Mm & AM v State of NSW, Department of Community Services

[2002] NSWADT 256

CITATION:	MM & AM v State of NSW, Department of Community Services [2002] NSWADT 256
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS MM AM RESPONDENT State of New South Wales (Department of Community Services)
FILE NUMBER:	021027; 021028
HEARING DATES:	15/07/02
SUBMISSIONS CLOSED:	07/15/2002
DATE OF DECISION:	12/06/2002
BEFORE:	Rees N - Judicial Member; Mooney L - Member; Strickland J - Member
APPLICATION:	Disability Discrimination - Goods and Services
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Associations Incorporation Act 1987 (WA) Children (Care and Protection) Act 1987 Children (Care and Protection) Regulation 1996 Community Services (Complaints, Reviews and Monitoring) Act No 2 1993 Crown Proceedings Act 1988 Disability Discrimination Act 1992 (Cth) Equal Opportunity Act 1984 (Vic) Equal Opportunity Act 1984 (WA) Equal Opportunity Act 1995 (Vic)
CASES CITED:	IW v City of Perth (1997) 191 CLR 1 Woods v Wollongong City Council (1993) EOC Waters v Public Transport Corporation (1991) 173 CLR 349 Commissioner of Police, NSW Police Service v The Estate of Edward John Russell [2001] NSWSC 745 Commissioner of Police v The Estate of Edward John Russell [2002] NSWCA 272 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 Bropho v State of Western Australia (1990) 171 CLR 1
REPRESENTATION:	Applicant K Eastman, barrister Respondent T Anderson, barrister
ORDERS:	The complaints be listed for a further case conference on a date to be determined by the Registrar.

1 In this case the applicants, Mr MM and Ms AM, who are married, have lodged complaints of discrimination on the ground of disability against the Department of Community Services (DoCS). Ms AM has also lodged a complaint of discrimination on the ground of marital status against DoCS. It has been agreed between the parties that by virtue of the provisions of section 5 of the Crown Proceedings Act 1988 the proper respondent in these proceedings is the State of New South Wales.

2 The parties have requested the Tribunal to determine a preliminary question concerning the applicability of various parts of the Anti-Discrimination Act 1977 (the Act) to the issues in dispute in this case. It is not in dispute that in 1999 the applicants applied to become foster parents and that their application was rejected by DoCS. The applicants have claimed that the rejection of their application constituted, for both of them, unlawful discrimination on the ground of disability contrary to section 49M(1) of the Act and, in the case of Ms AM, unlawful discrimination on the ground of marital status contrary to section 47 of the Act. The preliminary question which the Tribunal has been asked to determine is whether the action taken by DoCS in relation to the application by Mr MM and Ms MM to become foster parents may be characterised as the provision of a “service” for the purposes of sections 49M(1) and 47 of the Act.

3 The parties provided the Tribunal with written submissions and presented oral argument in relation to this preliminary issue at a hearing in Sydney on 15 July 2002. Both parties were represented by counsel: the applicants by Ms Eastman and the respondent by Ms Anderson.

4 As the complaints of Mr MM and Ms AM arise out of the same, or substantially the same, circumstances or subject-matter the Tribunal has exercised its power in section 97 of the Act to conduct a single inquiry into the three complaints which have been referred to the Tribunal by the President of the Anti-Discrimination Board (the President). In accordance with the application made by Ms Eastman, which was not opposed by Ms Anderson, the Tribunal has exercised its power in section 75(2) of the Administrative Tribunal Decisions Act 1998 (the Tribunal Act) to prohibit the publication of the names of the applicants and any other information which may lead to their identification. This step was taken because details of Mr MM’s psychiatric illness are of relevance to the issues to be decided. Because of the section 75(2) order the Tribunal has decided not to refer to the names of the applicants in this document.

The preliminary issue

5 The applicants filed Points of Claim, dated 27 June 2002, and the respondent filed, on 11 July 2002, a document titled ‘Points of Defence on Preliminary Issue’. It is not in dispute between the parties that Mr MM and Ms AM are married and that Mr MM suffers from a bi-polar disorder, which falls within the definition of “disability” in section 4 of the Act. In their Points of Claim the applicants have alleged that because of Mr MM’s disability DoCS refused their application, made in mid 1999, to become foster parents. It is claimed that this refusal constituted unlawful disability discrimination against both of them in contravention of section 49M(1) of the Act, and unlawful marital status discrimination against Ms AM contrary to section 47. These sections in the Act deal with discrimination in relation to the provision of goods and services. The word “services” is defined in a non-exclusive fashion in section 4 of the Act.

