Waters & Ors v Public Transport Corporation

[1991] HCATrans 29

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M41 of 1990

B e t w e e n -

P . WATERS AND ORS

Appellants

and

PUBLIC TRANSPORT CORPORATION

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA WEDNESDAY, 6 FEBRUARY 1991, AT 10.18 AM

(Continued from 5/2/91)

Copyright in the High Court of Australia

Waters(2) 78 6/2/91

MASON CJ:  Yes, Mr Costigan?

MR COSTIGAN: If the Court pleases, might I just mention two

preliminary matters.

This case was originally concerned with complaints based on "scratch" tickets and the

abolition of conductors on modern trams and orders

were made in respect of both of those. The

"scratch" tickets has become a part of history

because it has been abandoned and the Corporation

has reverted to the old system of selling ordinary

tickets although "scratch" tickets are an

alternative, but there is no longer a basis for the

discrimination alleged against the Corporation in

respect of "scratch" tickets. I appreciate that

that is an abandonment which can always be reversed

but for the present moment it is an academic matter
but none the less the orders made against the

Corporation are still in respect of "scratch"

tickets and the appeal was brought to His Honour

Mr Justice Phillips against the "scratch" tickets

as well.

TOOHEY J:  I suppose it would have been open, Mr Costigan,

for the Corporation to go back to the Board in the

light of the amended directives and perhaps ask for

a rescission of the order relating to the "scratch"

ticket.

MR COSTIGAN: That would be a possibility. It has not been

done because the final decision in relation to the
"scratch" tickets was taken after the proceedings
had been commenced in relation to the orders

generally.

TOOHEY J:	How far had they reached, that is, the proceedings, when the Corporation amended its
directive in regard to "scratch" tickets?
MR COSTIGAN:	It was really a government decision by another

directive to the Corporation. Your Honour, I

cannot answer that specifically. I mention it

because the debate before His Honour

Mr Justice Phillips was directed basically to the

driver-only trams, and indeed, subject to the

defence under section 39, I would have difficulty

in relation to the "scratch" tickets because it is

much easier to talk of conditions and requirements under section 17 in relation to "scratch" tickets.

Unless I was successful under section 39 I would

not be advancing any other arguments in relation to

the "scratch" tickets. But it is in relation to

the driver-only trams that I am proposing to direct

my major submissions.

Waters(2) 79 6/2/91

DEANE J:  And the reduction in station attendants

disappeared from the case at the Board level.

MR COSTIGAN: Well, we won that and there was no appeal

against it.

DEANE J:	And it has never been raised again?
MR COSTIGAN:	Yes, it is purely trams, Your Honour. That

was the first preliminary matter I wished to

mention. The second was, if I could just say in a

very summary fashion that - - -

DAWSON J:  Mr Costigan, I am not sure where we stand. "scratch" tickets are gone - well not gone
completely, but we now have ordinary tickets. The

MR COSTIGAN:  Yes.

DAWSON J: That means you have to have conductors - - -

MR COSTIGAN:  We still have conductors of course - - -

DAWSON J: Well, there are conductorless trams.

MR COSTIGAN:  Yes. But it will be possible to buy ordinary

tickets from the drivers rather than from

conductors.

DAWSON J:  So you still have one-man trams?

MR COSTIGAN: That is the intention of the corporation, in

respect of modern trams only not the old style

trams.

DAWSON J:	I see, so they are conductorless trams?
MR COSTIGAN:	Yes, Your Honour.

DEANE J: But what would Justice Phillips have done about

"scratch" tickets if he had not been of the view

that the defence under 39 prevailed?

MR COSTIGAN:  He would undoubtedly, Your Honour, have held

that there was discrimination under section 17(5).

DEANE J:  He would have had to send it back because of his

view as to the error in relation to 17(5).

MR COSTIGAN: 

Yes, Your Honour, but once having found for

the Corporation under section 39 that was not
necessary.

DEANE J: But does that not mean though that if, as would

seem to be the case, the appellant attacks his

decision on "scratch" tickets we have to deal with

Waters(2) 80 6/2/91

it in terms of deciding whether or not he was wrong

because it is not completely academic?

MR COSTIGAN: That is so, Your Honour, but it is more for my

learned friend, if I might say so, with respect,

than me. I would defend his decision in relation

to "scratch" tickets solely on the section 39 point

and not on any other point.

DEANE J: But you are not suggesting that it has all become

irrelevant, therefore we do not deal with it?

MR COSTIGAN:	No, I am not suggesting that, Your Honour.
GAUDRON J:	Does that mean you will be making no argument

about section 17(5)?

MR COSTIGAN:  No, it does not mean that at all.

GAUDRON J: Will your argument on section 17(5) be different

depending upon whether it relates to driverless

trams or "scratch" tickets?

MR COSTIGAN: Yes, it will. The interpretation of

section 17(5) that I will be putting to the Court I

would hope would be consistent whichever

discrimination I was concerned with, but I would be

talking about a different requirement or condition

in relation to driverless trams and -

GAUDRON J: Yes, well, I should have been more specific.

17(5) - reasonableness, is that part of your

argument?

MR COSTIGAN: Yes, indeed it is.

GAUDRON J:  And is that different depending upon the trams

and the "scratch" tickats?

MR COSTIGAN:  No, it is not, Your Honour, because I will be

saying that in looking at "reasonableness"

under 17(5), one should be looking at

"reasonableness" in all the circumstances and the

circumstances include, to a very large extent, the

financial and economic circumstances, and it is in
that area that I will be - that is equally relevant

to the "scratch" tickets as the driver-only trams.

DEANE J:  So we are concerned with two issues in "scratch"

tickets: one is, is there a defence under 39; the

second is, if there is a defence, was His Honour

correct when he said "The Board misconstrued

17(5)(c)? If you be right on that - - -

MR COSTIGAN: Yes, Your Honour, then it has an impact on the

"scratch" tickets as well. Yes, Your Honour, even

though my arguments be in the framework of driver

Waters(2) 81 6/2/91

trams. What I wish to, in a very summary fashion,

say that, although in many ways this is a

complicated case, complicated to a large extent by

the fact that the Act is a complicated Act, it is

an important case, but the major issues can, in

fact, be fairly clearly defined, and we say there

are four of them that need to be dealt with, not
necessarily in this order.

The first is, was there in fact discrimination

within the meaning of section 17(5) -
discrimination in that the discriminatory impact on
the complainants resulted from a condition or

requirement imposed by the Corporation on the

complainant? That is really the first issue,

although as a matter of logic, one should go to

section 29 first.

The second issue is what does section 29 mean

in the light of incorporating the definition of
"discrimination'' from section 17 and the third

issue is is it proper to look at all the

circumstances under section 17(5), the matter

Your Honour Justice Gaudron mentioned, to determine

whether the condition or requirement was

reasonable, and the fourth matter is the section 39

defence that was discussed yesterday. They are

the four central arguments. They, of course,

impinge to some extent on each other but they are

the issues I would wish to address.

There is a peripheral matter that arises in

the course of my written submissions about the

grounds raised in the originating motion and when I

say peripheral I do not, for a moment, say that is
not important but I am going to put that at the end

of my submissions and I think I can deal with that

shortly because on one view of my submissions it is

not necessary for me to go to the matters raised in

the originating motion.

If the Court pleases, if I could turn to my

submissions. The Equal Opportunity Act was first

passed in Victoria in 1977 and it was at that stage

concerned with discrimination on the ground of sex or marital status and nothing else and it was also concerned with direct discrimination and not

indirect discrimination. It was the· first attempt

by the Victorian Government and it was a limited

Act, limited to those two kinds of discrimination

and just to direct discrimination.

