Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport (NSW) (No 2); Bravo Nuevo v Minister for Transport (NSW) (No 2); Martinez Neira v Minister for..

[2006] NSWADT 260

CITATION:	Sydney University Postgraduate Representative Assn v Minister for Transport & ors (No 2); Nuevo v Minister for Transport & ors (No 2); Neira v Minister for Transport & ors (No 2) [2006] NSWADT 260
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sydney University Postgraduate Representative Association (SUPRA) FIRST RESPONDENT Minister for Transport Services SECOND RESPONDENT Director General, Ministry of Transport THIRD RESPONDENT State Transit Authority FOURTH RESPONDENT State Rail Authority APPLICANT Arturo Bravo Nuevo FIRST RESPONDENT Minister for Transport Services SECOND RESPONDENT Director General, Ministry of Transport THIRD RESPONDENT State Transit Authority FOURTH RESPONDENT State Rail Authority APPLICANT Robert Martinez Neira FIRST RESPONDENT Minister for Transport Services SECOND RESPONDENT Director General, Ministry of Transport THIRD RESPONDENT State Transit Authority FOURTH RESPONDENT State Rail Authority
FILE NUMBER:	041012, 041013, 041014
HEARING DATES:	22/06/2006
SUBMISSIONS CLOSED:	07/13/2006
DATE OF DECISION:	09/06/2006
BEFORE:	Rees N - Judicial Member; Antonios Z - Non Judicial Member; Mooney L - Non Judicial Member
CATCHWORDS:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Remedies
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 Civil Procedure Act 2005 Equal Opportunity Act 1984 (Vic) Human Rights and Equal Opportunity Commission Act 1986 (Cth) Legal Profession Act 2004 State Administrative Tribunal Act 2004 (WA) Transport Administration Act 1988 Victorian Civil and Administrative Tribunal Act 1998 (Vic)
CASES CITED:	Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 Amery v State of NSW [2004] NSWCA 404 Commissioner of Police, NSW Police Service v Estate of Russell (2002) 55 NSWLR 232 Commissioner of Police v Mooney (No 3) [2004] NSWADTAP 22 Hungerfords v Walker (1989) 171 CLR 125 Johnson v Commissioner of Police [2004] NSWADT 198 Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140 SUPRA v Minister for Transport Services [2006] NSWADT 83 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANTS L Goodchild, barrister RESPONDENTS T Anderson, barrister
ORDERS:	SUPRA v Minister for Transport Services and ors (file no 041012); 1. The respondents must pay to the represented person, Mr Haoyu Wang, damages of $483 (being economic loss of $389 and interest of $94) within 28 days of the date of this order.; 2. When exercising his powers under s 88(1) of the Transport Administration Act 1988 to determine eligibility for concessional travel on public transport services the first respondent must not discriminate against applicants for concessional travel entitlements which are available to tertiary students on the ground of their nationality.; 3. Order No 2 comes into effect three months after the date of these orders.; 4. The respondents must pay the applicant’s costs of these proceedings as agreed or as assessed by a costs assessor pursuant to the Legal Profession Act 2004.; 5. The parties have liberty to apply generally on two days’ notice to the other parties.; Bravo Nuevo v Minister for Transport Services & ors (file no 041013); 1. The respondents must pay to the applicant damages of $2254 (being economic loss of $1832 and interest of $422) within 28 days of the date of this order.; 2. When exercising his powers under s 88(1) of the Transport Administration Act 1988 to determine eligibility for concessional travel on public transport services the first respondent must not discriminate against applicants for concessional travel entitlements which are available to tertiary students on the ground of their nationality.; 3. Order No 2 comes into effect three months after the date of these orders.; 4. The respondents must pay the applicant’s costs of these proceedings as agreed or as assessed by a costs assessor pursuant to the Legal Profession Act 2004.; 5. The parties have liberty to apply generally on two days’ notice to the other parties.; Martinez Neira v Minister for Transport Services & ors (file no 041014); 1. The respondents must pay to the applicant damages of $899 (being economic loss of $836 and interest of 463) within 28 days of the date of this order.; 2. When exercising his powers under s 88(1) of the Transport Administration Act 1988 to determine eligibility for concessional travel on public transport services the first respondent must not discriminate against applicants for concessional travel entitlements which are available to tertiary students on the ground of their nationality.; 3. Order No 2 comes into effect three months after the date of these orders.; 4. The respondents must pay the applicant’s costs of these proceedings as agreed or as assessed by a costs assessor pursuant to the Legal Profession Act 2004.; 5. The parties have liberty to apply generally on two days’ notice to the other parties.

