy Working with Children and Families released in August 1997.
(iii) The Respondent interviewed the Complainants to assess their suitability as foster carers.
(iv)The Respondent provided information to the Complainants in support of their application to be foster carers.
(v) The Complainants participated in training workshops prior to their application to be foster carers being determined.
...
The Respondent did not provide services nor has it ever been proposed that the Respondent provide services to the Complainants within the meaning of Section 4 of the Anti-Discrimination Act 1977.
Particulars
(i) The Complainants applied to be foster carers in 1999.
(ii) At all material times, providing foster care for children was a statutory function of the respondent pursuant to Section 91 of the Children (Care and Protection) Act 1987.
(iii) At all material times, for the purpose of placing a ward or protected person in foster care, the foster carer must be approved by the Minister, Section 91 of the Children (Care and Protection) Act 1987.
(iv) The decision of granting or refusing approval to persons to become foster carers involves the performance of a statutory duty of the Respondent and not a provision of a service to the Complainants.
(v) Some time in late May or early June 1999 the Complainants were advised that they were not approved as foster carers. Approval is at the discretion of the Minister. The approval does not amount to the granting of a licence to the foster carer but allows the Minister the discretion to place with a foster carer a child for whom the Minister has the parental responsibility.
(vi) The Complainants are not and were not intended to be the recipients of a service by the Respondent pursuant to Section 4 of the Act. The recipient of the service consistent with the Community Services (Complaints, Reviews and Monitoring) Act 1993 No 2 would be the child or children receiving foster care placement.
(vii) The principles of the Community Services (Complaints, Reviews and Monitoring) Act 1993 No 2 state that providing a service to a person must have as it’s paramount consideration the best interests of that person. Therefore, the paramount consideration is to the child or children receiving the service.

7 The parties agreed that the Tribunal should first decide whether the Department had provided services to the respondents when it considered and refused their application. On 6 December 2002 the Tribunal decided that it had. Its conclusion and part of its reasons were expressed as follows-

In our opinion both the Minister and the Director-General do provide “services” within the meanings of the sections 49M(1) and 47 of the Anti-Discrimination Act when they determine applications by people to become foster parents. We believe that this conclusion is supported by the reasoning in the judgments of all of the members of the High Court in IW v City of Perth (1997) 191 CLR 1. The relevant “service” is determining who may be a “foster parent” to undertake the care and custody of a child who is placed with an approved person by the Minister when acting pursuant to his/her power pursuant to section 91(1)(d)(ii) of the Children (Care and Protection) Act 1987, or by the Director-general when acting pursuant to his/her power in section 12A of the same Act. This conclusion does not derogate from the fact that the Minister and the Director-General are clearly providing “services” to relevant children, as well as to the community at large which has an interest in the well-being of children, when children are placed in foster care and when people are chosen to be “foster parents”. An activity may constitute a “service” to more than one person or group of persons. The fact that there may be multiple recipients of a “service” performed pursuant to a statutory grant of power was the point made in the extract from the judgment of Gummow J in IW v City of Perth (1997) 191 CLR 1 at 44 which we have reproduced at paragraph 15, above.

8 At the request of the appellant, the Director General of the Department, the Tribunal referred the following question to this Court for determination-

Was the State of New South Wales providing “services” to AM and/or MM within the meaning of s49M(1) and s47 of the Anti-Discrimination Act 1977 when determining their application to become foster parents?

The Legislation

9 The Anti-Discrimination Act makes it unlawful to discriminate in certain respects and on certain grounds. S49M is as follows-

49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

10 S49B defines what constitutes discrimination on the ground of disability. Relevantly, the section is as follows -

(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
…

11 S 47 is as follows -

47 Provision of goods and services
It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of marital status:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.

12 S39 deals with discrimination on the grounds of marital status. Relevantly, it provides -

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of marital status if, on the ground of the aggrieved person’s marital status or the marital status of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different marital status or who does not have such a relative or associate of that marital status, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of a different marital status, or who do not have such a relative or associate of that marital status, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
…

13 The term “services” is defined by s4 as including-

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,
(b) services relating to entertainment, recreation or refreshment,
(c) services relating to transport or travel,
(d) services of any profession or trade,
(e) services provided by a council or public authority,
(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

14 The appellant concedes that in carrying out his function he is a public authority for the purposes of para (e) of that definition.