Then in 1982 there was passed the Equal

Opportunity (Discrimination Against Disabled

Persons) Act 1982 and that Act for the first time

introduced the concept of physical impairment, and

the sections which were introduced into the 1977

Waters(2) 82 6/2/91

Act by the 1982 Act included, for physical

impairment, the concept of indirect discrimination

as well as direct, so that in 1982 one had in

Victoria an Act which dealt with sexual and marital

status discrimination on a direct basis and

physical impairment on a direct and indirect basis
and that was the product of a good deal of
discussion in the Parliament. There were in fact

two attempts to get the Act passed; there were two

bills.

In 1984, there was passed the Equal

Opportunity Act 1984 which is the Act that the

Court is concerned with. What that Act did was to

repeal the two previous Acts and then to redraft

significantly the structure of the Act and the way

in which the Court has seen it. There was

material, which I will produce to the Court a

little later, which indicated a clear intention on

the part of the minister in the second reading

speech that there should be no change in the

principles behind the previous Acts, but it was an

attempt to recast so that what we have done in

Victoria is to have a general section 17 which defines "discrimination" and then there is attached

to that a whole series of different kinds of

discrimination which pick up the definition of

"discrimination" from section 17. That is to be

contrasted with Acts in other States and other
countries. For example, in the United Kingdom one

has a Sex Discrimination Act and a Racial

Discrimination Act which deals separately in their own separate legislation with the particular kinds of discrimination.

We say, when one looks at the Equal

Opportunity Act 1984, the structure - and this

submission is a submission which was accepted by

His Honour Mr Justice Phillips - is, when one is

looking at discrimination in the provision of goods

or services, the first thing you do is go to

section 29 because that is the section which makes

it unlawful for a person to discriminate. When you

hit on the word "discriminate" in the second line

of section 29, one then has to go back to

section 17 to find what "discrimination" means and

having done that you then come back to section 29

to see whether the Act which is defined as

discriminatory by section 17 complies with the

provisions of section 29 so as to become unlawful.

That is, we say, the proper in which it should be

attacked.

Of course, when one gets to section 29 one has

to define the services that are being provided in
order to test the Acts by reference to those

services and in order to see whether or not there

Waters(2) 83 6/2/91

has been a condition or requirement imposed on the

complainant in relation to those services. There

what were the services that should be discussed for

has been a good deal of debate both between the

these purposes.

The complainant said that it should be the public transport system.	We would say immediately
that cannot be right.	The public transport system

is just too wide a description of services, and I

can justify that, with respect, by saying it

clearly does not include trains. The public

transport system, of course, has trams, buses,

trains and a whole range including light trains,

but so far as services of trains are concerned

that, in fact, in these proceedings formed a

separate complaint of discrimination and it was

found there was no discrimination.

It is necessary, we would submit, to limit the

description of "services" to a more confined area. section 29 has to be related to the person who is

complaining. For example, we would say that a man

in Melbourne cannot complain comfortably about a

bus service in Wodonga when he never goes to

Wodonga, because it is not a service that is being provided to him.

So there has to be some element, we would

submit, of relating the particular service to which

section 29 is being attached to the person or

persons who is complaining. We would say that at

the highest the services that are the subject of 29

for these purposes is the tram system. That, of

course, is a fairly wide description but it is a

good deal less than the general public transport

system and, indeed, so far as this case was

concerned it was only trams - I put trains on one

side because of the finding of the Board - of which

the successful complainants were complaining.

That tram system, of course, at the time the application came before the Board, included trams
with drivers and trams without drivers.	The trams
without drivers at that stage were - - -

DEANE J: Without drivers?

MR COSTIGAN: Without conductors. Perhaps I need a driver,

Your Honour. It included with trams with

conductors and, on the Camberwell line, trams

without conductors. It also included - that was

the tram system.	The buses were separate from
that.

Waters(2) 84 6/2/91

DEANE J:  Was there any evidence as to whether, before the

changes, there had ever been trams in Melbourne

without conductors?

MR COSTIGAN:  I do not believe so, Your Honour, and, indeed,

I do not believe that to be the fact. I think

there have always been conductors. Certainly there

was no evidence.

DEANE J:  Can I ask you this: was the case conducted on the

basis of relevantly up until the changes there had

been conductors who had done the sort of things

that evidence was given about?

MR COSTIGAN:  Yes, Your Honour. Certainly that was the basis of the whole case.

BRENNAN J: But was it a case of conductors who would do the

sort of things that were referred to or was it

conductors who did those things as part of the

service provided by the commission?

MR COSTIGAN: There was certainly evidence that - really

from the complainants of conductors having done the

kind of things for them individually in the past

which they now complained they were not getting

because there were no conductors. There was not,

as I understand it, any general evidence as to the

general performance of duty of conductors although

it was implicit in the argument that conductors did

a number of things which were really not pertinent

to the complaints of the complainants, for example,

selling tickets and so on but there was not general

evidence, Your Honour. There was specific evidence

that conductors used to help the disadvantaged
getting up and down from the tram and, in the case

of blind complainants, advising them which stop was the appropriate one to get off, that kind of thing,

and we do not dispute that nor, indeed -

DEANE J:  Mr Costigan, there are wide findings of the Board

in that regard on page 366 to 367 in relation to

the assistance the conductors gave to the blind or

those with impaired sight.

MR COSTIGAN:  We do not challenge those, Your Honour. And

we do not challenge that the absence of conductors
acts to the disadvantage of those disabled persons

who made the use of conductors in the past. That

is not a matter we challenge. We do, of course,

challenge that that impact is the result of an
imposition of a requirement or condition, that is
another matter altogether. But the factual finding

of the Board is not the subject of challenge here

nor was it before Mr Justice Phillips nor, indeed,

was it probably possible to challenge it.

Waters(2) 85 6/2/91

Now, we say, that whatever the services that

the Corporation was providing were, there has to be

a description of those services so that one can

test both under section 29 and under section 17

whether there has been discrimination and a breach

of 29. Section 29 contemplates that once 17
operates so as to produce a finding of
discrimination, that is not the end of it, but you

then come back to 29 and you find that you have got

a person who discriminates within section 17 and if

that person then can be fitted into either (l)(a)

or (b), then you have unlawful discrimination and

the consequences then follow. If there is a

finding of discrimination under 17(5) and one finds

that that person who discriminates is either

refusing to perform the services as defined or is discriminating the terms on which he performs the

provides an exemption, or in the absence of

services, then you have unlawful discrimination.

section 39, then there is an appropriate finding of

unlawful discrimination and the consequences

follow.

BRENNAN J:  What is the meaning of the phrase "on the ground

of"?

MR COSTIGAN: Is that in section 17?

BRENNAN J: Section 29 and 17.

MR COSTIGAN: First of all, Your Honour, it has got the same

meaning, we would say, as in section 17. It is

easier to answer that question in direct

discrimination because what one is saying is that
you have acted towards another person because of

their sex, because of their physical impairment and

it is on the ground of that that you have done it.

We would say that it has to be the same meaning

given to that in section 29.

"On the ground of" status, for our purposes in

this case, means on the ground of physical

impairment because that is the particular status.

BRENNAN J:  How does that work with indirect discrimination?

MR COSTIGAN: Well, this was the subject of a very lengthy

debate before His Honour Mr Justice Phillips and at

the end we did not persist with the argument that

we were originally making that you needed a

conscious intention to discrimate for the purposes
of subsection (5) as well as subsection (1). At
the end of the day it is clear - and we do not

dispute - that subsection (5) sets out three

requirements and if satisfied it says that a person

Waters(2) 86 6/2/91

is deemed to discriminate against another person on

the ground of physical impairment if those three

requirements are satisfied. That then takes you

into section 17(1) but it is indirect

discrimination rather than direct.

So it is in that sense one has to identify.

It is somewhat artificial in relation to indirect

in that it clearly is not in the mind of the

discriminator to perform its acts for specific sexual or racial or impairment reason, but the

effect of subsection (5), we would submit, indeed I

think concede, means that if (a), (b) and (c) are

satisfied then you have a statutory presumption

that the discrimination is on the ground of the

particular status, in this case impairment.