Introduction

1 These three complaints, which involve similar claims, concern the NSW Government’s longstanding practice of not permitting full-fee paying overseas university students to have concessional travel on public transport services. In a decision which was published on 23 March 2006 the Tribunal found all three complaints of discrimination on the ground of race against the same four respondents to be substantiated because the practice in question constituted discrimination on the ground of nationality in the provision of a service (SUPRA v Minister for Transport Services [2006] NSWADT 83).

2 At the request of counsel for the parties the issue of the respondents’ liability for conduct which was alleged to contravene the Anti-Discrimination Act 1977 (the Act) was determined prior to the Tribunal receiving evidence and submissions about remedies. This document deals with the remedies claimed by the three applicants. While the first of the three complaints before the Tribunal was a complaint by a representative body (Sydney University Postgraduate Association (SUPRA)) on behalf of a named person, Mr Haoyu Wang, rather than a complaint lodged by Mr Wang himself, when the collective expression “the applicants” is used in this document it is intended to refer to Mr Wang and the other two people who lodged individual complaints, Mr Bravo Nuevo and Mr Martinez Neira, unless the context indicates otherwise.

3 In accordance with directions made by the Tribunal the applicants filed a document in which they set out the remedies which they sought and they also filed written submissions in support of their claims. The respondents filed a document in which they indicated their opposition to the remedies sought by the applicants. The respondents’ document was also accompanied by written submissions. No additional evidence was presented to the Tribunal for the parties were content to rely upon the factual material which had been presented at the hearing on the issue of liability.

4 Oral argument was heard on 22 June 2006. The parties were represented by counsel. Ms Goodchild appeared for all of the applicants and Ms Anderson again appeared for all of the respondents.

5 In the course of argument it became apparent that the parties had directed some of their submissions to provisions in the Act which did not govern these complaints because of a complex transitional provision which was included in the Act by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004. The operation of that transitional provision is dealt with in paragraph [12], below.

6 As a consequence, the parties were granted leave to file further written submissions in which they directed their attention to a section of the Act which has been repealed but which governed the Tribunal’s remedial powers in this case – the former s 113.

The applicants’ claims

7 The applicants’ claims for remedies may be conveniently dealt with under three headings: (1) damages, (2) injunctive-style orders, and (3) costs. The respondents did not oppose the applicants’ claims for damages but they did oppose the applicants’ claims for an award of interest on the agreed sums for damages. The respondents opposed the applicants’ claims for injunctive-style orders and costs.

8 The applicants claimed damages for economic loss. As we understood those claims, the alleged loss was the difference between the full fares paid by the applicants for public transport services during the period of time covered by the complaints (26 January 2002 until 26 July 2002) and the fares they would have paid had they been entitled to concession fares. These claims were not opposed by the respondents. The applicants also claimed interest on these sums of money. The claims for interest were opposed but the reasons for that opposition were not made clear. The respondents rightly conceded that the Tribunal’s power to order damages to compensate the applicants for “loss” included a power to order interest on money lost as a result of unlawful discrimination. The applicants did not make any claims for damages for non-economic loss.

9 The applicants originally sought orders in the nature of declarations about the unlawful character of the respondents’ conduct and “an order that the respondents grant travel concession passes to full-fee paying overseas students who meet the other conditions for the grant of such travel concession passes”. In the course of the hearing on 22 June 2006 counsel for the applicants conceded that the Tribunal did not have the power to make an order in the nature of a declaration. While the terms of the injunctive-style order sought by the applicants changed over time, the respondents were given reasonable notice of the terms of the order that was ultimately sought by the applicants. The respondents opposed all of the applicants’ claims for injunctive-style orders on the grounds that the Tribunal did not have the power to make the orders sought and, in the alternative, that even if the power to make the orders sought did exist it would be futile to make these orders because the law was about to change to render lawful that which the Tribunal had found to be unlawful.