6 The respondent denies having unlawfully discriminated against either or both of the applicants. It has raised the preliminary issue that its activities in relation to applications by people to become foster parents do not fall within the meaning of “services” in the Act. The applicants dispute this contention.

7 To enable the Tribunal to be in possession of some facts in order to determine this preliminary issue the parties agreed to the tender of the separate reports prepared by the President in relation to the complaints lodged with him by both applicants. The respondent maintains that it does not accept all of the allegations of fact contained in the President’s reports but agreed to the tender of those reports for the purpose of resolving the preliminary issue.

8 In paragraph 6 of the Points of Claim the applicants have alleged that “the Respondent provided services to [them] 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.” In the Points of Defence the respondent has alleged that it “did not provide a service to the Complainants within the meaning of section 4 and 49M of the Anti-Discrimination Act 1977” and further that “[t]he 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.”

9 In her written submissions, Ms Eastman, for the applicants, argued that “the definition of ‘services’ in the Act is sufficiently broad to cover all types of services including those services that may be performed pursuant to a statutory function”. Ms Eastman referred to a number of authorities in support of this proposition and, in particular, to the decision of the High Court in IW v City of Perth (1997) 191 CLR 1. The respondent also sought to rely upon statements made by various members of the High Court in IW v City of Perth in support of its contention that “as a matter of law, in approving or refusing a person’s application to be a foster carer, the Minister and Director-General do not provide a service to that person”. The respondent argued that “in exercising their relevant powers in relation to the approval of foster carers, the Minister and the Director-General provide a service to the children who may be placed in foster care and the community at large…”.

10 In order to determine the preliminary issue which has arisen in this case it is necessary to consider, first, the meaning of the term “services” in sections 49M and 47 of the Act and, secondly, to characterise the activities undertaken by the respondent when determining applications by people to become foster carers.

The meaning of ‘services’

11 Section 49M of the Act provides as follows:

(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.

Section 47, which deals with discrimination on the ground of marital status in the provision of goods and services, is expressed in similar language to section 49M(1).

12 The following definition is found in section 4 of the Act:

services includes:

(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.

The term ‘public authority’ is not defined in the Act, but section 5 provides that the Act binds the Crown. Also of relevance is section 54 which provides that it is not unlawful discrimination for a person to do any act if it was necessary for him/her to do that act in order to comply with a requirement of another statute.

13 The meaning of the word “services” in the Anti-Discrimination Act has been considered on numerous occasions over the past 25 years (see e.g. the decision of the former Equal Opportunity Tribunal in Woods v Wollongong City Council (1993) EOC 92-486 in which there is a detailed consideration of the cases prior to 1993). Cases in other jurisdictions are also of assistance for the definition of “services” in section 4 is similar to the definition employed in other equal opportunity statutes throughout Australia (see e.g. section 4 Disability Discrimination Act 1992 (Cth), section 4 Equal Opportunity Act 1995 (Vic).

14 In IW v City of Perth (1997) 191 CLR 1, the High Court considered the meaning of the word “services” in the former equal opportunity legislation of Western Australia. In the Equal Opportunity Act 1984 (WA) “services” was defined in similar terms to the definition in section 4 of the Anti-Discrimination Act. The Western Australian definition did not contain paragraph (f) of the definition in the NSW Act, and paragraph (e) was differently worded. Paragraph (e) in the former Western Australian Act was “services of the kind provided by a government, a government or public authority or a local government body”. In terms of the issue currently before this Tribunal, the slightly different wording of the definition in the former Western Australian Act does not derogate from the guidance which we may draw from the judgments in IW v City of Perth.