15 S4A is as follows-

If:
(a) an act is done for two or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),
then, for the purposes of this Act, the act is taken to be done for that reason.

16 S54 relevantly provides that-

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:
(a) any other Act, whether passed before or after this Act,
(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,
…

17 The Children (Care and Protection) Act 1987 is called an Act with respect to the care of children. Part 2 is entitled Children’s Welfare and Division I of that part is entitled Provision of Care. At the time of the events giving rise to the appeal Division 1 contained ss12 and 12A, which provided as follows-

12 Objects of Part
(1) the objects of this Part are:
(a) to identify the special needs of children, whether or not under parental care, with respect to services necessary to promote their optimum development, and
(b) to ensure the provision of any necessary services for, and assistance to, families so that, where necessary, the care available to children in the family environment can be enhanced to such a degree as to enable them to remain in or return to family care.
(2) With the object of ensuring the provision of any necessary welfare services aimed at complementing the care given to children by persons responsible for them, the Minister may:
(a) disseminate information to the community with respect to welfare services for children and their families,
(b) provide assistance and support for the non-Government organisations and persons concerned in the establishment or development of welfare services for children and their families, and
(c) furnish advice to non-Government organisations and persons concerned in the provision of welfare services for children and their families with respect to the quality of any such services and the equipment needed to provide them.

12A Provision of care by the Director-General
(1) The Director-General may place a child who is in the care of the Director-General by virtue of any provision of this Act (Part 6 excepted) in the care of any person approved by the Director-General and willing to have the care of the child.
(2) For the purposes of this Act, a reference to a child who is in the care of the Director-General includes a reference to a child who is placed in the care of some other person under this section.

18 Part 3 deals with the licensing of child care arrangements and Division 4 of that Part with fostering. By s42(1) it is an offence for any person other than the holder of a fostering authority to have a child in his or her care for more than twenty-eight days in any period of twelve months. Subs (2) provides that subs(1) does not apply to certain children, including relevantly-

(b) a child who has been placed in the care of the person by, or with the written approval of, the Minister or the Director-General.

19 By ss42 and 44 it is an offence to foster a child or to place a child in the care of another for fostering in certain circumstances. The relevant parts of the sections are as follows -

42(1) A person (other than the holder of a fostering authority) who, for a period, or for periods in the aggregate, exceeding 28 days in any period of 12 months, has in his or her care one or more children for the purpose of fostering the children (whether or not for fee, gain or reward) is guilty of an offence.
2) Subsection (1) does not apply to or in respect of:

(b) a child who has been placed in the care of the person by, or with the written approval of, the Minister or the Director-General,
…
(4) A provision of this section does not, to the extent of the exemption, apply to or in respect of any person exempted from the operation of that provision under section 48.
44 Unauthorised foster placements prohibited
(1) If:
(a) a person places a child in the care of another person (other than the holder of a fostering authority) for the purpose of the child’s being fostered by the other person, and
(b) the other person has the care of the child (whether or not for fee, gain or reward) for a period, or for periods in the aggregate, exceeding 28 days in the period of 12 months after the child was placed in the person’s care,
the person who so placed the child is guilty of an offence.

(2) Subsection (1) does not apply to or in respect of:
(b) the placement of a child by, or with the written approval of, the Minister or the Director-General

20 By ss48 and 49 the Minister may exempt and revoke the exemption of persons from the operation of s42(1).

21 S34 is in Division 2, which deals with residential child care centres, and provides that a person who conducts such centre commits an offence unless the centre has been licensed.

