31 July 1997 Anti-discrimination law - Local Government
Anti-discrimination law—Direct discrimination—Discrimination on ground of impairment—Discrimination in provision of services—Refusal of planning approval for drop-in centre for people with HIV/AIDS—Application made by incorporated association of which appellant was a member—Meaning of "services" in s 4(1) of Equal Opportunity Act 1984 (WA)—Whether refusal of planning approval by Council was a refusal to provide "services"—Whether appellant an "aggrieved person"—Identification of notional person with whom aggrieved person is to be compared in determining whether discriminatory treatment—Whether refusal was "on the ground of" impairment. Local Government—Nature of test to determine ground of decision made by a decision-making body—Whether councillors personally liable for causing or aiding act of discrimination. Equal Opportunity Act 1984 (WA), ss 4(1), 66A(1), 66K(1), 160. Local Government Act 1960 (WA), s 680.
Orders
ORDER
Appeal dismissed with costs.
Decision
BRENNAN CJ AND McHUGH J
The principal question in this appeal is whether the City of Perth unlawfully discriminated against an association incorporated under the Associations Incorporation Act1987 (WA) by refusing planning approval for the use of premises for persons infected with the Human Immunodeficiency Virus ("HIV") which can lead to Acquired Immune Deficiency Syndrome ("AIDS").
The appeal is brought against an order of the Full Court of the Supreme Court of Western Australia which held that the Equal Opportunity Tribunal of that State had erred in law in finding against the City of Perth ("the City") on that issue. Section 66K(1)(a) of the Equal Opportunity Act1984 (WA) ("the Act") provides that it is unlawful for a person who provides services to discriminate against another person on the ground of that person's impairment by refusing to provide that person with those services. The appellant is a member of the association, People Living With Aids (WA) Inc ("PLWA"), and contends that he has standing to bring an action for breach of s 66K(1)(a). He also contends that the City refused to approve the change of use because many of those who would be attending the premises were HIV infected and the Full Court erred in finding that the refusal was not a discriminatory refusal of a service that the Council provided to ratepayers.
PLWA seeks Council approval for a drop-in centre
In January 1990 PLWA applied to the Town Planning Committee of the City for approval for the use of the premises as a day time drop-in centre for persons who were HIV infected. Approval was needed because the premises were in an area zoned for shopping use. The City Planner reported to the Town Planning Committee that the proposed use was compatible with the requirements of the City Planning Scheme and would not adversely affect the amenity of the area. He recommended that the application be approved. Nevertheless, on 19 February 1990, the Committee…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
IW v City of Perth [1997] HCA 30
Case
[1997] HCA 30
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by IW, a member of an incorporated association, against the City of Perth. The dispute arose from the City of Perth's refusal to grant planning approval for a proposed drop-in centre for people with HIV/AIDS. IW alleged that this refusal constituted unlawful discrimination on the ground of impairment, contrary to the *Equal Opportunity Act 1984* (WA).
The central legal issues before the High Court were whether the City of Perth's refusal of planning approval amounted to a refusal to provide "services" within the meaning of the *Equal Opportunity Act 1984* (WA), whether IW was an "aggrieved person" under the Act, and how to identify the appropriate "notional person" for comparison when determining if the treatment was discriminatory. The Court also had to consider whether the refusal was "on the ground of" impairment and whether the councillors could be held personally liable for causing or aiding the act of discrimination.
The High Court reasoned that the provision of planning approval by a local government authority did not constitute a "service" in the ordinary sense contemplated by the *Equal Opportunity Act 1984* (WA). The Court held that the Act was not intended to regulate the exercise of statutory powers by public bodies in the way that IW contended. Furthermore, the Court found that the refusal was not made "on the ground of" impairment, as the decision-making process focused on planning considerations rather than the characteristics of the intended users of the centre. The Court also determined that the councillors were not personally liable.