Martin v State Housing Commission

[1999] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P1 of 1999

B e t w e e n -

JOAN MARGARET MARTIN

Applicant

and

STATE HOUSING COMMISSION

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 1999, AT 3.17 PM

Copyright in the High Court of Australia

MS C.L. TAN:   May it please the Court, I appear on behalf of the applicant. (instructed by Dwyer Durack)

MR G.T.W. TANNIN:   May it please the Court, I appear on behalf of the respondent. (instructed by the Crown Solicitor for Western Australia)

KIRBY J:   Yes, Ms Tan.

MS TAN:   Your Honours, this case is one of general and public importance, both in terms of the legal issues and the public interest in the subject matter.  The legal issues concern the interpretation of indirect discrimination provisions, which are in similar form in most other States and in the Commonwealth and the case therefore raises issues of general application throughout Australia.  Unless overturned, the case in question, being a unanimous decision of the Full Court, may well be used as a precedent.  The subject matter also concerns major social issues in Australia today and that is eviction of Aboriginal tenants in situations of overcrowding.  The Equal Opportunity Tribunal, in its judgment, discusses these problems and classifies it as administrative injustice but, in my submission, there is a public interest in the question of whether any practical remedy is available through indirect discrimination law in cases where the evictions might rise from a chain of events caused by cultural obligations to house family members and, if so, in what circumstances.

KIRBY J:   Can I ask you a question at the outset and it arises in a sense out of a recent case we had on anti-discrimination legislation in Brisbane?  It concerns the finding of the Tribunal, in the first instance, that it was not satisfied that your client was treated less favourably on the ground of race.  Now, what I am not clear about is how it was, in a case where the appeal to the Supreme Court lay only on a question of law that, having regard to the findings of the Tribunal, that Justice Wallwork had the authority to disturb the decisions of the Equal Opportunity Tribunal of Western Australia.

MS TAN:   Your Honour, on that point, Justice Wallwork decided that the Tribunal made an error of law in the way that it approached its task as to what the appropriate attitude to the evidence should have been.  The Tribunal examined or recited the different evidence on the question of whether there was a cultural obligation or not.

HAYNE J:   Did it not make a finding, contrary to your client’s interests, at page 98, line 5 to 8, namely, a finding that, on the balance of probabilities, it was not satisfied that there was a “cultural obligation of the kind contended for”?

MS TAN:   It did make that statement, but, in my submission, the remainder of that paragraph shows where it went into error and what mistake it made in terms of how it came to that finding, because it then goes on after that very same sentence that your Honour has read out - it said:

The evidence indicates that family ties are a powerful influence within Aboriginal communities but the Tribunal is not satisfied in the circumstances of this case that independently of her sense of responsibility as a mother, Mrs Martin was obliged to take in up to 16 members of her family in a comparatively small house –

and the relevant issue there is “independently of her sense of responsibility as a mother”.  The Tribunal did not decide by balancing out the different evidence given by the various witnesses in deciding on questions of credibility; it turned very much on this question of whether it was satisfied, that there was an obligation independently of Mrs Martin’s sense of responsibility as a mother.

Justice Wallwork, in dealing with that matter, said that that was incorrect, to look at it as an either/or situation; there is no need for there to be an obligation which is independent from the obligation as a mother.  The cultural obligation was a cultural obligation on mothers and that is, in my submission, the appropriate course to take.

KIRBY J:   But in the context, would one not read the statement that Justice Hayne has drawn your attention to, as indicating that the cause for her generosity was a maternal cause, which would apply to any mother and not particular to an Aboriginal, who happened to be a mother?  Is that not how one would read that.

MS TAN:   Well, in my submission, that is not the way the Tribunal has put it, because they keep talking about a sense of responsibility, independently, upon the position as a mother, and Mrs Martin gave evidence that there was a cultural obligation and also she said that that was an obligation as a mother.  Justice Wallwork, In my submission, approached the matter correctly at page 146 of the application book, where he said:

The Tribunal then found that the evidence indicated that family ties are a powerful influence within Aboriginal communities but it was not satisfied in the circumstances that independently of her sense of responsibility as a mother, that the appellant had been obliged to take in up to 16 members of her family –

and then he goes on at page 146 from about line 14 to say:

The Tribunal found that the accommodation had been provided by the appellant principally as a mother on a short term basis in order to meet an emergency –

Now, the fact that she might have had an obligation as a mother does not mean that she did not do it as part of her obligation as an Aboriginal mother, in particular, as part of a cultural obligation.