BRENNAN J:	Does that mean that subsection (5) is the exhaustive dictionary of the meaning of "on the
ground of" in a case of indirect discrimination?

MR COSTIGAN: Yes, we would say so, Your Honour. Exhaustive

qualified only by this, that subsection (5) takes

you through subsection (1) into the

appropriate ..... We would concede that if the

three requirements in subsection (5) are satisfied,
then the complainant has demonstrated

discrimination on the ground of whatever the

problem is, in this case impairment, and you then

have to go to section 29 to see whether having done

that you have unlawful discrimination.

TOOHEY J: There is another question perhaps, Mr Costigan.

May a complainant ignore subsection (5) and simply

base a case on subsection (l)?

MR COSTIGAN:  Yes, of course he may if there is direct

discrimination. That was never done in this case.

It was never suggested against the Corporation that

it was direct conscious discrimination, and the

case was - - -

TOOHEY J:

I am trying to avoid expressions like "direct"

and "indirect", but just as a matter of

construction of the Act, if a person can make good

a case under subsection (1) it is unnecessary to

bring the case within subsection (5).

MR COSTIGAN:  Yes, of course. There was a problem that the

complainants did not want to face in relation to

that because subsection (1) raises immediately the contrast between less favourable treatment and, if

I can say so with respect to them, they did not

want to enter that argument and we did. But if you

go under subsection (1) you are immediately faced

with the question of less favourable treatment, and

there really was not less favourable treatment.

Waters(2) 87 6/2/91

There was the same treatment, unless you go to

subsection (5) when you are talking about "impact",

and there was a different impact.	But there was
not less favourable treatment.

DEANE J:  On your understanding of section 17(1),

section 17(5) is really a deeming provision, is it

not?

MR COSTIGAN:  Yes. There was a problem with the first six

words in subsection (5) - "for the purposes of

subsection (l)" - and we attempted to make some

point of that, bt:~ at the end of the day we did not

persist with that. But yes, subsection (5) is a

deeming section, Your Honour.

So the structure, as we put it, it is a

discrimination alleged in respect of services.	One
goes to section 29.	You do not go - in the first

line you decide what the services are, you then see

the word "discriminate", you go back to
section 17(5) to see whether there is

discrimination, if there is not then there is no

room frir the operation of 29; if there is

discrimination you identify it and then you come

back to 29 to see whether that discrimination is

unlawful.

That description of the structure of the Act

was accepted by His Honour Mr Justice Phillips and
we do not understand it to be contradicted by the

complainants here.

McHUGH J:  Would you accept that subsection (5) is an

independent definition of discrimination and does

not merely have the function of giving an extended

definition to the first half of subsection (1)? In

other words, those opening words for the purpose of

subsection (1) do not merely operate in the first

half of subsection (1) and still require the

finding that there has been less favourable

treatment?

MR COSTIGAN:  We now accept that, Your Honour. We did not

before His Honour Mr Justice Phillips and we

mounted what we thought was a strong argument that

even under (5) you had to have the concept of less

favourable treatment. But at the end of the day we

abandoned that and we do not raise it again in this

Court. So, in that sense, Your Honour,

subsection (5) is an independent definition of

discrimination of an indirect kind. And in that

sense also it matches the pattern of all other

anti-discrimination legislation of two kinds of

discrimination, direct and indirect, and

subsection (5) is our indirect discrimination.

Waters(2) 88 6/2/91

We say that - indeed, at point 5 of our submissions I have indicated it in a formal sense

that we do not rely on that argument that

Your Honour Mr Justice McHugh just mentioned to me.

When one goes to section 17(5) - and I am

looking now at page 4 of my submissions, if the

Court will pardon me jumping but it is, with

respect, more logical to do it in this way -

subsection (5) raises the question of

reasonableness. We submit that in this subsection

"reasonable" means reasonable in all the

circumstances and these circumstances include

economic, financial and public policy matters.

The Board rejected that submission and it said

that, to summarize it, one does not need to look at

these matters for the purpose of subsection (5)

because they can be looked at for the purposes of

section 29. We say the Board is wrong about that

because they really are different questions being

asked under section 29 and under section 17(5).

His Honour Mr Justice Phillips discusses this

question. In our written submissions we have

the United Kingdom and we have also referred the

referred the Court to sections of the South

Court to pages 457 and 458 of the appeal book which

sets out some of the history.

We have prepared for the Court a short folder

which has copies of the relevant extrinsic

material.

If I could just say this to start off with: there was a good deal of discussion about

anti-discrimination in Australia in the late 1970s

and early 1980s and there are reports prepared by
the Anti-discrimination Board in New South Wales

and in South Australia and these were done before

the 1982 Act was passed in Victoria. There was in

Victoria a report by a Susan Bradshaw who was in

the office of the Commissioner for Equal

Opportunity. That appears under the green tab, or the front page does, and she referred to the South

Australian and New South Wales reports and that

report was prepared for the Victorian Government.

It was really as a result of this activity and the

reports in the various States that in 1982 the

Equal Opportunity (Discrimination Against Disabled

Persons) legislation was passed. And under the

blue tab we have put an extract from the second reading speech of the then Minister for Health,

Mr Roper, that indicates on the right-hand

paragraph that these reports formed the basis of

the legislation.

Waters(2) 89 6/2/91

Now, what happened in 1982 - and the 1982 Act

is to be found under the blue - the first document behind the blue tab - 27A was the section which is

the predecessor of the current 17, Your Honour.

And one sees in subsection (2):

A person discriminates against another person

on the ground of his impairment if he

discriminates against that other person on the

ground that he does not or is unable to comply

with the requirement -

(b) which is not reasonable having regard to

the circumstances of the case.

Now, one finds when one looks through the

legislation in South Australia and in New South

Wales, similar kind of words. In the United

Kingdom the words were used, "Which is not

justifiable in the circumstances of the case", but

every legislation has had a concept of testing the

requirement or condition, or whatever word is used,

by reference to some concept of reasonable or

justifiable. And what the Victorians did in 1982

was to use the expression that I have just read

out, "which is not reasonable, having regard to the

circumstances of the case".

Well, then in 1984, when the current Act was

passed, and there was a statement by the minister,

who was Mr Cain, under the blue tab, it is

page 4719 of the Hansard, he said:

Its purpose is to implement the Government's

policy for the promotion of equal opportunity discrimination on the basis of sex or marital
for all Victorians. In 1977 the Equal

status. Last year the Government's Equal

Opportunity (Discrimination Against Disabled Persons) Act added impairment as a ground of

unlawful discrimination. The consolidating Bill repeals both the 1977 and 1982 Acts so

that all of the equal opportunity provisions

were presented in a coherent manner.

It should be emphasized that the Equal

Opportunity Act 1982, passed so recently by

Parliament has, in so far as is grammatically

consistent, been reproduced in this Bill. It

is for the purpose of clarity and not for

reopening debate, that the 1982 Act will be

formally repealed and re-enacted.

And then he goes on.

Waters(2) 90 6/2/91

His Honour Mr Justice Phillips took some

comfort from the fact that the intention of the

government was not in any way to change the

principles set out in the 1982 Act, but merely to

draw together the various Acts and the various types

of discrimination. By doing that and by choosing

the course which they did, which is a different

course to other States and the United Kingdom, and

by incorporating in one section, section 17, the

definition of discrimination, and then attaching to
it the various kinds of discrimination, it became
necessary, of course, to alter the wording of the

statute, and section S(c) then read, "The

requirement or condition is not reasonable", but did

not include the words "in the circumstances of the

case".

