Sumanasekera and the State Of Western Australia
[2017] WASAT 43
•10 MARCH 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: SUMANASEKERA and THE STATE OF WESTERN AUSTRALIA [2017] WASAT 43
MEMBER: MS C WALLACE (SENIOR MEMBER)
HEARD: 25 JANUARY 2017
DELIVERED : 10 MARCH 2017
FILE NO/S: EOA 29 of 2016
BETWEEN: YASHAS SUMANASEKERA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Discrimination Equal opportunity Impairment Learning disability Nomination for Skilled Nominated Visa Whether nomination process is a service provided Meaning of 'service' in discrimination complaints
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 66K, s 89(1), s 90(2), Pt IVA
State Administrative Tribunal Act 2004 (WA), s 47(2)
Result:
Complaint dismissed as misconceived
Summary of Tribunal's decision:
Mr Yashas Sumanasekera, the applicant in the proceeding, claimed unlawful discrimination by the State of Western Australia, the respondent, on the ground of impairment in the nature of dyslexia in the area of provision of goods and services. The applicant identified that the alleged discrimination arose in the context of the process of the respondent nominating persons applying for a Skilled Nominated Visa, identifying whether certain criteria were met for nomination, including whether to grant an exception to certain criteria. The applicant also alleged discrimination in the respondent's establishment of the criteria required to be met by candidates in order to be eligible for nomination.
The Tribunal was asked to determine a preliminary jurisdictional question as to whether the respondent was providing a 'service' to the applicant in the relevant visa nomination context, such that s 66K of the Equal Opportunity Act 1984 (WA) applied. The Tribunal noted that public authorities, when performing public functions, can also be seen as providing services for the purpose of antidiscrimination legislation in certain contexts. However, the Tribunal found in this proceeding that although the nomination process conferred a benefit to those candidates applying for a Skilled Nominated Visa, that the respondent was not providing a service to the applicant because: the overarching intent of the process is to benefit the Australian public generally, rather than the candidates themselves; the role of the respondent can be described as quasilegislative in nature in setting the minimum criteria for eligibility; the migration system could not function without this role of the respondent and therefore the nomination process is a fundamental integer of a system over which those affected have no, or almost no, control; even if it could be said that the respondent could grant exceptions to meeting the eligibility criteria, that would not change the essential characterisation of the role of the respondent; and the process of nominating persons for the visa is an inherent governmental function.
The proceeding was therefore dismissed as misconceived and/or lacking in substance.
Category: B
Representation:
Counsel:
Applicant: Self Represented
Respondent: David Leigh
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Director General of Department of Transport v McKenzie [2016] WASCA 147
Ellis and Director General of the Department of Transport [2011] WASAT 142
Farah v Commissioner of Police of the Metropolis [1998] QB 65
Ferneley v Boxing Authority of New South Wales [2001] 191 ALR 739
IW v City of Perth [1997] HCA 30
R v Entry Clearance Officer; Ex parte Amin [1983] 2 AC 818
R v Immigration Appeal Tribunal; Ex parte Kassam [1980] 1 WLR 1037
Rainsford v State of Victoria [2007] FCA 1059; (2007) 167 FCR 1
Richards and Commissioner of Police [2010] WASAT 115
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770; (2012) 292 ALR 702
Savjani v Inland Revenue Commissioners [1981] QB 458
Secretary, Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 17 December 2015, the applicant, Mr Yashas Sumanasekera lodged a complaint with the Commissioner for Equal Opportunity (Commissioner) pursuant to s 66K of the Equal Opportunity Act 1984 (WA) (EO Act) alleging unlawful discrimination by the Department of Training and Workforce Development, the respondent, on the ground of impairment in the nature of dyslexia in the area of the provision of goods and services. The correct respondent is in fact the State of Western Australia, which will be remedied by way of order at the conclusion of these reasons.
The applicant identified to the Commissioner that the respondent's relevant services were:
a)the process of the respondent nominating persons applying for a subclass 190 or subclass 489 visa (Skilled Nominated Visa) (SNV), identifying whether persons meet the required criteria for nomination, including any considerations as to whether to grant an exception for candidates who do not meet all of the required criteria (and, in particular, the criteria requiring English language proficiency); and/or
b)establishing the criteria which candidates must satisfy in order to be eligible for nomination in Western Australia, particularly in respect of minimum standards of English language competency.