10 The applicants also sought orders for their legal costs. The respondents opposed any costs orders.

The law

11 The provisions in the Anti-Discrimination Act which govern the remedies which may be awarded to the applicants in this case are no longer in force, except in relation those cases which were part heard before the Tribunal when the Act was amended in May 2005. The applicants’ complaints were lodged with the President of the Anti-Discrimination Board on 26 July 2002. The President referred all three complaints to the Tribunal on 22 January 2004. After the complaints were referred to the Tribunal substantial amendments were made to the Anti-Discrimination Act by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (the 2004 Amendment Act) which came into effect on 2 May 2005. Prior to the commencement of the provisions in the 2004 Amendment Act the Tribunal’s remedial powers were set out in s 113 of the Act. The 2004 Amendment Act repealed the former s 113 and the Tribunal’s remedial powers are now found in s 108. There are some differences in the wording between the Tribunal’s current (s 108) and former remedial power (s 113 prior to 2 May 2005).

12 Provision was made in the 2004 Amendment Act for the cases which were part heard before the Tribunal at the date of the commencement of the amendments to remain governed by the remedial powers in the former s 113 of the Act. This was clearly done as a matter of fairness. Clause 15 of Schedule 1 to the Act provides as follows:

Section 113, as in force immediately before its repeal by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 , continues to apply to proceedings before the Tribunal relating to a complaint that were not finally determined by the Tribunal before the repeal of that section.

13 The former s 113 of the Act relevantly provided as follows:

(1) After holding an inquiry, the Tribunal may:

(a) dismiss the complaint the subject of that inquiry, or

(b) find the complaint substantiated and do any one or more of the following:

(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(iiia) in respect of a vilification complaint…

(iiib)…

(iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or

(v) decline to take any further action in the matter.

(2) The power of the Tribunal to award damages to a complainant shall, in the case of a complaint lodged by a representative body, be taken to be a power to award damages to the person or persons on behalf of whom the complaint is lodged and not to include a power to award damages to the representative body.

(3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.

(4)…

14 The former s 113(1)(b)(i) of the Act clearly permits the Tribunal to order a respondent to pay compensatory damages to an applicant. The Tribunal’s power to make awards of damages was considered at some length by an Appeal Panel in Commissioner ofPolice v Mooney (No 3) [2004] NSWADTAP 22. It has been previously held in this Tribunal (Lavery v Commissioner NSW Fire Brigades (No 2) [2003] NSWADT 140; Johnson v Commissioner of Police [2004] NSWADT 198) and in the Court of Appeal that the former s 113(1)(b)(i) also empowers the Tribunal to order that interest be paid by the respondent on money lost by the applicant as a result of the respondent’s unlawful act or conduct. Ms Anderson did not dispute this proposition which ultimately flows from the reasoning of the High Court in Hungerfords v Walker (1989) 171 CLR 125. In Amery v State of NSW [2004] NSWCA 404, Beazley JA stated (at [154]), when commenting on a claim made under s 113(1)(b)(i) of the Act for interest on underpayment of salary, that “the appellants are entitled to interest by way of compensation for the loss of the use of the money that ought to have been paid to them by way of salary but for the discriminatory condition”.

15 The power to order interest under the former s 113(1)(b)(i) (and now under the current s 108(2)(a)) as part of the applicant’s compensable “loss” should be distinguished from the form of interest now dealt with in s 112(1) of the Act. That sub-section provides as follows:

Interest accrues on an amount of damages ordered to be paid by the Tribunal from the date on which the order takes effect until payment.

16 This provision, which causes interest to accrue prospectively from the date upon which the Tribunal makes an order that the respondent pay damages to the applicant, is clearly designed to encourage respondents to swiftly comply with orders for the payment of damages and to compensate the applicant when there is delay. Section 112(1) is similar to the provisions in the legislation governing interest payments on orders for damages made by the courts, now referred to as ‘interest after judgment’ (see s 101 Civil Procedure Act 2005).

17 Since the commencement of the 2004 Amendment Act the Tribunal has also had an express statutory power to order interest of the type referred to by Beazley JA in Amery v State of NSW [2004] NSWCA 404 at [154] and by the Tribunal in the cases previously mentioned. This power is similar to that granted to courts by s 100 of the Civil Procedure Act 2005 to order interest up to judgment in proceedings for the recovery of money. Section 112(2) of the Anti-Discrimination Act now provides as follows:

Despite subsection (1), the Tribunal may order that interest accrues on an amount of damages ordered to be paid by it from a date that is earlier than the date on which its order is made.