We have given the Court that history in the

hope that it may throw some light on the current

state of the Act, but independently of that

history - perhaps if I go back, we would say that
history supports the view that it was intended that

the test of reasonableness should be by reference
to the circumstances of the case - but
independently of that history, we would say,
looking at the section - section 5 - it is the

sensible interpretation of it that the test of

reasonableness should be wide and should be

referable to the circumstances, not only of the

complainant, but also of the discriminator, because

what the section is saying is that if a person

imposes on another person a requirement or

condition, which in effect has an impact on that

person which is less favourable than other people

of a different status, and that person does not or

cannot comply with that condition or requirement,

and it is not reasonable, then you have got

discrimination. But each of those three conditions

has to be satisfied and therefore one has to look

at the requirement or condition and the

circumstances under which it was imposed to

determine whether it was reasonable or not.

It was our submission, and has been all along

in this case, that in determining whether the

particular requirement or condition is reasonable
it is not just simply a question of seeing whether
the impact on the disadvantaged person is
unfortunate, but it is also a question of looking
at the reasons behind the imposition of the
requirement or condition in the light of general
public policy and general transport policy and also
looking at it in the light of economic policy and

the cost savings, and so on, in order to determine

whether the requirement or condition is not

reasonable. Now, the Board did not accept that.

Waters(2) 91 6/2/91

His Honour Mr Justice Phillips said that was

appropriate.

It is true, of course, that the Board took

confidential evidence as to the economic impact of

the changes which would occur if the conductors

were forced to go back on the trams and it refers

to confidential evidence that the cost was going to

be $26 million and it ultimately came to a view

that it was not satisfied that that would not be
the cost. So there is, in a sense, a finding of
fact against me, but it is a finding of fact not by
reference to the questions which we say need to be

asked under section 17(5) but by reference to the

questions that need to be asked under section 29,

because the investigation which the Board did of the financial and other general circumstances to

test reasonableness were by reference to

section 29(2).

That is a different section altogether and it

is a section that we say the Board got wrong in any

event. That is a section which deals with:

discrimination on the ground of

impairment ..... where ..... the person requires

the service to be performed in a special

manner -

and -

that can on reasonable grounds only be

provided by the person performing the service

on more onerous terms than the terms on which

the service could reasonably be provided for a

person not having that impairment.

Now, the Board said that means on more onerous

terms to the discriminator and then looked at the

question of reasonableness in the context of its

view of the section. We say two things about that:

we say, firstly, that is, on a proper reading of

section, not correct and that it has to be on more

onerous terms to the disadvantaged because the

comparison is on more onerous terms than the terms

on which the service could reasonably be provided

to a person not having that impairment.

So that we say if the Board is wrong - and it

is not, in a sense necessary for this Court to

determine that - but if the Board is wrong in its

interpretation of subsection (2)(b), then it is

considering the question of economic and financial
matters in the context of asking itself the wrong

question, but even if it is right it is only

looking at the question of more onerous terms in

the context of the provision of the service in the

waters(2) 92 6/2/91

special manner and what we had submitted it should

have done, and what we still say it should have

done, is it should have looked at the question of

reasonableness in the context of the imposition of
the requirement or condition, and it is in that

area that one needs to look at the economic,

financial and public policy considerations in order

to determine whether the requirement or condition

is not reasonable.

TOOHEY J:  You may well be right, Mr Costigan, about that.

It would make it difficult to run a case under

subsection (5), would it not, because economic considerations, financial considerations would really have to come from the person who was said to

be discriminating?

MR COSTIGAN:  Yes, it would, of course, but there was a

general acceptance, and probably correct and I do

not dispute it, that the onus was on the

discriminator to produce the evidence which showed

that it was reasonable. Whether that is correct,

or not - if it is, of course, correct then it does

deal with Your Honour's comment.

TOOHEY J: But if it is not correct, then it does not.

MR COSTIGAN: It is almost impossible for a complainant to

have access to the kind of material which would

enable him to say whether the decision to impose

the requirement or condition was reasonable. So,

we do not resile from the proposition that there

was an onus on us as the Corporation if we say that

the condition is reasonable to produce the

evidence.

GAUDRON J:  Mr Costigan, I must say from my part, I do not

see the relevance of the submissions of either side

on the question of reasonableness. The requirement

of reasonableness is in the definition of

"discrimination". Basically, discrimination is

about treating people differently when the
difference is irrelevant.	The point of the

definition of subsection (5) and the relevance of

"reasonableness" is to ask in a rough and ready

test as postulated by subsection (5) of treatment

whether you are, in fact, dealing with a difference
that is relevant.

The exceptions and exemptions which turn up in

the other sections presuppose that you have
established discriminatory treatment and then you

justify it by the other considerations. But what

is being asked in section 17(5)(c) is whether or

not you are treating a difference that is relevant

- dealing with a difference that is relevant.

Waters(2)	93	6/2/91
MR COSTIGAN:	Yes, Your Honour.	We would say that if what

Your Honour is putting is correct, there would be

no need to have subsection (c) at all, that all

that one would need in order to define

"discrimination" are (a) and (b) and the question

of whether it is reasonable could then be dealt

with in those other sections.

GAUDRON J: Not at all. Let us assume that it is a bank

requirement that it only lends to adult children

and that you are dealing with age discrimination,

for example. The question of - I am sorry, adult

children, I should not say that - that it only

lends to adults. The question of whether a person

is adult or not is relevant and, therefore, it is

reasonable. Now, similarly, if you take it a bit

further down and put it that it is the policy to

lend amounts in excess of $100,000 only to people

in receipt of an income in excess, we will say, of

$50,000 and you look at the statistics and you find

that more men than women can comply with that

condition because of earning patterns, then you ask is income at that level relevant to the repaying of the loan. Therefore, is it reasonable? Does it

bear on it? You do not just look at large.

MR COSTIGAN: That, with respect, is the narrow view of the

section. It is the view which was taken by the

Board but for different reasons, not expressed in

the way in which Your Honour has put it. We say

that really is to give a very narrow interpretation

of subsection (c) and, of course, if what

Your Honour says is the correct interpretation,

then what I have - - -

GAUDRON J: But it is a definition of "discrimination", is

it not? It is not a question of what may be

excluded once you have established it.

MR COSTIGAN:  Yes, but it is also, we would say, a

reflection of the underlying philosophy behind

anti-discrimination legislation that at the end of

the day it is a balance and that one does not cure	all the disadvantages that the disabled have by
legislation. There are a series of balances, and
I was about to take the Court to the Ontario
case - -

DAWSON J: Before you do that, the real argument is, "Is the

requirement or condition reasonable?", not whether

it can be reasonably applied, and you make no

distinction. That is, I think, what

Justice Gaudron is saying. I mean, you might have

a quite reasonable condition in the sense that it

is a condition which has an explanation which is

perfectly reasonable, which has an impact which you

may or may not decide is reasonable. But you have

Waters(2) 94 6/2/91

to decide whether the condition itself is

reasonable first.

MR COSTIGAN: Yes, I accept that. That is the first

question. One looks at the condition or

requirement to decide whether it is reasonable, but

in determining whether it is reasonable one has

to - - -

DAWSON J:  And to determine whether there is discrimination.

MR COSTIGAN: That, with great respect, is in a circle,

Your Honour, because - - -

DAWSON J:	No, it is not.
MR COSTIGAN:	- - - whether it is reasonable is part of the

requirements for discrimination, and - - -

DAWSON J:  When we are at section 17(5) we are talking about

the definition of "discrimination", maybe an

extended definition.

MR COSTIGAN:  One of the elements of discrimination under

section 17(5) is the question of reasonableness,

and if it is reasonable then it is not

discrimination. You do not get to discrimination

until you have satisfied (a), (b) and (c).

DAWSON J: But it is not a question of whether the

discrimination can be justified. It is question of

whether there is discrimination. That is the

distinction. There are other sections which talk

about whether the discrimination can be justified.

MR COSTIGAN:  Of course, but one does not get to - in

indirect discrimination, if what one needs to find

is a requirement or condition which has a different

impact on disabled as opposed to ordinary people,

you do not have discrimination within the meaning

of the Act if the requirement or condition imposed

is reasonable.

DAWSON J: Well, you see, that begs the question. When you

look at the word "reasonable" there you have to say

reasonable in what sense, in what circumstances?