22 Part 6 deals with wards and protected persons. A protected person is defined in s3 as including a child who is under the guardianship of the Director as a child awaiting adoption under s34, Adoption Of Children Act, 1965. At the relevant time there were these sections-

89 Administration
(1) In the administration of this Part, the welfare and interests of wards and protected persons shall be given paramount consideration.
(2) In determining any matter relevant to the welfare or interests of a ward or protected person, regard shall be had to the wishes of the ward or protected person.
90 Guardianship of wards
(1) The Minister is the guardian of a ward, and, subject to this Act, has the custody of a ward to the exclusion of any other person, until:
(a) the ward attains the age of 18 years,
(b) the guardianship of the Minister:
(i) is terminated by the Minister under subsection (2), or
(ii) is terminated by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children, or
(c) the ward ceases to be a ward by virtue of any other provision of this Act,
whichever first occurs.
(2) The Minister may terminate the Minister’s guardianship of a ward.
(3) Where the Minister terminates the Minister’s guardianship of a child who is a ward, the child ceases to be a ward.
(4) The guardianship of a child who has ceased to be a ward shall be determined as if the child had never been a ward.
91 Functions of the Minister in relation to wards and protected persons
(1) The Minister:
(a) shall provide for the accommodation, care and maintenance of wards and protected persons,
(b) may make payments, at such rates as may be prescribed by the regulations, to persons having the care of wards or protected persons,
(c) may direct the removal of any ward or protected person from one place to another,
(d) may, subject to such conditions as may be prescribed by the regulations and to such additional conditions as the Minister may determine, place any ward or protected person:
(i) in the custody of a person in charge of a non-Government organisation, or
(ii) for the purpose of the ward or protected person being fostered, in the custody of any person approved by the Minister,
being a person who is willing to undertake the custody of the ward or protected person,
(e) may terminate the custody of a ward or protected person who has been placed in the custody of a person referred to in paragraph (d) (i) or (ii), and
(f) may direct that a ward be restored to the custody of a parent of the ward or be placed in the custody of any other person.
(2) Payment to a person in respect of a ward or protected person shall not continue after the ward or protected person has attained the age of 15 years unless:
(a) the payment is made for the purpose of securing education or vocational training on a full-time basis for the ward or protected person,
(b) the ward or protected person is an invalid or is otherwise incapacitated, or
(c) the case possesses unusual features which, in the opinion of the Minister, call for special consideration,
and the Minister authorises the making of the payment.
(3) This section is subject, in relation to a ward or protected person, to the requirements imposed by the provisions of this or any other Act or of any declaration, order or other thing under which the person became a ward or protected person.

23 Regulations promulgated under the force of the Act relevantly provide-

22(1) A person who has custody of a ward or protected person under section 91 (1) (d) (i) of the Act, and who is the principal officer of an agency or of a program agency, must not place the ward or protected person in the care of any other person unless that other person:
(a) has furnished to the principal officer such information as the principal officer may reasonably require in order to assess the person’s suitability to be a foster parent of the ward or protected person, and
(b) has successfully completed such course of training as the principal officer may reasonably require in order to ensure that the person is capable of exercising the functions of a foster parent of the ward or protected person.
(2) A ward or protected person is not to be placed in the custody of any person under section 91 (1) (d) (ii) of the Act unless:
(a) the person has furnished to the Director-General such information as the Director-General may reasonably require in order to assess the person’s suitability to be a foster parent of the ward or protected person, and
(b) the person has successfully completed such course of training as the Director-General may reasonably require in order to ensure that the person is capable of exercising the functions of a foster parent of the ward or protected person.
26 A person in whose custody a ward or protected person is placed under section 91 (1) (d) of the Act has the custody of the ward or protected person subject to the following conditions:
(a) the person is to provide for the ward or protected person’s physical, social and emotional well-being,
(b) the person is to ensure that, in the case of a ward or protected person who is of a particular religion, the ward or protected person is given the opportunity to be educated in the tenets of that religion,
(c) the person is to provide the ward or protected person with food, clothing and accommodation that is both suitable and adequate for the needs of the ward or protected person,
(d) the person is to ensure that the ward or protected person receives any medical or dental treatment that the ward or protected person needs,
(e) the person is to ensure that the ward or protected person is provided with recreational activities that are both suitable and adequate to the needs and interests of the ward or protected person,
(f) the person is to ensure that, in the case of a ward or protected person who is under the age of 15 years, the ward or protected person attends school regularly,
(g) the person is to ensure that any household duties required to be performed by the ward or protected person are commensurate with the capabilities of the ward or protected person.