18 In Amery Beazley JA held that the Tribunal had an implied power to order pre-judgment interest because of its power to order the respondent to pay damages to compensate an applicant for his or her “loss”. The 2004 Amendment Act has obviated the need to rely upon an implied power in such circumstances because s 112(2) of the Act now gives the Tribunal an express power to order pre-judgment interest. By virtue of Clause 16 of Schedule 1 to the Act the new s 112 does not apply to these proceedings so it will be necessary to rely upon the implied power if interest is to be awarded on any sums of money recovered by the applicants.

19 In this case the applicants originally sought orders in the nature of declarations. A declaration is an order of a court which contains a statement of the legal rights and obligations of the parties to a dispute. Whilst a declaration does not compel anybody to do anything, a declaration sometimes resolves a dispute without the need for any other orders because the parties are content to end their differences, and perhaps alter their conduct, after a determination by a court or tribunal about the lawfulness of that conduct. It is apparent in this case that a primary goal of the applicants was to obtain a ruling about the lawfulness of the practice of not permitting full-fee paying overseas university students to enjoy the same rights to concessional travel on public transport as other university students. Despite our findings that the complaints were substantiated, we cannot make a declaratory ruling in the terms sought by the applicants because none of the provisions in the former s 113 of the Act (or those in the current Act) permits the Tribunal to make an order in the nature of a declaration.

20 This is a deficiency which merits legislative consideration. In its report published in 1999 the NSW Law Reform Commission recommended that the Tribunal be given the power to make declarations (Review of the Anti-Discrimination Act 1977 (NSW) Vol 2 at pp 772-3). The Federal Court and the Federal Magistrates Court have the power to make declarations when dealing with complaints under the four Commonwealth anti-discrimination statutes. Section 46PO(4)(a) of the Human Rights and Equal Opportunity Act 1986 (Cth) empowers those courts to make “an order declaring that the respondent has committed unlawful discrimination”. Similarly placed tribunals in Victoria and Western Australia have been given the power by their governing legislation to make declarations in any proceedings which come before those tribunals (see s 124 Victorian Civil and Administrative Tribunal Act 1998 (Vic); s 91 State Administrative Tribunal Act 2004 (WA)).

21 If the Tribunal had had the power to make an order in the nature of a declaration this may have been the most effective means of dealing with the applicants’ claims for a remedy which expressly dealt with the unlawful nature of the practice of denying concessional fares to full-fee paying overseas students. As all of the respondents are public officials or public agencies there may have been no need to contemplate invoking the Tribunal’s power to make an order in the nature of an injunction because the respondents could have been reasonably expected to have modified their conduct in compliance with any declaration made by the Tribunal which was not challenged and set aside on appeal, or overtaken by changes to the law.

22 The Tribunal has been given the power to make injunctive-style orders by sub-paragraphs (ii) and (iii) of s 113(1)(b) of the Act. There have been very few cases in which these powers have been examined and used. Section 113(1)(b)(ii) of the Act gives the Tribunal the power to “make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations”. Section 108(2)(b) of the current Act contains precisely the same wording. This is clearly a broad ranging power to order the cessation of conduct which the Tribunal has found to be unlawful. There is nothing in the wording of this power which suggests that the only people who may benefit from an order enjoining a respondent from continuing to engage in conduct which contravenes the Act may be those people who lodged the complaints. It would be strange if this remedial power could not be used to make an order of general application which prevented a hypothetical employer from continuing to advertise that it would not employ women or members of a particular race. People who had not lodged complaints under the Act would benefit from an order made by the Tribunal directing the employer to cease its unlawful conduct. According to the respondents generally worded orders of this nature are beyond power.

23 The respondents did not cite any authority in support of their submission that “any claim for injunctive relief is beyond power in so far as it seeks to extend such relief to persons other than the applicants”. Lee J made comments about the extent of the power in s 113(1)(b)(ii) of the Act in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47. In that case Lee J dismissed an appeal from a decision of the former Equal Opportunity Tribunal in which the respondent employer was found to have discriminated against the complainant on the ground of her sex by requiring her to retire at the age of sex 60 when men employed by the same company were not required to retire until they had reached the age of 65. Much of the appeal was concerned with a challenge to the manner in which the Tribunal had calculated the complainant’s award of damages. In the course of dealing with this issue Lee J expressed the view that “there are sound reasons for treating an action under the Act as an action in tort” (5 NSWLR 47 at 65). This view that a cause of action under the Act is a tort no longer attracts appellate court support (see Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at 245-6, per Spigelman CJ).