HAYNE J:   Let it be assumed that that is a sufficient answer to what may appear to be the contrary finding by the Tribunal; assume that in your favour.  That deals with how it was that the number of people concerned came to be living in the house.  But, as I understood it - correct me if I am wrong - the eviction occurred not because too many people were living in the house, but because there were acts, described as “acts of nuisance”, to neighbours – throwing rocks, bits of concrete and the like.  Why is this question of how many are in the house important?

MS TAN:   It is important to the question of causation of ultimate nuisance.  The Tribunal made a finding that the requirement or condition imposed was a requirement or condition that there be no nuisance due to overcrowding.  So the Tribunal accepted that it was overcrowding that caused the nuisance and, in my submission, it is artificial to then just classify the requirement or condition just as nuisance, without looking at the, I suppose, sub‑requirements or conditions that make up that ultimate requirement, and that was really the second special leave point that I was raising in this application, and that is the question of section 5 of the Equal Opportunity Act and the multiple causation issue, in a sense that the applicant, in a sense that the applicant submits that the court should not have simply looked at the final cause of the eviction, that is, the breach or nuisance condition, in isolation from the different requirements that give rise to that, the multiple causes that might lead to the nuisance.  If overcrowding was one of the causes of nuisance and if overcrowding was culturally based, then, even though it may not be the only or necessary cause, this could mean that the eviction was still on the ground of race.

Another way of looking at it would be to say the eviction could be caused by two grounds:  one ground is a requirement that there should be no nuisance arising from overcrowding and another, a requirement that there should be no nuisance arising from any other cause, and it is submitted by the applicant that the fact that the Full Court might have concluded that there are some matters which may not have arisen from overcrowding, does not resolve the matter, because section 5 of the Equal Opportunity Act still requires a consideration of whether one of the grounds was culturally based and that is related to the question of overcrowding causing nuisance.

By analogy, in my submission, it is artificial to just look at the end term, which has been alleged to have been breached.  For instance, by analogy, one could say that there may be, in the terms of one’s employment, that you have to take urgent work and finish it on time, and that this will usually be complied with by most people, of say, all religions most of the time.  If, for instance, however, work arrives late on a Friday afternoon and has to be finished by Saturday, then one could assume that orthodox Jewish people, who keep the Sabbath, cannot comply with such a condition and that a substantially higher proportion of non-Jewish people in those circumstances could comply.  In my submission, it would be artificial in those cases to simply say that the requirement is that there is simply a requirement to do urgent work.  That could be breached by a whole range of reasons.

One has to look at what are the sub-requirements that make that up, and that is, in my submission, a matter which has not been adequately dealt with by superior courts in this country in relation to what extent section 5 might apply in indirect discrimination cases.  Obviously section 5 is applied a lot in direct discrimination cases where there might be lots of different motivations that give rise to an ultimate decision but, in indirect discrimination cases, my submission is that the question is, you still have to look at whether there are different requirements or conditions that lead to the ultimate requirement or condition and whether, if one of those different requirements or conditions is indirectly discriminatory in its application, then that may well be sufficient to amount to discrimination on the grounds of race, in general terms.  You cannot just look at the ultimate terms, such as no nuisance; you have to look at the matters that give rise to the nuisance and if some of those matters are culturally based and based on race, then that may well be sufficient, in my submission, to give rise to the ultimate finding of indirect discrimination.  It is not enough just to say, just because there are some causes that may not be racially based does not mean that there is no discrimination and that is the basis of section 5.  It is not necessary for the racial discrimination aspect to be the only or dominant or substantial ground even.

KIRBY J:   But all of that is built on the stack of cards that depends upon the factual finding at first instance, you see.  The issue that is troubling the Court is whether – no one doubts that the question of the so-called requirement of reasonableness is an important question, nobody could dispute that the question of multiple causes is a significant question; the issue is whether this is an appropriate vehicle, given the finding at first instance by the Tribunal which, upon one view, said that it rejected the argument of your client that this was based on race and said that what she did had nothing to do with her race, it was just a friendly act because she was a mother, taking in other people, and that it was not even the overcrowding which caused the nuisance that led to the eviction; it was the anti-social acts outside the overcrowded flat, that led to that.  Now these are factual matters, and everything rests on this pack of cards that raises potentially important questions, but which can be struck away by the factual findings at first instance.