The Proper Approach to the Construction of the Statute

24 The long title of the Anti-Discrimination Act is An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons. Its object is to eliminate discrimination in a range of activities in public life.

25 In recent times, Justices of the High Court of Australia have made statements about the proper approach to the construction of remedial acts like the Anti-Discrimination Act. In IW v The City of Perth & Ors (1996-1997) 191 CLR 1 the Court was considering the Equal Opportunity Act of Western Australia, s66K(1)(a) and (c) of which made it unlawful for a person who provided services to discriminate against another on the ground of the other’s impairment by refusing to provide those services or in the manner in which the services were provided. Brennan CJ and McHugh J noted the requirement of s18 of the Interpretation Act of Western Australia that preference be given to the construction of a written law that would promote the purpose or object underlying the law. I note the provisions of s33 of the Interpretation Act, NSW, which is as follows-

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

26 Their Honours observed that it was necessary to construe the Act beneficially to its purposes, not narrowly. Dawson and Gaudron JJ said that in construing legislation designed to promote basic human rights and dignity the Courts have a special responsibility to take account and give effect to its purpose (at 22). So the provisions of an Act concerned with discrimination in the provision of goods and services should be construed as widely as their terms permit.

27 In Purvis v State of New South Wales (Department of Education and Training) & Anor [2003] HCA 62 McHugh and Kirby JJ, speaking of the Disability Act, 1992 of the Commonwealth, warned against narrow construction of ameliorating legislation. Their Honours said at pars 17-20-

17. The Disability Discrimination Act 1992 (Cth) ("the Act"), reflecting international developments, has introduced important protections for disabled people. In certain cases, the Act requires that disabled persons be given equal treatment and it makes it clear that the equal treatment must be real and not notional. To avoid a finding of discrimination against a disabled person, a person may have to take steps that cause expense and inconvenience to that person. But that is what the Act requires unless the expense and inconvenience amounts to unjustifiable hardship.

18. The international developments reflected in the Act have the high object of correcting centuries of neglect of, and discrimination and prejudice against, the disabled. It would be wrong and contrary to the purpose of the Act to construe its ameliorative provisions narrowly. …
As Dixon CJ once pointed out, "once the subject matter is fairly within the province of the Federal legislature the justice and wisdom of the provisions ... are matters entirely for the Legislature and not for the Judiciary." The correct path of judicial interpretation - as always - requires that the Act be applied according to its terms and purposes. If its application in a particular case operates or may seem to operate harshly, it is a matter for the Parliament to correct. And it should not be forgotten that construing the Act narrowly because of the consequences in a particular case may lead to injustices in other cases perceived by the judicial mind as more deserving….
It is essential, therefore, that Australian courts give full effect to the language and purpose of the ameliorative provisions of the Act whatever opinion individual judges may have of the justice or wisdom of particular provisions. This is particularly so where, as here, the Act contains novel concepts and beneficial objects and applies to many cases involving circumstances quite different from the present …(footnotes omitted).

Services

28 The term “service” or “services” is capable of broad application. Among its ordinary meanings are the action of serving, helping or benefiting; conduct tending to the welfare or advantage of another: OED (2nd Ed) XV, 36; an act of helpful activity: Macquarie Dictionary. It is a word of complete generality: IW v City of Perth per Dawson and Gaudron JJ. Their Honours noted that it should not be given a narrow construction unless that is clearly required by definition or context.

29 The definition in s4 indicates only what is included in the meaning of the word, not what is excluded. Since the matters included in the definition all fall within the ordinary notion of services the definition is to be taken as signifying everything which falls within that notion: ibid. Since neither the terms nor the content of ss47 and 49M(1) provide any contrary indication, “services” is to be read as having its ordinary and broad meaning: IW v City of Perth at 23.

30 In IW v City of Perth the majority considered that the process by which a city council considered applications for planning approval and granted or withheld approval constituted the provision of services for the purposes of the Equal Opportunity Act of Western Australia. That Act defined the term inclusively in a manner quite like that in s4 of the New South Wales Act. Brennan CJ and McHugh J, who took the narrowest view, distinguished between the exercise of a quasi-legislative role and a role of providing services. They considered that a “service” properly described as a deliberative process was not a service for the purposes of the Act.