24 In Anstee the Equal Opportunity Tribunal made an order pursuant to s 113(1)(b)(ii) of the Act enjoining the respondent from continuing to apply its discriminatory policy on retirement. After noting that the order was not the subject of argument during the appeal, Lee J stated:

As the defendant [Ms Anstee] in the present case was no longer in the employ of the plaintiff [Allders International], a question arises as to whether an order in those general terms was appropriate or could have any effect. Such an order could in no way confer rights on any person other than the defendant, who made the complaint under the Act, nor could the plaintiff suffer any penalty under s 116 by reason only of it thereafter retiring some other employee in reliance on its policy. That employee would need to make a complaint under the Act in respect of that discrimination and the Tribunal would need to deal with the complaint. Section 123(1) expressly provides that a contravention of the Act attracts no sanction or consequence, whether criminal or civil, except to the extent expressly provided by this Act, and, except in the case of representative complaints (s 103) the Act nowhere gives to the Tribunal the power, by one decision, to affect rights between other than the parties before it (s 100) or to control discrimination generally irrespective of complaints from affected persons.

25 While Lee J questioned whether the order in question was “appropriate or could have any effect”, he did not determine that it was beyond power. Lee J merely concluded that the order could not confer rights on any person who was a stranger to the litigation. In view of the fact Lee J’s comments were made in passing and without the benefit of argument, and bearing in mind that the characterisation of causes of action under the Anti-Discrimination Act has changed substantially since these comments were made in 1986, we do not consider them to be binding. It is apparent that Lee J’s characterisation of a cause of action under the Act as one in tort clearly influenced his views about the personal nature of any injunctive style order made by the Tribunal. It is also noteworthy that those parts of the Act which deal with enforcement of orders made by the Tribunal have changed substantially since the decision in Anstee. The current enforcement provisions reinforce the view that a cause of action under the Act differs markedly from a cause of action in tort.

26 Section 111 of the Act renders it an offence, punishable by a fine, to fail to comply with an injunctive style order made by the Tribunal. Presumably both a litigant who has an interest in the enforcement of the Tribunal’s orders and the Director of Public Prosecutions has standing to commence a prosecution under s 111. Section 113 of the Act now permits the President of the ADB to take action to enforce orders of the Tribunal. Both s 111 and s 113 are evidence of a legislative intention that some if not all proceedings under the Act transcend the private enforcement of legal rights because there is a public interest in people complying with their legal obligations under the Act not to discriminate against people on grounds such as race and sex. These enforcement mechanisms under the Act have changed substantially since Anstee was decided in 1986.

27 Our conclusion about the breadth of the power in s 113(1)(b)(ii) is strengthened when the comments made by Lee J in Anstee are contrasted with views expressed by various members of the High Court five years later in Waters v Public Transport Corporation (1991) 173 CLR 349. In that case the Victorian Equal Opportunity Board found that a proposal to change the way in which public transport services were operated in Victoria unlawfully discriminated against the complainants on the ground of impairment. All nine complainants were people with a disability. The Victorian Board had the power under the anti-discrimination legislation then in force to order a respondent “to refrain from committing any further act of discrimination against the complainant” (s 46(2)(a) Equal Opportunity Act 1984 (Vic)). Relying upon this power the Board made an order which directed the Public Transport Corporation to refrain from implementing a “driver-only” tram system. The effect of this order was that trams would remain staffed by a conductor as well as a driver. That order was of clear benefit to many people, other than the nine complainants, who were strangers to the litigation and who were assisted by the presence of a conductor on a tram.

28 This case went on appeal to the High Court after the Victorian Supreme Court set aside the decision of the Board. The appeal to the High Court was successful but the orders of the Board were not reinstated as the substantive matter in the case, the question of whether the respondent’s conduct amounted to unlawful discrimination, was remitted back to the Board for further consideration in the light of statements made by the Board about the operation of the relevant provisions in the Victorian Act. The High Court had an opportunity to comment upon the Victorian Board’s injunctive-style order because the respondent challenged the validity of the order that it refrain from implementing a “driver-only” tram system in its cross-appeal. Six of the seven High Court justices rejected the challenge to the Board’s broadly phrased order even though its statutory power was limited to making orders that the respondent “refrain from committing any further act of discrimination against the complainant”. The seventh justice, McHugh J, found it unnecessary to consider the issue. Despite the strenuous efforts by the respondents in this case to distinguish the circumstances that prevailed in Waters from the issues before us, the fact remains that every High Court justice who considered the issue in Waters approved of the use of an injunctive power in a way which benefited people who were not parties to the litigation.