MS TAN:   I accept that it is the case that there has to be a finding of cultural obligation to house family members to that extent but, in my submission, the Full Court did not really analyse that issue in any great extent.  The Full Court’s decision was primarily concerned with the issue of whether that cultural obligation was subject to some limit of reasonableness, and that is, as your Honours could see in Justice White’s reasoning, he spends sometime going through that issue, saying that there has to be this limit based on reasonableness.  For instance at application book page 188, he starts by saying:

Overcrowding is one thing.  Overcrowding resulting in the commission of acts of nuisance is another.

Then he goes on to say at line 16:

If the cultural obligation is subject to some limitation, as to which no evidence was given by Dr Stanton, there must, I think, be imported into it a requirement of reasonableness.

Now, in my submission, that is a highly incorrect approach to the question of the cultural obligation.

KIRBY J:   I can understand that argument, and you put that effectively, but we have to look at orders that might be made and at the utility of bringing this matter up, given that experience teaches that you might well find that the whole issue of reasonableness, which is a quite important issue in anti-discrimination law, is not presented by this case, nor the other question that you seek to argue, section 5, because of the findings at first instance by the Tribunal, which were really dead against your client, on factual bases and that therefore we have embarked upon important questions without a proper vehicle to do so, because then we get the cases before us and people say, well you have to go back to the beginning and look at the factual findings and they mean that the Court has really wasted its time, because it is just dealing again with whether factual findings can be disturbed on an appeal limited to a point of law.

MS TAN:   My submission is, it is a matter I have dealt with beforehand, that the Tribunal did make an error of law in the way in which it came to that factual finding, and that is what Justice Wallwork found. 

Justice Wallwork pointed to the overwhelming evidence and said, in effect, the only proper inference to be drawn from that evidence was that there was, in fact, a cultural obligation, to house the people that were in Mrs Martin’s home at the time.  The Tribunal, in the same time, made findings that the overcrowding, in fact, did result in the nuisance and that is why the Tribunal classified the particular requirement or condition as “no nuisance caused by overcrowding” and that is, in my submission, the appropriate approach.

Now the Full Court in its analysis of Justice Wallwork’s decision did not analyse the evidence of the Tribunal nor did it really give any attention to Justice Wallwork’s analysis of this evidence either.  It latched on to this issue of there having to be a limit on the cultural obligation and then, having made that finding, it did not really go into any depth in terms of analysing the findings of the Tribunal or Justice Wallwork’s approach to it.  The difficulty is that we are left with a decision which really primarily makes a finding on the basis of the fact that there has to be a limit to the cultural obligation.  Being a unanimous decision of the Full Court, my concern is that that is a major problem as far as a precedent is concerned.

In relation to the factual issues, perhaps another appropriate approach could have been that the Full Court, if it felt that Justice Wallwork had overstepped the mark in substituting his own finding, would have been to send that back to the Tribunal for actually making a finding which is not tainted by error, but instead it simply imposed its own finding in relation to the cultural obligation issue.  In my submission, Justice Wallwork does deal with the matter properly, in terms of analysing the evidence and finds that an error of law did occur in that respect.

KIRBY J:   Yes, thank you very much, Ms Tan.  Is there anything else you wish to say on behalf of your client?

MS TAN:   I believe most of the points have been dealt with adequately.

KIRBY J:   Yes, we have read the application book.  Thank you very much.

MS TAN:   Thank you.

KIRBY J:   Mr Tannin, the Court does not need your assistance at this stage.

Having regard to the findings of fact made by the Equal Opportunity Tribunal of Western Australia and the limited basis of judicial disturbance of that Tribunal’s decision, the Court is not persuaded that this matter would be a suitable vehicle to present for decision the issue of the suggested requirement of reasonableness or the other questions which the applicant has sought to argue.  However, this Court should not necessarily be taken as endorsing all of the reasoning of the Full Court of the Supreme Court of Western Australia.  Special leave is refused. 

I understand that there is an application for a special order in relation to costs.  Is that so, Ms Tan?

MS TAN:   No, your Honour, the applicant does not wish to pursue that issue.

KIRBY J:   Very well.  You ask for costs.

MR TANNIN:   We do, your Honour.

KIRBY J:   Yes.  Special leave is therefore refused, with costs.

MR TANNIN:   If your Honours please.

KIRBY J:   Ms Tan, can I compliment you on the way in which you presented your argument and answered the questions of the Court; you were of considerable assistance to us.

AT 3.36 PM THE MATTER WAS CONCLUDED