If other sections deal with reasonableness in

another sense, then it would point to the fact that

it is confined there.

MR COSTIGAN:  I do not walk away from the proposition that

it is confined to the question of requirement or

condition. That must be so in view of the way the

section is framed but, in determining whether a

requirement or condition imposed on particular

people is reasonable, it is our submission you are

Waters(2) 95 6/2/91

entitled to look at a whole range of circumstances

before coming to that conclusion. And it is not

until you have come to that conclusion that you can

say that all the criteria of the definition have

been satisfied. You are two-thirds of the way to

finding discrimination when you have found (a) and

(b) but you have not got there until you have found

( C) •

BRENNAN J:  Mr Costigan, you responded to Justice Gaudron by

your proposition that there are two views of

"reasonable", one is the narrow view and one is the

broader view. I imagine that the distinction

between the narrow view and the broader view is

that the narrower view excludes some factors from

consideration which would be taken in by the broad

view.

MR COSTIGAN:	The broad view is even narrower, if I could say so with respect, than Justice Gaudron because
the Board took the view that the test of
reasonableness was reasonable to the disadvantaged
and that you just looked at the person on whom the
impact occurred to see whether the condition was
reasonable and that you did not look at any other
circumstances to see whether the imposition was
reasonable.  And it is for that reason that they
did not consider all these other matters in the context of section 5 because our submission was
that if you did and you decided it was reasonable
that was the end of the case because you never got
back to section 29.
DAWSON J:	You see, it seems to me it is not a question

under section 75, whether the discrimination is

reasonable, it is a question whether there is
discrimination at all. If you want to find out
whether the discrimination is reasonable you go to

other sections.

MR COSTIGAN: With respect, I absolutely accept that,

Your Honour.

DAWSON J: That seems to confine it.

MR COSTIGAN: Except that it is an element in the definition

of discrimination, the concept of reasonableness of

the requirement or condition and until one has

dealt with (c) you have not got discrimination.

DEANE J:  Of course, if Justice Gaudron's view that you

equate "reasonable" with "relevant" is accepted it

would look really only to the position of

discriminator and may be of assistance to you in

that, for example, it could be very relevant to
say, "We are providing tram services, blind people

on trams are a terrible nuisance, they involve

Waters(2) 96 6/2/91

greater expense, they slow the service, they do
this or that and therefore we will ban them

completely." It may help you rather than - - -

MR COSTIGAN:  Or we might decide that we accept the problems

associated with using trams without conductors and

we will provide a different service to

disadvantaged people, buses and things like that.

I do not want to go into evidence from the bar

table, Your Honour, but it is those kind of matters
that we say are legitimate to look at under (c) in

order to determine whether the requirement or

condition is reasonable and we are not allowed to

do that for the purposes of that. And if our

submission is correct on that point then before one

ever gets back to section 29 where the

discrimination is declared unlawful, one has to

find an act which falls within section 17. I do

not understand that Justice Gaudron is dissenting

from that view.

GAUDRON J: It is the issue, I would have thought, that was

Street v the Queensland
considered by this Court in condition was - and I think the language generally
used was appropriate and adapted to the difference

emanating by reason of qualification outside the

State and inside the State of Queensland. You find

a difference and then you go on and say, "Now, does

it really bear on the difference in that way?", and

it was that consideration which - - -

MR COSTIGAN:  My learned junior has reminded me in the 1982

Act that the section read somewhat differently. It

was an addition in the 1982 Act and it said:

(3) For the purposes of sub-section (2) -

which is now subsection (3) -

a requirement is not reasonable if in seeking

to enable a person with an impairment, to

comply with the requirement as easily as a

person without an impairment, unreasonable

expense or inconvenience is involved.

That was in the 1982 Act and it was taken out as a

matter of drafting in the 1984 Act and what

conclusion one draws from that is, to some extent,

a balancing between the ordinary views as to

meaning to be given to eliminating a section and

the purpose of the government in attempting to not

vary the principles in the 1982 Act.

DAWSON J: Yes, but when you look at section 17(5) it takes

the view, does it not, that discrimination on the

Waters(2) 97 6/2/91

ground of "status" or "private life" is never

reasonable? You start from that proposition -

MR COSTIGAN: If Your Honour is asking me to - - -

DAWSON J: That is the reason for the discrimination.

MR COSTIGAN:  I do not start from that proposition,

Your Honour.

DAWSON J: Is that not what it says? And then you look down

to "reasonable" and it means that it may be

explained on some other reasonable basis and then

it ceases to be discrimination on the extended

definition on the ground of "status" or "private

life".

MR COSTIGAN: Direct discrimination is never reasonable

under subsection (1). If there is direct
discrimination then there is no test of

reasonableness at all.

DAWSON J: But section 17(5) is defining the limits of

indirect discrimination.

MR COSTIGAN: That is so and for indirect discrimination

because it is a different kind of discrimination,

and one is talking about impact and condition and

requirements being imposed, the legislature has

said there is an element of reasonableness which

has to be considered which does not have to be

considered when one is talking about direct -

DAWSON J:  What it means is there is a reason for what you

are doing apart from status or private life, an

adequate reason, that is what it means because

other sections deal with reasonableness in another

sense.

MR COSTIGAN:  Yes. In order to determine whether there is

an adequate reason one needs to look at the

circumstances surrounding the imposition of the

condition or requirement.

DAWSON J: That, you see, is what is being put against that

argument.

BRENNAN J:  I must say for myself the words all sound very

interesting. To give them any content one must

surely say that there are some factors which are

excluded unless one is to have regard to all the

factors which are relevant to the imposition of the

requirement or condition. Now, at the moment, for

myself, I do not understand what the criterion of

exclusion of relevance is if there is one. Do I

take it you say that anything that is relevant to

the imposition of the requirement or condition can

Waters(2) 98 6/2/91

be taken into account to determine what is

reasonable?

MR COSTIGAN:	It can be taken into account in determining whether the imposition was reasonable or not.
BRENNAN J: Yes.	I suppose we must look for some other

ground if there is a narrower view to be taken.

MR COSTIGAN:  Yes. The alternative view which the Board

took and which was rejected by Mr Justice Phillips

was that one looked solely at whether it was

reasonable from the point of view of the

discriminated.

BRENNAN J: 

I find that a difficult concept to come to grips

with, whether one relates it to discriminated or
discriminator, because does the discriminator and
discriminated never have regard in terms of-

reasonableness to the position of the other?

MR COSTIGAN:  Well, we say they must. We certainly would

not - we attack the narrow view that the Board put

because that, in a sense, does not give any meaning

to subsection (c), because in a sense, it is never
reasonable from the point of view of the

discriminated.

BRENNAN J: Let me press you a little further. Assuming

that one takes all matters into account in

determining what is reasonable, is the question of

reasonableness one which is in the terms, which I

think Justice Dawson put to you, to decide whether

or not the imposition of the requirement or

condition is essentially related to the status or

private life, rather than to other considerations?

MR COSTIGAN:	Your Honour, if the Corporation, for example, imposed a requirement or condition that on a
particular route which went across a very narrow bridge on a valley and the only trains with the appropriate gauge were those without doors which closed - if it imposed a requirement or condition
that no disabled people would be allowed to travel
on that route, in order to determine whether that
requirement or condition was appropriate you would
have to look at the circumstances which prompted
the imposition of the requirement or condition.

Now, it may be that a board would, having

listened to all that material, say, "Look, it is

just not reasonable to do that.	You will have to
go and put some doors on them.	We do not accept
your reasons.	We do not accept why you did it",

but they would be entitled, we would say, to look

into the circumstances. I am not certain that

answers what Your Honour put to me.

Waters(2) 99 6/2/91

BRENNAN J: In whom is reposed the making of the value

judgment?