31 The other members of the High Court took a broader view. Dawson and Gaudron JJ considered that the term “services” was apt to include the administration and enforcement of a planning scheme. So, too, did Toohey J. Gummow J considered that the term “service” and its variants were of wide and varied meaning. His Honour referred to the work of a public servant as serving the State or community in a particular capacity: at 41. Kirby J considered that the concept of “services” was extremely wide and that its meaning was to be derived from the context. He thought it wide enough to cover the administration and performance of statutory functions: at 75.

32 In Commissioner of Police, NSW Police Service v Estate Edward John Russell and Ors [2001] NSWSC 745 Sully J was concerned with the meaning of “services” for the purposes of s19 of the Act, which deals with discrimination on the ground of race. On the occasion giving rise to the complaint a number of constables of the New South Wales Police Service had pursued and arrested the complainant. The question for the Court was whether during the course of that pursuit and arrest the constables had provided a “service”. The Police Service Act defines police services as including services by way of the prevention and detection of crime and the protection of persons from injury or death and property from damage, whether arising from criminal acts or in any other way. His Honour held it to follow that such services, provided by serving police officers, were services provided by a public authority for the purposes of s19. His Honour considered that the officers who pursued the complainant and those who arrested him were performing services. As soon as he had been arrested, the arresting officers and any other officer who had any part in the way he was handled or who witnessed the way in which he was handled became charged with a public duty to provide him services by way of protection of his person from injury or death and the protection of his property from damage.

33 In Ferneley v Boxing Authority of NSW (2001) 191 ALR 739 Wilcox J observed, obiter, that the activity of registering or refusing to register a boxer could be characterised as a service.

34 In Australian Education Union v Human Rights and Equal Opportunity Commission and State of Tasmania (1997) 80 FCR 46 Merkel J considered whether trustees performing functions under the Superannuation Act 1938 (Tasmania) and the Retirement Benefits Act 1970 (Tasmania) and the Retirement Benefits Act 1993 (Tasmania) were performing services for the purpose of the Sex Discrimination Act. His Honour observed that the activities and functions of the trustees involved the provision of services within the ordinary meaning of that word as discussed in IW v City of Perth.

35 The performance of a public function has been treated as a service: Tejani v Superintendent Registrar for the District of Peterborough [1986] IRLR 502 (CA). There is no suggestion that the fact that the function is a public one should lead to any different enquiry about the meaning of the term “services”.

36 In Attorney General (Canada) v Cummings [1982] FC 122 the Department of National Revenue of Canada was said in assessing taxes under the relevant income taxation act to have been engaged in the provision of services within the meaning of the relevant human rights Act.

37 In Savjani v Inland Revenue Commissioners [1981] QB 458 the Court of Appeal of England decided that the Inland Revenue was providing services to the public in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction and in disseminating and giving advice to taxpayers to enable them to claim tax relief.

38 In R v Entry Clearance Officer; ex parte Amin [1983] 2 AC 818 the House of Lords held by a majority of three to two that a clearance officer who vetoed aspiring immigrants to the United Kingdom was not providing a service within the meaning of the relevant section of the Sex Discrimination Act 1975 (UK). The officer was said instead to have been performing his duty of controlling would-be immigrants. The judgment in Savjani was explained as meaning that the Inland Revenue had two functions, a duty of collecting revenue, which was not a service, and a service of providing taxpayers with information, which was.

39 In Farah v Commissioner of Police of the Metropolis [1998] QB 65 the English Court of Appeal held that those duties of a police officer that involve assistance to or protection of the public constitute services to the public for the purposes of the Race Relations Act 1976 (UK).

40 It sufficiently appears from the Children (Care and Protection) Act that the Minister and the appellant (and I see no purpose in distinguishing between them – I shall simply refer to the Department) have the responsibility of providing care for children that come within the purview of the Act. The Department has the responsibility of fostering children. No child maybe lawfully fostered without the approval of the Department. It is responsible for the selection of persons who may lawfully foster children.