The applicant is seeking a SNV. There are various criteria which need to be satisfied in order to be eligible to apply for a SNV which includes:
a)competent English language proficiency; and
b)to be nominated by a State or Territory government agency.
In Western Australia candidates seeking nomination with respect to certain occupations, including a category referred to as Group 2 (Professionals), being the occupation in respect of which the applicant seeks nomination, must achieve a score of seven in each of the following components of the International English Language Testing System (IELTS) Test:
a)listening;
b)reading;
c)writing; and
d)speaking.
The applicant has taken the IELTS Test on a number of occasions. On prior occasions the applicant achieved a score of at least seven for all of the components of the test. However, the applicant has not been able to achieve a score of at least seven for all components of the test on any single sitting of the test. Therefore, the applicant has not yet met the eligibility criteria for a State nomination for a SNV in Western Australia.
The applicant alleges that the cause of his inability to complete the IELTS Test to the required standard for nomination is due to his dyslexia impairment. Therefore the applicant alleges that the respondent has unlawfully discriminated against him on the ground of his impairment, in the provision of services, by either failing to provide the services noted at paragraph 2, or by virtue of the manner in which the respondent has provided those services, particularly in its failure to grant an exemption to the applicant.
The Commissioner reviewed the applicant's complaint and considered all of the material lodged against the respondent and, on 3 November 2016, informed the applicant that his complaint had been dismissed under s 89(1) of the EO Act as misconceived on the basis of a finding that the respondent is not providing a service by nominating persons from a pool of candidates.
On 11 November 2016 the applicant requested the Commissioner to refer his complaint to this Tribunal in accordance with s 90(2) of the EO Act.
At a directions hearing on 12 December 2016, the Tribunal programmed the matter for a hearing on the preliminary question regarding whether services were provided to the applicant by the respondent within the meaning of the EO Act. The respondent filed written submissions on this preliminary issue with the Tribunal on 18 January 2017. The applicant did not file any written submissions on the issue. A brief hearing took place on 25 January 2017 at which the parties made oral submissions. The decision was reserved on that date.
Legal framework
The relevant provision of the EO Act pursuant to which the applicant alleges unlawful discrimination is s 66K, which provides the following:
(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's impairment
a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
b)in the terms or conditions on which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
c)in the manner in which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person.
The preliminary question for determination is whether the respondent is providing a service as contemplated by s 66K of the EO Act. If the applicant cannot establish that the respondent is providing him with a service, then his complaint fails as misconceived.
As noted previously it appears that the alleged services being provided to the applicant by the respondent are:
a)the process of nominating eligible SNV applicants, including specifically the consideration as to whether to grant an exception to the State's eligibility criteria; and/or
b)setting the State's eligibility criteria for nominations.
It is not in dispute between the parties that the respondent is performing a public function. It is also not in dispute that a public authority can simultaneously perform a public function and also provide a service. The question therefore, in the circumstances of the present case, is whether the respondent is only performing a public function or whether it is performing a public function as well as providing a service as contemplated by s 66K of the EO Act.
Meaning of 'services' in the EO Act
The definition of 'services' is set out in s 4(e) of the EO Act which provides:
Services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child's adoption, under the Adoption Act 1994), a government or public authority or a local government body[.]
In the judgment of IW v City of Perth [1997] HCA 30 (City of Perth) their Honours Brennan CJ and McHugh J at [11-12] provide a useful discussion as to the interpretation of 'services' in the context of s 66K of the EO Act:
Section 18 of the Interpretation Act 1984 (WA) requires preference to be given to the construction of a written law that would promote the purpose or object underlying that law to a construction that would not promote that purpose or object. One of the objects of the Act is:
'to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, race, religious or political conviction or impairment in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs'.
Consequently, the provisions of the Act should as far as possible be given a construction that would eliminate discrimination on the ground of impairment.
In applying s 18 of the Interpretation Act, however, it must be kept in mind that the Act, like many antidiscrimination statutes, defines discrimination and the activities which cannot be the subject of discrimination in a rigid and often highly complex and artificial manner. As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the Act. The object referred to in s 3(a) of the Act must, therefore, be understood by reference to the definitions of discrimination which occur in various parts of the Act.
The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given 'a fair, large and liberal' interpretation rather than one which is 'literal or technical'. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, 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.