MR COSTIGAN:  Ultimately the Board. I do not submit that if

the Corporation thinks it is reasonable that is

good enough. It has to be an objective test, and

one is not assisted by any criteria set out in the

section, so that one has to just look at it in all

would like to refer the Court, in passing, to the	the circumstances. It is in this context that I yesterday, (1985) 2 SCR. That was the case, the
Court will recall, where the lady, because of
religious beliefs, was not prepared to work on
Saturday. Now there was a strong court of seven
and one judgment, delivered by Mr Justice McIntyre,
and there are a number of statements in the
judgment that I would invite the Court to consider.
On page 550 - and I am referring to the English
text, if the Court pleases - half-way down, d:

There is, of course, no disagreement in the case at bar that direct discrimination of that nature ..... It arises where an employer for

genuine business reasons adopts a rule or

standard which is on its face neutral, and

which will apply equally to all employees, but

which has a discriminatory effect upon a

prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or

group, obligations, penalties, or restrictive

conditions not imposed on other members of the

work force.

MASON CJ:  What page is this, Mr Costigan?

MR COSTIGAN:  Page 551. It is in the middle of the page I

read out, the section starting at D and it would

end down the bottom of the page. On pages 552

and 553 there is a general discussion by the court

as to the way in which these kinds of legislation

should be considered and there is an indication

that it is always important to balance the rights

of both the discriminator and the discriminated and

at the bottom of page 552 the court said, talking

about the Ontario Human Rights Code:

if the purpose of the Ontario Human Rights

Code is to be given effect some accommodation

must be required from the employer for the

benefit of the complainant. The Code must be

construed and flexibly applied to protect the

right of the employee who is subject to

discrimination and also to protect the right
of the employer to proceed with the lawful

conduct of his business. The Code was not

Waters(2) 100 6/2/91

intended to accord rights to one to the

exclusion of the rights of the other.

American courts have met this problem with

what has been described as a "duty to

accommodate", short of undue hardship on the

part6 of the employer.

Then in the middle of the page there is a quotation

from Professor Ratushny:

... the very general standard of whether the
employer acted reasonably in attempting to

accommodate the employee in all of the

circumstances of the case as well as in the

context of the general scope and objects of

the Code.

The reasonable standard, referred to by

Professor Ratushny, and the duty to

accommodate, referred to in the American

cases, provide that where it is shown that a

working rule has caused discrimination it is

incumbent upon the employer to make a

reasonable effort to accommodate the religious

needs of the employee, short of undue hardship

to the employer in the conduct of his

business.

McHUGH J:  Mr Costigan, is this case really of any

assistance at all because the court was concerned

with a statute which simply said, "No person shall

discriminate against an employee", and you have

nothing comparable to section 17(5), do you?

MR COSTIGAN:  There is nothing comparable, but what there

is in this case, from which I draw some comfort,

and I read it because it is expressed in better

words than I could use myself, is the necessity in

this kind of legislation to understand that there

is a balance and that it is not just a question of

if one finds an adverse impact on the disadvantaged

that that is the end of the matter. There is a

necessity to understand the balance and the

requirements of the person who is alleged to be

discriminating and in that sense it is not

dissimilar to the concept of "reasonable" in

section 17(S)(c). It is for that purpose only,

Your Honour, that I am citing - - -

McHUGH J:  I understand that, but the real question is what

does section 17(S)(c) mean.	I am not sure that
you get any assistance from a	case that is talking
in general terms.

MR COSTIGAN:  Yes. I do know more in relation to that case

to say that it -

Waters(2)	101	6/2/91
McHUGH J:	Yes.	It is only my view of it anyway.

MR COSTIGAN:  It fits in with the submissions I have been

putting that when one looks at what is reasonable

one looks not just at the very limited impact on

the person who has had a requirement or condition

imposed but you look at the general circumstances.

That is all I wish to put in relation to that particular subsection. Of course there is another question which arises under section 17(5) and that

is whether there is something in the facts here

which amounts to a requirement or condition imposed

upon the disabled. Now, so far as that is

concerned, we adopt the analysis that His Honour

Mr Justice Phillips has set out in his judgment at

pages 445 to 451 and we say that where His Honour

has found that there was no requirement or

condition of the kind contemplated by

section 17(5)(c) that His Honour was correct and

for the reasons that he set there out.

What is involved in finding a requirement or condition is, first of all, to find that something

has been imposed in the context of the service that

is being offered that there is a requirement or

condition and, again, His Honour picks up the

argument that we put to him that although it is

comparatively simple in relation to the "scratch"

tickets to identify the requirement or condition,

namely, that the ticket must be scratched and

validated, that is one thing, but the cases which

deal on the whole with requirement or condition are

employment cases where, again, it is much easier to

say that is the requirement or condition for

accepting or maintaining employment. When one is

talking about a public transport service limited,

as I have, to the tram service, to talk about the

failure by the Corporation to offer a conductor as

a requirement or condition, we submit, is to not do

justice to the meaning of the words.

To say, in addition, that if one is able to

define what happened as a requirement or condition,

that it was something that was imposed on the

complainant by the Corporation is, we submit, not a

proper interpretation of that section. So we say

that for those reasons the Board was wrong in in

attributing subsection (5)(a) or finding that

subsection (5)(a) was satisfied. Of course, if

that is correct, one does not need to go to (b)

or (c), that the primary attack on the Board is the

findings of (a) and the subsequent finding of (c).

DEANE J: But the Board's decision reads as if it were

common ground before it that the removal of the

waters(2) 102 6/2/91

conductors did involve, in effect, the imposition

of a requirement or condition.

MR COSTIGAN:  It certainly was not common ground,

Your Honour.

DEANE J: Unless I have missed something, they do not refer

at all to the argument that it was not a

requirement or condition, or have I missed

something?

MR COSTIGAN:  No, I do not think Your Honour has missed

something.	They do not refer to that but it was
certainly the subject of heated debate.	I was not,

of course, at the original hearing except at the

very end on section 39 but it was always part of

the submissions of the Corporation that there was

not a requirement or condition under section 17(3).

DEANE J: Yes, I appreciate that. Thank you.

MR COSTIGAN: Turning back to my written submissions.

Paragraph 8 sets out the statement that I just addressed to His Honour Justice McHugh.

Subsection (9) deals with the defence
under 39(e)(ii). There are a number of things we

would wish to say about that.

My friend did refer to the provisions of

section 14(2) of the Act. Section 14 of the Act

was amended in 1989 and my friend read 14(2)(v) - I

think he actually said (c) but it is (v). It is a

section which says:

the Public Transport Corporation must have regard to the achievement of the following

objects:

(v)       To identify the transport needs of

disadvantaged groups, particularly people with

disabilities, and to implement appropriate

services within the level of funds

specifically provided for this purpose by

Government.

There is not the slightest tittle of evidence

before the Board as to the specific provision of

funds by government for this purpose and the Public

Transport Corporation's obligation in that regard is directly limited to the provision of funds and

there was no evidence of that at all. We would say

that it is just not possible in this Court to rely

on a provision of that kind in the absence of

evidence. If the fact is that there was no funds
specifically provided for this purpose, then the

Corporation had no authority to spend them.

Waters(2) 103 6/2/91

But the reality, we would say, about

section 39 - I might say, Your Honour

Mr Justice McHugh was referring yesterday to

section 31 and I think the section that Your Honour

read out was the earlier section before it was

amended and in the booklet that I have handed up

the very first page in the middle sets out the

section as it is for relevant purposes.

Section 31(1) repealed and substituted as from

1 July 1989, so the section for the purposes of

this action is as it is set out there, Your Honour.

McHUGH J: Yes, I see.

MR COSTIGAN: It is just slightly different.

McHUGH J: Well, no, it is - - -

MR COSTIGAN:	Each corporation must exercise its powers and
discharge its duties subject to the general
direction and control of the Minister or the
Director-General, and to any specific
d~rections given by the Minister or the Director-General.
BRENNAN J:	Do you have a copy of the section 14 that you have referred to?
MR COSTIGAN:	My learned friend, apparently, has got copies.