41 It was conceded by counsel for the appellant that the Department provided a service to the children with whom it dealt. Obviously, to provide care, housing and other benefits is to provide services. However, the fact that a person provides a service directly for the benefit of one person does not mean that that service is not also provided for anyone else. As Sully J found in Commissioner of Police v Russell, police officers may in relevant ways provide a service to the community at large as well as to individuals.

42 It seems to me that those who foster or aspire to foster children are not simply contractors who bid to supply a service to the Department. What they do can be seen in that light, of course, but caring for a child in every way as though it were one’s own is not to be equated merely with the provision of housing, food or other personal needs or services. An aspiring foster carer has a natural strong desire to have, cherish and nurture a child. It is no coincidence that those who wish to foster children are sometimes unable to have their own children. The Department exploits that desire in making the arrangements that it must. I do not speak of exploitation in any critical way. It is in the interests of the foster carer, the child and the community that the Department should take advantage of this natural desire. People apply to become foster carers out of a strong desire to give and to receive. They want to receive the privilege of having a child they can treat more or less as their own. It seems to me that that privilege is a benefit and that to confer it or the chance of it is to provide a service within the meaning of ss47 and 49M(1) of the Anti-Discrimination Act. The privilege is also an advantage, as much to the foster carer as to the foster child, which the Department’s activity tends to give. I think that in offering the respondents the chance of becoming foster carers the Department provided a service to them.

43 As part of its process of selecting suitable persons to foster its children the Department conducts courses at which it disseminates information to those who would foster them. It uses other avenues of communication as well. It is well established by the cases I have reviewed that such an activity may amount to providing services. I think that the Department provided a service to the respondents when it gave them information at the “training weekend”.

44 I think that when the Department receives and deals with applications from those who wish to be foster carers it provides a service to the applicants in much the same way as a Local Government authority provides a service in dealing with development applications. I think that in dealing with the respondents’ application the Department provided a service to them.

Should the Anti-Discrimination Act Be Read Down?

45 In coming to this conclusion I have given full effect to the provisions of the Anti-Discrimination Act and what I see as the objects of the Children (Care and Protection) Act. However, there are other parts of the latter Act upon which the appellant relies in his submission that the former Act should be read down so as not to apply to him.

46 It was submitted that if the Department was rendering services they were not services of a kind that the Parliament must have contemplated when it enacted ss47 and 49M(1). That conclusion followed for these reasons-

The Department was bound by s89(1) to give paramount consideration to the welfare and interests of any ward or protected person for whom it had a duty to provide foster care;
Paramount consideration of such welfare and interest might require the Department to discriminate against aspiring foster carers in a manner that was unlawful by the criteria in the Anti-Discrimination Act ;
The effect of s4A Anti-Discrimination Act was that if the Department discriminated in a manner that was unlawful because of the Anti-Discrimination Act , as well as in a manner that was lawful, the welfare and interests of the relevant child would suffer because the action of the Department would be deemed to have been taken for the reason that constituted unlawful discrimination;
So the obligations of the Department to applicants under the Anti-Discrimination Act and to children under the Children (Care and Protection) Act were in conflict;

47 It was submitted that ss4A, 47 and 49M(1) of the Anti-Discrimination Act were of general application, but s89 and 91 of the Children (Care and Protection) Act were special and, being repugnant, should prevail. This construction was supported by the existence of s112 Children (Criminal Proceedings) Act of a right of appeal independent of any question of discrimination against the Department’s refusal to appoint as a foster carer.