29 The policy of the Act does not support the notion that orders may only be made under s 113(1)(b)(ii) for the benefit of the actual complainants and that the Tribunal would be acting beyond power were it to make an order which was likely to benefit a much larger group of people. The long title to the 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”. When viewed as a whole the Act has policy objectives concerned with social cohesion and the inclusiveness of individuals in numerous aspects of public life. Consequently, there are public as well as private benefits which flow from widespread respect for the rights granted by the Act and compliance with its obligations. There are judicial statements which support the view that the policy of the Act is not limited to providing relief to individuals whose rights have been transgressed. When discussing the applicability of general rules of law concerning vicarious liability to proceedings under the Act in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at 247, Spigelman CJ, rejected the notion that “loss distribution” was a purpose of the Anti-Discrimination Act. The Chief Justice suggested that: “Denunciation, punishment and deterrence appear to be primary considerations”. The ends of “denunciation, punishment and deterrence” are clearly promoted by reading s 113(1)(b)(ii) in a way which permits orders that unlawful conduct should cease even when those orders benefit people other than those who lodged the complaints which were determined by the Tribunal.

30 The power in sub-paragraph (ii) of s 113(1)(b) should be contrasted with the power in sub-paragraph (iii) which permits the Tribunal to “order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant”. Section 108(2)(c) of the current Act contains precisely the same wording. This is a broad ranging power to make an order for the benefit of the person who lodged the complaint of unlawful discrimination. The language used in s 113(1)(b)(iii) makes it clear that this power, like the power in s 113(1)(b)(i) to award damages, may not be used to make an order for the benefit of any person other than “the complainant” (now referred to in this Tribunal as “the applicant” in order to fit in with the terminology used in the Tribunal’s governing legislation, the Administrative Decisions Tribunal Act 1997).

31 Section 108(3) of the current Act contains a provision which was not included in the former s 113. It states:

An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.

32 The respondents rely upon this power in s 108(3) of the Act in support of their argument that the power in s 113(1)(b)(ii) cannot be used to make an order which benefits anyone other than the people who lodged the complaints before the Tribunal. We are not persuaded by this argument. Section 108(3) clearly gives the Tribunal a power which it did not have prior to the commencement of the 2004 Amendment Act. That new power is not needed, however, for the Tribunal to make an order pursuant to s 113(1)(b)(ii) of the former Act (or s 108(2)(b) of the current Act) enjoining the respondent from continuing or repeating conduct rendered unlawful by the Act when the order by its nature will benefit people other than the actual complainants. For the reasons given in paragraphs [22] to [30], when the former s 113(1)(b)(ii) is interpreted both literally and in the light of the overall legislative policy there is no need to restrict its operation in the way suggested by the respondents. While the effect of the new s 108(3) awaits determination, it is strongly arguable that this provision gives the Tribunal the power to award damages to people other than those who lodged complaints, or to use the injunctive style power in s 108(2)(c) of the Act (formerly s 113(1)(b)(iii)) to make an order for the benefit of someone other than the complainant. Without s 108(3) orders of this nature could not be made.

33 The question of costs is governed by s 110 of the Act which provides as follows:

(1) Each party to an inquiry is to pay his or her own costs, except as provided by this section.

(2) If the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.

34 While s 110(1) clearly creates a presumption in favour of the parties paying their own costs, s 110(2) gives the Tribunal a broad and unfettered power to order costs when in the opinion of the Tribunal there are circumstances that justify a costs order.

Conclusions

35 The applicants’ claims for damages for economic loss were not opposed by the respondents. The parties reached agreement concerning the sums of money which the three applicants had lost as a result of not being able to obtain concessional fares when they travelled on public transport during their time as university students. Consequently, we will make orders for the payment of the agreed sums which were:

(a) Mr Haoyu Wang - $389. Even though Mr Wang was not a complainant – he was the person represented by the Sydney University Postgraduate Representative Association (SUPRA) in a complaint lodged by a representative body – it is possible for us to make an order that damages be paid to Mr Wang (see the former s 113(2) of the Act).