The general principles of statutory construction are well known and were recently restated by the Court of Appeal in Director General of Department of Transport v McKenzie [2016] WASCA 147 at [45] [48]. In summary, whilst the statutory text must be considered in its context, it starts and ends with a construction of the text itself which must be given its natural and ordinary meaning. The term 'services' has a wide meaning. The Macquarie Dictionary Online (2015) defines it to include an act of 'helpful activity'; 'the supplying or supplier of any articles, commodities, activities, etc, required or demanded'; 'the providing of, or a provider of, a public need, such as communications, transport, etc'; 'the organised system of apparatus, appliances, employees, etc, for supplying a public need'; 'the supplying or a supplier of water, gas or the like to the public' and 'the duty or work of public servants'.
As mentioned previously, it is not in dispute that a number of public functions performed by public authorities can simultaneously be held to be services including for the purposes of antidiscrimination legislation. Some useful examples are set out below:
a)The exercise of discretion in considering whether to approve or refuse a planning application for an AIDS day-time 'dropin' centre in City of Perth;
b)Determining whether a tax deduction was available for a dependent child and providing information to tax payers to allow them to claim relief: Savjani v Inland Revenue Commissioners [1981] QB 458;
c)Registering or refusing to register a boxer: Ferneley v Boxing Authority of New South Wales [2001] 191 ALR 739; and
d) Duties of a police officer that involve assistance or protection of the public: Farah v Commissioner of Police of the Metropolis [1998] QB 65; Richards and Commissioner of Police [2010] WASAT 115.
It is also useful to consider examples where the performance of a public function was found not to simultaneously constitute the provision of a service in the context of antidiscrimination legislation. Some relevant examples of this are set out below:
a)Administration of a special voucher scheme which enables successful applicants to settle in the United Kingdom: R v Entry Clearance Officer; Ex parte Amin [1983] 2 AC 818 (Amin);
b)Exercising discretion to require applicants to provide further evidence of fitness for issuing a driver's license; Ellis and Director General of the Department of Transport [2011] WASAT 142;
c)Police officers dealing with a prisoner's application for bail: Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770; (2012) 292 ALR 702;
d)The exercise of a statutory prosecutorial discretion against laying a complaint for the filing of an indictment: Secretary, Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324; and
e)The Secretary of State giving leave to immigrants to enter and/or remain in the United Kingdom: R v Immigration Appeal Tribunal; Ex parte Kassam [1980] 1 WLR 1037.
The pivotal issue in this case in considering whether the activity undertaken by the respondent constitutes a 'service' for the purposes of s 66K of the EO Act is whether the respondent is simply performing a public duty, or whether it is performing a duty and also conferring a benefit in such a way that the activity falls within the ambit of antidiscrimination legislation. From the above analysis of the meaning of 'services' within the context of relevant case law, the following criteria appear to be relevant in this analysis:
a)Whether the activity provides a benefit or tends to the welfare or advantages a class of individuals to whom the applicant belongs. However, it is important to note that the provision of a benefit or advantage is not, in and of itself, sufficient to bring the process within the scope of Pt IVA of the EO Act: City of Perth at [15], Brennan CJ & McHugh J; and Rainsford v State of Victoria [2007] FCA 1059; (2007) 167 FCR 1 at [73], per Sundberg J, (Rainsford);
b)Public bodies when called on as a deliberative body to exercise a statutory power when executing the statutory duty may fall outside the scope of the EO Act, particularly when undertaking legislative, quasilegislative or quasijudicial actions: City of Perth at [15], Brennan CJ & McHugh J; and
c)It is not a service if the particular function or activity is a fundamental integer of a system over which those affected have no or almost no control: Rainsford at [77] per Sundberg J.
Determination
The applicant is not legally represented in the proceeding and did not file any written submissions on the preliminary jurisdictional issue. It has therefore been difficult for the Tribunal to distil the basis on which the applicant contends that the process followed by the respondent in nominating persons for a SNV constitutes the provision of a 'service' for the purposes of s 66K of the EO Act. Although the applicant gave oral submissions at the hearing, they were brief in nature and effectively constituted a mere assertion that the process itself was a 'service' by comparing the respondent to other entities providing services to the applicant including Bupa (by providing medical checks) and The Australian Computer Society (which provides evidence of a person's IT qualifications).