48 The principle by which the words of a statute are not to be construed as having being revoked or altered by the general words of another statute was discussed by Dixon J in Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at 29 in these words-

The rule of construction which is invoked was stated by Coke in terms which restrict it to the operation of one statute upon another. “only it must be known, that forasmuch as Acts of Parliament are established with such gravity, wisdom and universal consent of the whole realm, for the advancement of the commonwealth, they ought not by any constrained construction out of the general and ambiguous words of a subsequent Act to be abrogated” – Dr Foster’s Case . Sir Orlando Bridgman stated it too as if it was a principle relating to implied repeal by subsequent enactment. “The law will not allow the exposition to revoke or alter, by construction by general words, any particular statute, where the words may have their proper operation without it”; Lyn v Wyn . But the rule has been used in relation to the abrogation by statute of a charter or custom and to the interpretation of a single statute containing a special and a general provision.
The principle was expounded by Lord Sumner when he was a judge of the King’s Bench Division: - “The grounds upon which the courts have construed general words in statutes so as not to interfere with prior special words or special Acts or prior rights publicly granted to bodies corporate or political rest upon the theory, and (as I think) the fact, of the continuity and justice of English legislation. It is not to be supposed that the mind of the legislature continuously deliberating and expressing itself in statutes will, after full deliberation at one time, subsequently alter the result of that deliberation by mere general words not so expressed as to bring the special matter within their purview. It is not to be supposed that the mind of the legislature so operating and expressing itself will take away the rights previously granted to subjects without compensation and without specific statements to that effect. This is the effect of the cases cited in argument though some possibly would not now be followed, as for example where an Act of Parliament was read as not interfering with a local custom”: Attorney-general v Exeter Corporation (footnotes omitted).

49 In order to exemplify the kind of problem that might otherwise arise counsel pointed to a portion of a manual issued by the Department dealing with the assessment of foster carers. Under the heading “excluders to full assessment” appeared the following statement-

The following criteria would exclude an applicant:

· lifestyles detrimental to the ability to care for a child/young person,

· interpersonal behaviour or values which could mean applicants are unable to meet a child/young person’s needs in foster care;

· a record or pattern of violence, sexual assault or emotional abuse,

· substance abuse (drugs and alcohol).

· The inability to work with the Department, birth family or significant people in the child/young person’s life,

· Psychiatric history, where assessment by a competent authority has diagnosed the applicant as inappropriate to provide care for children in substitute care.

50 It was submitted that the Department might lawfully reject any application on all or any of the first five criteria. However, if in addition the final criterion, psychiatric history, were also a reason for rejecting the application, the whole reason for rejection would be tainted and unlawful.

51 There are several reasons why I do not accept these submissions. The two Acts are not cognate. The submissions proceed on an understanding that there is no express inconsistency and that the repugnancy contended for is implied.

52 I do not think that the Acts are repugnant to one another. A number of provisions in the Children (Care and Protection) Act appear calculated to relieve potential tensions between competing obligations under the Acts. First, s49B(1)(b), which deals with a requirement that the aggrieved person comply with a condition which would not be imposed upon others, is limited to requirements which are not reasonable in the circumstances of the case.

53 Secondly, s49M(2) provides that discrimination on the ground of disability is not unlawful if unjustifiable hardship would otherwise result to the person providing the services. It was submitted by counsel for the appellant that one could not contemplate a state of affairs in which the Department might suffer unjustifiable hardship if it could not discriminate against an applicant on a ground proscribed by the Anti-Discrimination Act. I disagree. It is not speculative to suggest that the Department might successfully argue for exemption on the ground of unjustifiable hardship if the result would otherwise be that it was bound to place a child into the care of an applicant who was unsuitable because of a disability.

54 Apart from these matters, s54 protects acts necessarily done in order to comply with the requirement of an Act, Regulation or other instrument. Given the requirements of ss89 and 91 in particular of the Children (Care and Protection) Act it seems to me arguable that discrimination against an applicant on the ground of disability may not be held unlawful if it is necessary to do so in order to give paramount consideration to the welfare and interests of a child.

55 I do not find persuasive, either independently or as supporting the foregoing argument, the circumstance that there are two avenues of appeal, one dealing with alleged unlawful discrimination and the other with any other available ground. It commonly happens that there are independent avenues of appeal against the decisions of courts and tribunals. For example, in a criminal case one might appeal from a magistrate to the District Court by way of a rehearing or to the Court of Appeal on a question of law. There is a well-trodden avenue of appeals from planning decisions by councils, yet IW v The City of Perth shows that there is a second avenue of appeal which concerns itself with discrimination in planning decisions.