15 The principal question for determination by the High Court in IW v City of Perth was “whether the City of Perth unlawfully discriminated [on the ground of impairment] against an association incorporated under the Associations Incorporation Act 1987 (WA) by refusing planning approval for the use of premises for persons infected with the Human Immunodeficiency Virus (HIV)…” (per Brennan CJ and McHugh J, (1997) 191 CLR 1 at 7). In order to answer this question it was necessary for the High Court to decide whether a municipal council was providing a “service” to any persons when it determined applications for planning approval. Five members of the High Court (Dawson, Gaudron, Toohey, Gummow and Kirby JJ) concluded that the relevant activities of the City of Perth did constitute a “service” within the meaning of the Equal Opportunity Act 1984 (WA). Dawson and Gaudron JJ stated that “services” is a “word of complete generality [which] should not be given a narrow construction unless that is clearly required by definition or context” (191 CLR 1 at 23). Toohey J stated that the word should be given its “ordinary, wide meaning” and that “[t]he question whether there has been a refusal to provide a service is a question of fact” (191 CLR 1 at 27). Kirby J stated that “[t]he concept of ‘services’ is… an extremely wide one” (191 CLR 1 at 70). Gummow J made comments which are particularly pertinent to the arguments raised by the respondent in this case:

The question arises whether the circumstance that, in dealing with applications for approval, the Council, as responsible authority, exercises its statutory functions and duties under the town planning law has the consequence that the Council is not also engaged in the provision of services to applicants within the meaning of the anti-discrimination legislation. An issue of characterisation is involved. Each statute operates in aid of particular ends considered important by the legislature. There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions (191 CLR 1 at 44).

16 Two members of the High Court, Brennan CJ and McHugh J, determined that a municipal council was not providing a “service” within the meaning of the Equal Opportunity Act 1984 (WA) when it refused an application for planning approval. This conclusion appears to have been based upon a view that governmental activities which may be characterised as “legislative” or “quasi-judicial” did not fall within the concept of a “service” as that term had been defined in the Western Australian equal opportunity legislation. Brennan CJ and McHugh J stated that “[t]he term ‘services’ has a wide meaning” (191 CLR 1 at 11) and that “if the term ‘service’, read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a ‘service’ for the purpose of the Act” (191 CLR 1 at 12). Their Honours reasons for concluding that the act of the City of Perth in refusing an application for planning approval did not constitute a “service” are encapsulated in the following extract from their joint judgment:

Thus, when a council is called on as deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such ‘legislative’ acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community.

Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that may affect the public interest. In such a case, the Council may be providing a ‘service’ in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of Part IVA of the Act.

17 It seems likely that these remarks may have fuelled the approach which the respondent has taken in this case. Two points should be made: first, these statements about the limits to the reach of the concept of “services” did not command majority support in IW v City of Perth and, secondly, as discussed in paragraph 32, below, the limits proposed by Brennan CJ and McHugh J, being ‘legislative’ and ‘quasi-judicial’ acts of public authorities, are not transgressed by the circumstances of this case.

18 Ms Eastman referred the Tribunal to a number of other authorities which supported a broad interpretation of the word “services”. In view of the comprehensive manner in which this issue was dealt with by the High Court in IW v City of Perth, and the conclusion we have reached about the answer to the preliminary issue, there is no need to refer to those other cases in this decision.

Characterisation of the relevant activities of the respondent

19 As Brennan CJ and McHugh J stated in IW v City of Perth (1997) 191 CLR 1 at 16-17: “In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides”. McHugh J had earlier stated in Waters v Public Transport Corporation (1991) 173 CLR 349 at 404 that “the identification of the relevant services is a question of fact”. In order to undertake this process of characterisation it is necessary to consider the statutory scheme which permits the Minister and/or the Director-General to select persons with whom children may be fostered. This was the approach undertaken by Sully J in Commissioner of Police, NSW Police Service v The Estate of Edward John Russell [2001] NSWSC 745 which led to his conclusion that NSW police officers provided “services” within the meaning of the Anti-Discrimination Act when dealing with a person who was in police custody following arrest. Whilst this decision was appealed to the NSW Court of Appeal (see Commissioner of Police v The Estate of Edward John Russell [2002] NSWCA 272) the issue of whether the police officers in question were providing “services” was not considered in the appeal.

20 The relevant statutory scheme that governs placing children in foster care and choosing people to be foster carers is not particularly clear. The power of the Minister for Community Services to place a child in foster care is found in section 91 of the Children (Care and Protection) Act 1987. Whilst that section is headed ‘Functions of the Minister in relation to wards and protected persons’, the actual terms of the section contain both functions and powers. The relevant provisions in this case are section 91(1)(a) and (d): section 91(1)(a) is a description of a function of the Minister, whilst section 91(1)(d) is a grant of power to the Minister to carry out that function. It is of use to set out section 91(1) in full:

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.