The respondent rejected the contentions made by the applicant and submitted that the particular process in question and the respondent's role is significantly different to the examples the applicant provided to the Tribunal at the hearing for the following reasons:
a)The respondent's role in the nominated skilled migration program (NSMP) is to nominate persons to the Federal Department of Immigration and Border Protection (DIBP) for the relevant SNV.
b)The respondent's role in the NSMP is an essential part of Australia's migration system, and Western Australia's particular role in that system, and cannot be performed by a private person;
c)The respondent does not, strictly speaking, provide a benefit upon applicants because nomination does not automatically lead to the applicant being granted a visa because that power ultimately lies with the DIBP;
d)Similarly to the Amin case, determining whether an immigrant is to be granted access to a country, or nominated for access, is a component part of the Australian government's migration. It would be artificial to describe the exercise of control over borders as a service to 'wouldbe immigrants';
e)The respondent is not a servant of the applicant in its performance of its public functions;
f)Whether the respondent may exercise discretion to allow for exceptions to the relevant minimum criteria does not alter its role in the NSMP into one which constitutes the provision of a service. In addition, it is not a standard feature of the nominating process for the respondent to consider a request for exceptions to the minimum eligibility requirements; and
g)The nomination process remains an inherent governmental function that is an innate part of the respondent's authorities and duties.
To the extent that the applicant is contending that the setting of minimum English competency standard constitutes the provision of a 'service' by the respondent, the respondent refutes this on the following basis:
a)The setting of the minimum English competency standards for nomination is not providing a benefit to the applicant, nor is it a helpful activity or advantage to him;
b)The setting of the minimum eligibility criteria is an inherently governmental function underpinned by the Australian government's interest and duty to control migration and the State's interest in attracting immigrants likely to assist in developing the economic growth of the State. It is also a function which cannot be performed by a private citizen; and
c)The setting of the minimum English competency standards is not something provided to the applicant or a group of persons which include the applicant. It is a quasilegislative act in that it applies a standard that affects all persons who may apply for a SNV.
In the Tribunal's view, the setting of minimum standards for English competency does not constitute the provision of a 'service' for the purposes of s 66K of the EO Act, because it does not confer a benefit on a particular class of persons to which the applicant belongs, but rather confers a benefit to the public at large. It cannot be seen as a helpful activity being provided to the applicant. Rather, it is a screening process.
However, the process of the respondent nominating persons applying for a SNV deserves closer consideration. Although the respondent contends that its role in the NSMP does not confer any benefit upon applicants because the nomination itself does not automatically lead to the granting of a visa, in the Tribunal's view, it cannot be said that there is a complete absence of benefit to applicants seeking nomination. It is clear that without the nomination, applicants are not able to obtain the visa, that is, it is an essential part of that process. The nomination is seen as beneficial to the applicant in this proceeding and no doubt to others seeking a SNV. It does confer a benefit to those seeking a SNV.
However, as the case law clearly sets out, the conferral of a benefit or advantage in and of itself does not mean that a public function automatically constitutes the provision of a 'service' for the purposes of antidiscrimination legislation (City of Perth). When one looks at the nature and intent of the respondent's role in the NSMP its essential features, in this Tribunal's view, distinguish it from those activities which are intended to be caught by the provisions of the EO Act. Those essential features include the following:
a)Although there can be seen to be a benefit to applicants in the nomination process, the overarching intent is not to benefit any particular person, but rather to benefit Australia and particular States and Territories in the control of migration. The role of the respondent in this regard is not directed to benefitting those applying for nomination, albeit they do receive a benefit if so nominated. The benefit to the applicant is really a biproduct of the process itself rather than its focus;
b)The role performed by the respondent can be categorised as quasilegislative in nature: City of Perth at [15], Brennan CJ & McHugh J;
c)The migration system could not function without the role performed by the respondent and thus, it would be an artificial use of the word 'service' to apply it to a 'fundamental integer of a system over which those affected have no, or almost no, control': Rainsford;
d)It is not in contention that the respondent is not a servant of the applicant;
e)Whether a discretion exists to grant an exception to the eligibility criteria, which is unclear, that does not in and of itself change the characterisation of the role of the respondent; and
f)Essentially the process of nominating persons for SNVs is an inherent governmental function.
For the reasons set out above, the Tribunal therefore finds that no service has been provided by the respondent to the applicant such that he can make a complaint under s 66K of the EO Act. The complaint, therefore, should be dismissed as misconceived and/or lacking in substance pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).
Orders
1.The named respondent in the proceeding is amended to the State of Western Australia.
2.The application is dismissed as misconceived and/or lacking in substance pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, SENIOR MEMBER
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