I am grateful to Mr North that he has had copies

made. Of course, section 39 contemplates that

there has been discrimination because it is not

necessary to go to it unless there has already been

a finding of discrimination. So one assumes, when

one goes to section 39, that there has been some

act which, in the absence of section 39, would be

deemed by section 29 to be unlawful. But it

excuses acts if they come within the provisions of

39(e).

It is our submission that the authority that

my learned friend cited to the Court yesterday of

Hampson v the Department of Education and Science,

which was handed down after the judgment in this

case, is of assistance in an understanding of the

interpretation to be given to sections of this

kind. And Hampson, we say, clearly makes a

distinction between decisions which are
discretionary decisions, not made by ministers but

by senior public servants and it said that to allow

a senior public servant who is given a discretion

by a minister to exercise that discretion without

attracting the operation of the Equal Opportunity Act and to obtain the benefit of the exemption is not permissible.

Waters(2) 104 6/2/91

On page 521, His Lordship Lord Lowry discusses the two alternatives and he quotes again from

Lord Justice Balcombe and at c he says:

'I can think of no construction of s.41 intermediate between the wide and the narrow construction which would meet the difficulties

considered above, nor was any suggested.
Further, there are sound policy reasons for
the narrow construction. If an enactment,

Order in Council or statutory instrument

imposes requirements compliance with which may

lead to racial discrimination, those

requirements can be debated in Parliament and

their justification considered there.

Similarly, if a minister of the Crown imposes a condition or requirement compliance with

which could lead to racial discrimination he

can be made answerable in Parliament for his

action.'

And later on at g, Lord Denning, Master of the

Rolls, is quoted as saying:

It seems to me that that would be the right

way to do it.	The minister should take
responsibility for it.	He can be asked

questions in Parliament about it. That is the

way in which the problem can be solved.

We do not in any sense suggest the decision in

Hampson is not correct. Indeed, we say it is a

correct decision, but it has made a clear
distinction between refusing to allow an exemption

section to go right down the line so as to cover

people other than ministers who are merely

exercising a discretion, and it recognizes that,

however, there are decisions, at least on

ministerial level, for which there is a different

kind of sanction, namely, a political sanction.

I say that because it is our submission that

Hampson does not provide any comfort for my learned

friend, that it is necessary to go back to

section 39, and when one does that one finds that

there is a direction in the clearest terms by the

minister to implement the decision.

I invite the Court to go to pages 410 and 411

of the appeal book. It is the beginning of

His Honour Mr Justice Phillips' judgment and he

recites in a page and a half the introductory

history:

On the 24th July 1989, Cabinet gave

approval to what was called "the MetTicket

concept" which centred on the passenger's

Waters(2) 105 6/2/91

responsibility to have a valid ticket at all

times when travelling. According to the

Cabinet -

and then that is set out. Now, the evidence was

given by Mr John King, the Director-General of

Transport, to the Board and accepted, indeed, not challenged, that the cabinet decision followed the

referral to cabinet of lengthy recommendations as

to the future of the metropolitan transit system,

and that those recommendations involved as key

elements a new kind of ticket system which was to

be originally a "scratch" ticket and the removal of

conductors on the new trams.

That went to cabinet. Cabinet made a decision

that the new system was to be implemented, and

following upon that decision the minister directed

that the Corporation implement that system. Now,

so far as trams without conductors are concerned,

there really is no half-way implementation. If the

direction is to introduce a system of trams that do

not have conductors, you cannot do that by putting

conductors on for certain times of the day as my

learned friend suggested. It was necessary for the

implementation of that decision to go ahead with

the recommendations which had been adopted by

cabinet and directed by the minister, and that

involved not only the implementation of a "scratch"

ticket system, but also the removal of conductors

from trams.

I, of course, stand here with my learned friend acting for the Corporation, not for the

Victorian Government and not for the minister.	The
Corporation is placed in a position where under

section 31 of the Transport Act it is required to

comply with the directions of the minister; and it

is required to comply with the directions to

implement a system of trams without conductors and

"scratch" tickets.

GAUDRON J: Is all this, Mr Costigan, predicated on the

assumption that the requirement or condition under

section 17(5) is that people be able to use

conductorless trams?

MR COSTIGAN: Yes, that is the condition and requirement

that my friend would - and the Board decided was

the appropriate requirement and condition.

GAUDRON J: That does not seem to be consistent with

Mr North's argument. The requirement or condition

consistent with his argument seemed to be that they

be able to use the tram service without assistance

boarding and alighting.

Waters(2) 106 6/2/91

MR COSTIGAN:  In one sense that is a limited description of

the requirement or condition but if that is the

requirement or condition it involves that there be
no conductors on the tram to help them and if the

corporation is complying with the direction of the minister by removing the conductors from the trams that the complainants are boarding then, of course,

there are no conductors there to help them alight
and accepting for the moment that my friend can

describe or define a requirement or condition,

whichever way he does it in the driver-only trams,

it has got to involve the conductor not being

there. And that is precisely what the Corporation

was directed to achieve.

So we would say that there is no middle path

that my friend can achieve which is not

inconsistent with the direction which the

Corporation was given. So that what we say in a

quite simple sense, Your Honour, if the Court

pleases, that fall directly within

section 39(e)(ii); that there is no possible basis

for suggesting that the original direction was not

a proper direction and, in any event, it was a

direction that the Corporation was bound to comply

with and even if it was a discriminatory direction, as in a sense it has to be before I even get to 39,

39 protects my client from being found to

unlawfully discriminate because it has done no more

and no less than comply with the direction that it

was given and it was necessary for it to comply

with that direction.

Now there are only two other short matters

that I wish to put to the Court. One is, going

back to section 29, we say that there are two

separate matters there, one is subsection (l)(a),

and one is subsection (l)(b), and that once one has found discrimination under section 17, there can be

unlawful discrimination, depending on the facts of
the matter, either be refusing to perform the

services, or in the terms on which the person

supplies the goods or performs the services.	And
we submit, quite simply, that when one looks

at (l)(b) and there is a description of "in the

terms", there has to be two sets of terms which can be compared; that is the terms which are imposed on

the discriminated and the terms which are imposed

on people who do not have that impairment, and in

that sense, one draws some interpretative comfort

from section 29(2)(b), which spells out that there

is a comparison to be made.

McHUGH J:  Does that not highlight the fact that when 39(e)

is talking about an act, that is to say that this

Act does not render unlawful:

Waters(2) 107 6/2/91

(e) an act done by a person if it was

necessary -

it must be referring to the act in section 29 and similar sections, and not section 17, so that the

relevant act is the terms on which you supply the

goods or the services.

MR COSTIGAN: 

It must be - 6 and 17 are still alive, of

course, because it forms part of the definition of
discrimination, but 29 is the section which makes
the act unlawful - - -

MCHUGH J: Yes.

MR COSTIGAN:  - - -and that is the section that 39 gives

protection from.	I accept, of course, what Your
Honour says.

McHUGH J: But that means that you have got to show- that the

terms on which you performed the service was

necessary if you were to comply with the provision

in section 31.

MR COSTIGAN:  Yes, I do have to do that, Your Honour, and it

is for that reason that I rely on the direction of

the minister to implement the driver-only trams,

because if that is what I do, then I am providing a

service which does not provide a conductor - - -

McHUGH J: Well, does it necessarily follow? You could

comply with the minister's direction, but give

different terms which would not discriminate.

MR COSTIGAN:  But that is not what has been complained

against. This complaint is brought against the

Corporation that we are not providing conductors

and it is alleged to be discrimination because the

absence of conductors produces a certain impact.

And that is where the Board makes a finding against

the Corporation that by failing to provide

conductors we have discriminated against the

complainants. conductors is a direct result and a necessary And that failure to provide result of the direction given by the minister.

McHUGH J: But to escape liability what you have got to show

is that the terms on which you perform the service

were necessary to enable you to comply with

section 31.