56 It was submitted that if the Anti-Discrimination Act had been intended to apply to the fostering activities of the Department particular mention would have been made of them, rather than leaving them to be governed by general words about the provision of services, a term inapt to describe fostering. One example pointed to was discrimination in employment and applications for employment, which is dealt with in s40 (on the ground of marital status) and s49D (on the ground of disability), and there are others. The Act should be taken to mean that the provision of employment was not the provision of a service. The Act, it was said, spoke about what was really happening, namely work. If it had intended to deal with the fostering of children it would have said so in clear terms.

57 Then it was submitted that the Act should be taken as not intended to apply to fostering because it omitted to provide a necessary exception to the effects it would otherwise have on fostering. In dealing with discrimination on the ground of disability of workers and applicants for work the Act provides, by s49D, that such discrimination is not unlawful if in all the relevant circumstances the person discriminated against would be unable to do the job or would be able to do it only if services and facilities were provided which it would be unjustifiably hard for an employer to provide. Where, it was asked, was there an exception for an applicant to foster who, because of a disability, would be unable to carry out the duties of a foster carer?

58 Then it was submitted that if the term “services” contemplated the fostering of children, the consequences would be serious and wide-ranging. It would affect the work of private agencies to whom the care of children is entrusted and who have to select foster parents. It would affect the work of agencies who have the duty to select persons who voluntarily provide their services, such as counsellors, social workers and the like.

59 I think that there is a simple answer to all these submissions. The Parliament has made its intention known in the Act and the duty of the Court is to give effect to that intention. It is not for the Court to construe a statute by reference to concerns that the legislation may operate harshly in particular respects, but according to its terms and purposes: Purvis v The Queen. In Plaintiff S 157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Gleeson CJ said at para 30-

“courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffman recently pointed out in the United Kingdom, for parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be “subject to the basic rights of the individual”. (footnotes omitted)

60 S126 of the Anti-Discrimination Act provides as follows-

(1) The Minister on the recommendation of the Board, may, by order published in the Gazette, grant an exemption from this Act or the regulations or such parts of this Act or the regulations as are specified in the order in respect of:
(a) a person or class of persons,
(b) an activity or class of activity, or
(c) any other matter or circumstance specified in the order.
(2) Such an exemption remains in force for the period specified in the order, which cannot be more than 10 years.
(3) The Minister may, on the recommendation of the Board, renew any exemption, for no more than 10 years at a time, by making a new order in accordance with subsection (1).
(4) The power to make an order conferred by this section includes power, exercisable in the same manner and subject to the same conditions, to vary or revoke any order so made.

61 Thus the parliament has given to the Minister administering the Act the right to restrict the effect of the Act as it applies to particular classes of persons and activities. No doubt the Minister can do so if the effect of the legislation is to produce the serious consequences contended for.

62 It is not necessary to come to a conclusion about this in the present judgment, but there may be a further answer to the postulated need to discriminate against an applicant on the ground of a psychiatric history (see the last criterion in the list I have extracted from the Department manual). Such discrimination may not turn out in any particular case to have been on the ground of a disability at all, as to which see the remarks of Gleeson CJ in Purvis v State of New South Wales (Department of Education and Training) & Anor at paras 9-14 about the proper basis for the comparison mandated by ss39 and 49B.

63 I do not think that the words of the relevant sections of the Children (Care and Protection) Act show any intention by the Parliament, to use the words of Lord Sumner, to take away rights previously granted to subjects without compensation and without specific statements to that effect. It seems to me that, far from evincing any intention to except the Department from obligations under the Anti-Discrimination Act, the Parliament has enacted two statutes which stand easily together. I think that if circumstances arise that oblige the Department in the interests of a child to discriminate in circumstances that are prima facie unlawful under the Anti-Discrimination Act the safeguards under the Children (Care and Protection) Act are apt to render not unlawful discrimination which is just and necessary.

64 Accordingly I answer the question “yes”. I remit the case to the Administrative Decisions Tribunal for determination.

65 The parties have agreed that whatever the result of this appeal there should be no order as to costs. I therefore make no order.

**********

Last Modified: 07/16/2007