21 One group of people who may be the subject of orders made by the Minister pursuant to section 91(1), “protected persons”, are defined in section 3 of the Children (Care and Protection) Act 1987. The term “ward” does not appear to be defined in that Act, but the definition of “protected person” includes a reference to “a child who is a ward of the Supreme Court and of whom the Minister or the Director-General has the custody or care pursuant to an order of the Supreme Court”. The Act contains no definition of a ‘foster parent’. As we understood the arguments of the parties, it was agreed that a ‘foster parent’ is the usual name given to a person with whom a ward or protected person is fostered in the exercise of the Minister’s powers in section 91(1)(d)(ii). The exercise of the Minister’s power is expressed to be subject to conditions prescribed by the regulations, and additional conditions determined by the Minister. A ‘foster parent’ must be “approved by the Minister”. The Act does not regulate the approval of a ‘foster parent’ by the Minister.

22 The Director-General of Community Services was given the power by section 12A of the Children (Care and Protection) Act 1987 to place children in his/her care with an approved person. We were told by counsel that this section has been repealed but that it was in force at the time the facts of this case arose. Whilst the term ‘foster parent’ is not used in that section, it appeared to be common ground between the parties that it was an appropriate description of a person given the care of a child by the Director-General pursuant to section 12A. That provision read:

(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.

23 The Children (Care and Protection) Regulation 1996 has been made pursuant to the power set out in section 124 of the Children (Care and Protection) Act 1987. Whilst section 91(1)(d)(ii) of the Children (Care and Protection) Act 1987 provides that a ‘foster parent’ must be “approved by the Minister”, clause 22(2) directs that the Minister may not exercise his/her power to place a child with a ‘foster parent’ unless the prospective ‘foster parent’ has been assessed for suitability by the Director-General and has completed a training course nominated by the Director-General. Clause 22(2) provides as follows:

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.

Clause 23(2) of the Regulation stipulates that a ‘foster parent’ must report various matters to the Director-General and clause 26 sets out the responsibilities of a ‘foster parent’ in relation to a child in his/her care. Division 3 of Part 4 of the Children (Care and Protection) Act 1987 and Part 7 of the Regulation deal with ‘fostering authorities’. We have not dealt with these provisions in any detail for they were not referred to by counsel and they do not appear to have any relevant impact upon the ultimate statutory power reposed in the Minister and the Director-General to choose foster parents.

24 Whilst clause 22(2) of the Regulation does not expressly state that the Director-General has the power to approve an application by a person to be a ‘foster parent’, clause 22(2) has that effect because the Minister cannot exercise his/her power under section 91(1)(d)(ii), even though it is expressly stated that a ‘foster parent’ must be approved by the Minister, unless clause 22(2) has been complied with. This interaction between a power granted by the statute, and a restriction upon the exercise of that power by the Regulation, is rather unusual, especially as the Minister clearly seems to have the power at common law, absent any express statutory power, to delegate his/her section 91(1)(d)(ii) power of approval to the Director-General or any other suitable officer of the Department (see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560).

25 Ultimately, however, these complexities in the statutory scheme governing the appointment of foster parents do not affect the characterisation of the activities undertaken by the Minister and the Director-General which are the subject of the complaints in this case. What they do affect is the identification of the person or persons who have final responsibility for the activities which have been impugned.

26 The respondent referred the Tribunal to a number of other statutory provisions which appear to be of marginal or no relevance to the process of characterisation which we must undertake. Section 89 of the Children (Care and Protection) Act 1987 provides that in the administration of Part 6 of the Act “the welfare and interests of wards and protected persons shall be given paramount consideration”. Section 91(1)(d)(ii), which contains the Minister’s power to place a child with a ‘foster parent’ is also found in Part 6. Reference was also made to provisions in the Community Services (Complaints, Reviews and Monitoring) Act No 2 1993 which, it was submitted, permit the applicants to apply to the Community Services Division of this Tribunal for a review of any decision not to approve their application to be foster parents. Section 3(2)(a) of that Act provides that in exercising functions under the Act “the paramount consideration in providing a service for a person must be the best interests of the person”. We fail to see how any right to merits review of any decision made by the Minister and/or the Director-General is relevant to the issue of characterisation which we must undertake.

Conclusions

27 In our opinion both the Minister and the Director-General do provide “services” within the meaning of 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.