(b) Mr Roberto Martinez-Neira – $836.

(c) Mr Arturo Bravo Nuevo - $1,832.

36 The respondents have rightly conceded that the Tribunal has the power to order that interest be paid on these sums. They opposed orders for interest, however, on the basis that it would be inappropriate to make such orders because of the precedent it would set in discrimination proceedings and because the applicants were responsible for delays in the case. Neither of these arguments is convincing. The first argument flies in the face of the fact that the NSW Parliament changed the law in 2004 to give the Tribunal an express power to order interest when in the past it was necessary to rely on an implied power. It could hardly be said in these circumstances that Parliament did not wish interest to be awarded in discrimination proceedings when it was appropriate to do so. The applicants have lost the use of the money which they paid when travelling on public transport without the concessions to which they were entitled. There is no material before the Tribunal which would permit us to conclude that the applicants have been responsible for any delay in these proceedings. An award of interest is appropriate in the circumstances of this case.

37 While we have some difficulties with the manner in which the applicants have actually calculated their interest entitlements, the sums of money involved are so relatively minor that no useful purpose is served by requiring further calculations before making an order, or by making an order of a general nature for the payment of interest which will ultimately require the solicitors for the parties to undertake fresh calculations. We will make orders for the payment of the following sums by way of interest:

(a) Mr Haoyu Wang - $94

(b) Mr Roberto Martinez-Neira - $63.

(c) Mr Arturo Bravo Nuevo - $422.

38 As we indicated in paragraph [9] above, the applicants originally sought orders in the nature of declarations about the unlawful character of the respondents’ conduct and “an order that the respondents grant travel concession passes to full fee paying overseas students who meet the other conditions for the grant of such travel concession passes”. As we understood her submissions, Ms Goodchild conceded that the Tribunal did not have the power to make an order in the nature of a declaration and she amended the terms of the injunctive-style order sought by the applicants to be an order that the first respondent, the Minister for Transport Services, not make distinctions based on nationality when granting travel concessions to university students. The power to make this order was said to reside in the former s 113(1)(b)(ii) of the Act.

39 The respondents opposed the making of the injunctive-style order sought by the applicants for two reasons. First, the respondents submitted that the Tribunal did not have the power to make any injunctive style orders which would benefit people other than the three applicants in this case. It was common ground that the three applicants were no longer university students in NSW and, consequently, could not personally benefit from any order directed to the respondents to refrain from continuing or repeating conduct rendered unlawful by the Act. Secondly, the respondents submitted that even if the Tribunal had the power to make the order sought it would be pointless to do so because the NSW Government had indicated its intention to amend the law in order to render lawful the practice which the Tribunal has found to be unlawful.

40 For the reasons given above we reject the respondents’ submission that the former s 113(1)(b)(ii) of the Act does not permit the Tribunal to make an order preventing the continuation of the conduct that has found to be unlawful in this case even though an order of this nature may benefit people other than the applicants and even though the applicants are not in a position to gain any economic benefit from such an order.

41 Hansard reveals that the Transport Administration Amendment (Travel Concessions) Bill 2006 was introduced into the Legislative Assembly on 6 June 2006 and passed the following day. The shorthand effect of the Bill is to amend the Transport Administration Act1988 to permit the regulations made pursuant to that Act to provide that persons of a class prescribed by the regulations are not entitled to concessional travel on public transport. Until regulations of this nature are made there is a transitional provision which amends the Transport Administration Act1988 by declaring that full-fee paying overseas students are not entitled to be issued with concessional travel passes of the kind available to tertiary students. While the Bill has not yet been considered by the Legislative Council, Ms Anderson drew our attention to the fact that leaders of the opposition parties in the Legislative Assembly indicated in Parliament that the Bill would not be opposed.

42 The Tribunal must apply the law that governs a case at the time that case is heard. The entire legal system could grind to a halt if courts and tribunals delayed making orders in proceedings because the law may change. If the law does change, and that change is said to affect the operation of any orders made by the Tribunal, it is open to the respondents to apply to the Tribunal to amend or set aside any orders which no longer represent the current state of the law.

43 In this case the applicants are entitled to an order that the first respondent cease exercising his powers under s 88(1) of the Transport Administration Act in a way which discriminates against people on the ground of their nationality. We repeat our earlier statement that we believe that an order of this nature would be unnecessary if we had the power to make an order in the nature of a declaration. The applicants are not entitled to an order that they, or any other full-fee paying overseas university students, should be issued with travel concession passes. The applicants are entitled to an order that the Minister must not discriminate against applicants for concessional travel entitlements which are available to tertiary students on the ground of their nationality when exercising his powers under s 88(1) of the Transport Administration Act. We propose to make an order of this nature. This order will not come into effect for a period of three months because time will be needed to make administrative changes, or to change the law. Because the Minister plays the pivotal role in determining eligibility for travel concessions no useful purpose is served by making orders against any of the other respondents. In view of the difficulties which often accompany compliance with orders of this nature we propose to make a further order granting the parties liberty to apply on two days’ notice to the opposing the parties.

44 The applicants have sought orders for costs which have been opposed by the respondents. In the circumstances of this case we have concluded that there are a number of reasons why the applicants are entitled to their costs. First, the applicants could not have conducted this case without legal assistance. Their claims have been strongly contested by well resourced respondents over a lengthy period of time. Despite that opposition the applicants have succeeded in their claims. Other people who seek to assert their rights under the Anti-Discrimination Act against well resourced respondents are likely to be discouraged from pursuing their claims if they need lawyers to do so and if there is no recompense for those legal services. Secondly, while the applicants could not have conducted this case without legal assistance, the legal strength of those claims should have been apparent to the respondents. The fact the definition of “race” in s 4 of the Act contained the term “nationality” must have placed the respondents on notice that the practice in question was of dubious legality. The fact that the circumstances surrounding the exercise of the Minister’s power in this case so closely resembled those in Waters v Public Transport Corporation (1991) 173 CLR 349 must have put the respondents on notice that the exercise of a discretionary statutory power was highly unlikely to take precedence over the rights and obligations which arise under the Anti-Discrimination Act. Thirdly, the fact that we have been asked not to make an order directing the Minister to refrain from further breaches of the Act because it is proposed that the law will be amended must be taken as acknowledgement of the fact that the applicants had legitimate claims under the Act. The applicants are entitled to orders that the respondents pay their costs as agreed, or as assessed by a costs assessor pursuant to the provisions of the Legal Profession Act 2004.

45 The Tribunal makes the following orders:

SUPRA v Minister for Transport Services and ors (file no 041012)

1. The respondents must pay to the represented person, Mr Haoyu Wang, damages of $483 (being economic loss of $389 and interest of $94) within 28 days of the date of this order.

2. When exercising his powers under s 88(1) of the Transport Administration Act 1988 to determine eligibility for concessional travel on public transport services the first respondent must not discriminate against applicants for concessional travel entitlements which are available to tertiary students on the ground of their nationality.

3. Order No 2 comes into effect three months after the date of these orders.

4. The respondents must pay the applicant’s costs of these proceedings as agreed or as assessed by a costs assessor pursuant to the Legal Profession Act 2004.

5. The parties have liberty to apply generally on two days’ notice to the other parties.

Bravo Nuevo v Minister for Transport Services & ors (file no 041013)

1. The respondents must pay to the applicant damages of $2254 (being economic loss of $1832 and interest of $422) within 28 days of the date of this order.

2. When exercising his powers under s 88(1) of the Transport Administration Act 1988 to determine eligibility for concessional travel on public transport services the first respondent must not discriminate against applicants for concessional travel entitlements which are available to tertiary students on the ground of their nationality.

3. Order No 2 comes into effect three months after the date of these orders.

4. The respondents must pay the applicant’s costs of these proceedings as agreed or as assessed by a costs assessor pursuant to the Legal Profession Act 2004.

5. The parties have liberty to apply generally on two days’ notice to the other parties.

Martinez Neira v Minister for Transport Services & ors (file no 041014)

1. The respondents must pay to the applicant damages of $899 (being economic loss of $836 and interest of 463) within 28 days of the date of this order.

2. When exercising his powers under s 88(1) of the Transport Administration Act 1988 to determine eligibility for concessional travel on public transport services the first respondent must not discriminate against applicants for concessional travel entitlements which are available to tertiary students on the ground of their nationality.

3. Order No 2 comes into effect three months after the date of these orders.

4. The respondents must pay the applicant’s costs of these proceedings as agreed or as assessed by a costs assessor pursuant to the Legal Profession Act 2004.

5. The parties have liberty to apply generally on two days’ notice to the other parties.