28 A consideration of the legislative scheme which governs the fostering of children leads to the conclusion that the interests of the relevant children are paramount when statutory powers are exercised to provide foster placements for them. However, this observation does not ineluctably lead to the further conclusion that there are no other interests to be taken into account when those statutory powers are exercised, or that the Minister and the Director-General are free to ignore laws of general application, such as the Anti-Discrimination Act, when choosing people to be foster parents. If it was the wish of the legislature that the Minister and/or the Director-General could engage in conduct which would otherwise constitute unlawful discrimination when choosing foster parents it was open to the Parliament to include an express exception in the Anti-Discrimination Act, or if it was the wish of the executive to be free of the constraints of the Anti-Discrimination Act when choosing foster parents it was open to the Minister and/or the Director-General to make an application for an exemption under section 126 of the Act.

29 The provisions in the Anti-Discrimination Act which the respondent has allegedly breached in this case are not particularly clear. Unlike other equal opportunity legislation (see e.g. section 29 Disability Discrimination Act 1992 (Cth), section 101 Anti-Discrimination Act 1991 (Qld)), the Act does not specifically render it unlawful to discriminate in the administration of laws and government programs. Unlike other equal opportunity legislation the definition of “services” in section 4 of the Act does not contain specific reference to “services of the kind provided by a government” (see e.g. the definition of “services” in section 4 of the Disability Discrimination Act 1992 (Cth)). In this instance it is necessary to cast both the Minister and the Director-General as a “public authority” in order to cause them to fall within the express terms of the definition of “services” in section 4 of the Anti-Discrimination Act. It is important to note that the definition of “services” in the Act is a non-exclusive one because of the use of the word “includes”. As there is some lack of clarity it is appropriate to consider the intention of the legislature when seeking to give meaning to the word “services” (seee.g. Bropho v State of Western Australia (1990) 171 CLR 1) and especially when considering those activities which may fall beyond the express terms of the definition.

30 The following extract from the joint judgment of Dawson and Gaudron JJ in IW v City Of Perth (1997) 191 CLR 1 at 22-23 is significant:

In construing legislation designed to protect basic human rights and dignity, the courts “have a special responsibility to take account of and give effect to [its] purpose”. For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, including s 66K(1), should be construed as widely as their terms permit. In particular, ‘services’, a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context. [references omitted]

31 There is nothing in the definition of “services” in section 4 of the Act, or in the context in which it is used in sections 49M(1) or 47, which suggests that our approach to construction of the term should depart from that proposed by Dawson and Gaudron JJ. When the term is viewed in other contexts in which it is used in the Act our conclusion is strengthened. For instance, section 19 provides that it is unlawful for a person who provides goods and services to discriminate against a person on the ground of race by refusing to provide those goods or services. If the argument advanced by the respondent in this case were to be correct any decision by the Minister and/or Director-General to refuse to appoint people of a particular race as ‘foster parents’, because of their race, would be beyond the reach of the Anti-Discrimination Act and, therefore, quite lawful, subject to the recent comment of Spigelman CJ in Commissioner of Police v The Estate of Edward John Russell [2002] NSWCA 272 at para 75 that racial discrimination may be a tort at common law. This could not have been the intention of the legislature.

32 As we suggested in paragraph 17, above, it is possible that the limits to the concept of “services” advanced by Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1 are relied upon by the respondent in this case. Whilst those Justices supported a wide meaning of the term “services” they held that it did not extend to ‘legislative’ and ‘quasi-judicial’ acts of public authorities. In this case, however, it is not possible to cast the powers given to the Minister and the Director-General to choose people to be ‘foster parents’ as either ‘legislative’ or ‘quasi-judicial’. The relevant statutory provisions grant broad discretionary powers to the Minister and the Director-General. They are clearly not legislative in character and nor do they require the Minister and the Director-General to conduct quasi-judicial hearings when determining whether to appoint a person as a ‘foster parent’.

33 Consequently, we are of the opinion that the Minister and the Director-General (or their delegates within DoCS) do provide “services” within the meaning of sections 49M(1) and 47 of the Act when determining applications by people to become ‘foster parents’.

34 In view of the fact that we have been asked to answer this preliminary question before proceeding to conduct a full hearing we should now allow the parties to make submissions about the future conduct of this inquiry. The only formal order that need be made is that the complaints be listed for a further case conference on a date to be determined by the Registrar.