MR COSTIGAN:  But the particular part of the terms of

service, which is the subject of complaint, is that

there are no conductors.

McHUGH J:  I appreciate that.

waters(2) 108 6/2/91

BRENNAN J: It was the removal of conductors which is

identified as the act of discrimination?

MR COSTIGAN: That is so, Your Honour.

GAUDRON J:	And more precisely, at page 369, the term or the condition or requirement is identified as that they
use trams without the assistance or conductors?

MR COSTIGAN: Thank you, Your Honour, that is so. So, that

is the particular part of the service which is

alleged to be the discriminatory part and it has to

be alleged to be the terms on which we are

performing the service which is discriminatory.

And indeed, as I was putting two or three minutes

ago, there need, we say, to be two sets of terms,

one for the unimpaired and one for the impaired

which one can compare and we say there was not a

difference here, that 29(b) should not be applied.

TOOHEY J:  Mr Costigan, I must say I do not understand that.

Where do you find in section 29 a necessity for two

sets of terms. Is it not one set of terms and the

impact that that set of terms has on disabled

persons as compared with persons who are not

disabled?

MR COSTIGAN:  I understand, of course, in the 17(5)

application - - -

TOOHEY J:	No, no, I am speaking only of section 29.
MR COSTIGAN:	I go to section 29(2)(b) which picks up the expression "terms" and expands it and there it
clearly makes a distinction between:

on more onerous terms than the terms on which

the service could be reasonably be provided to

a person not having that impairment.

So, for the purposes of that section there is a

clear, we would say, distinction between two sets

of terms and that being there - - -

TOOHEY J:  I am sorry, are you looking at subsection (2)

when you say that?

MR COSTIGAN:  Yes I am.

TOOHEY J: But that is by way of exclusion?

MR COSTIGAN:	Yes, but I am doing that as an aid to interpretation, Your Honour, and we would say that
when one looks at 29(1) and (2) together there is a
pattern of, first of all:

Waters(2) 109 6/2/91

refusing to supply the goods or perform the

services -

that is (a).	When one goes down to (2)(a) you
find:

special manner -

(a) that cannot reasonably be provided by the

person performing the service;

they tend to match. When one gets to (l)(b) -

in the terms on which the person supplies the

goods or performs the services.

(2)(b) then talks about the comparison between -

more onerous terms -

to the impaired and the unimpaired.

DEANE J: But what if they said you could only come into the

shop rf you hop along for 100 metres on one leg

from the roadway to the entrance?

MR COSTIGAN: That would not be discrimination if the person

was unimpaired.

DEANE J:  What if he were impaired? On your argument

because they required everybody to hop along on one

leg and there were only one set of terms, it would

not be discrimination.

MR COSTIGAN:  It may be that it is then refusing to perform

the services.

DEANE J: Well then, everybody who hops along on one leg for

100 yards gets a discount of 10 per cent.

MR COSTIGAN: Yes, but the one-legged person cannot do it.

DEANE J: The terms are the same. Here, the blind person

cannot get on the tram.

MR COSTIGAN:  Your Honour, going back to the 10 per cent discount there are different prices. The

one-legged person has to pay a greater price than

the hopper because he cannot hop.	So there are two
sets of terms there.

DEANE J: Well then, if that be the argument, why are there

not two sets of terms here?

MR COSTIGAN: There are clearly two sets of terms for the

"scratch" tickets.

Waters(2) 110 6/2/91

DEANE J:  No, for the blind person who needs the conductor's

help to get on the tram.

MR COSTIGAN: Well, it is not a different term there,

Your Honour. What one then has is not an increased

price for the ticket or anything of that kind. It is the same terms being applied to all passengers,

namely, there is no conductor there. It has a

different impact.

DEANE J:  I will change the reference. Assume the business

is on the first floor and there is a ramp on which

a wheelchair can go, and there is a lift and there

are stairs and the proprietor of the business,

assume even because he does not like people in

wheelchairs cluttering up the aisle says, "As from

now I will close off the lift and I will close off

the ramp and everybody can get to my business up

the stairs".

MR COSTIGAN:  Yes, well they are the same set of terms, but

he is refusing the services to the people who

cannot use the stairs.

DEANE J: All he has done on your argument is he is carrying

on business without a ramp and without a lift.

MR COSTIGAN:  But he is, we would say, refusing to provide

the services to those people who cannot make use of

it.

DEANE J: Well then, the blind person needs the assistance

of the conductor to get on the tram and you say "No more conductors. Everybody can get on on their own

steam". What is the difference?

MR COSTIGAN:  We would say that we would then be refusing the service to the blind people. We are not

imposing different terms on them.	We are just
saying that service is not available.	Not in a
direct sense, but in an indirect sense.

McHUGH J: But in a case of indirect discrimination there

only ever is one set of terms, is there not,

because it is not concerned with disparate

treatment but with disparate impact. The same

terms are offered to everybody in the present case

but it is discriminatory because it has a discriminatory impact on the handicapped.

MR COSTIGAN:  Which is really, we would say, why it ought to

come under (a) not (b). What we would say is that

in those circumstances there is only one set of

terms; (b) is the appropriate subsection for terms,

and you must have two. Therefore, you go to (a)

and the appropriate complaint against the

Waters(2) 111 6/2/91

Corporation in those circumstances should have been under (a) not (b).

TOOHEY J:  I simply do not understand that, I must say,

Mr Costigan. I can see, I think, the way in which

subsection (2) works and how it requires a notional

set of terms as being those terms which - or

perhaps putting it the other way around, that by

reason of a person's impairment, if the provider of

the services can point to more onerous terms to

which he would be subject compared with those to

which he would be subject if there was no person

having an impairment, in which case you are really

talking about a notional set of terms as the basis
for comparison, then that might lead into
subsection (2) as an exclusion. But, putting that

to one side, surely subsection (l)(b) is concerned

only with one set of terms, namely:

the terms on which the person supplies the

goods or performs the services.

MR COSTIGAN:  But it is in the context of discrimination.

TOOHEY J: Yes, because of the impact but the terms on which

the goods are supplied or the services are
performed has upon a variety of people, some of

whom are impaired and some of whom are not.

McHUGH J:  Subsection (2) is looking at a special case, is

it not? Subsection (1) looks at it from the point

of view of the discriminator. Subsection (2) looks

at the matter from the point of view of the

impaired person who requires the service to be

performed in a special manner.

MR COSTIGAN:  Yes, it does, and where he requests that it

be done in a special manner and you then test

whether that is on more onerous terms than people

who are not requesting it.

BRENNAN J:  I do not understand why it is said that this is

a case of offering a service on terms.

is that, on your argument, as I understood it, of The service

conductorless trams.

MR COSTIGAN:	Yes.
BRENNAN J:	If it were otherwise the case that

Justice Deane was putting to you would mean that

everybody who is a tenant in a commercial building

that has no lifts or ramps is guilty of

discrimination.

MR COSTIGAN:  We have always dealt with it on that basis

because that is the basis upon which the

complainants dealt with it. They have said that

Waters(2) 112 6/2/91

the terms were discriminatory and we have attempted

to deal with that allegation.

BRENNAN J:  I see.

DEANE J:  Except that was not what I put to you. What I

put to you was the case where the person withdraws

the use of the stairs and the ramps, not the case

where there never were stairs or ramps.

MR COSTIGAN:  As I have said, Your Honour, I would prefer to put that case under (a).

DEANE J: Yes, I follow that.

MR COSTIGAN: It is difficult, we would say, to give much

application to (b) unless one does contemplate a

situation where there is more than one set of

terms. Of course, one gets more than one set of

terms with direction discrimination and there is no

difficulty about getting into (b) if you have a

direction discrimination problem, but in the
indirect discrimination, unless you are able, we

would say, to identify the two sets of terms, then

you really need to look at (a), giving it a broad

interpretation, to attack the operation of

section 29. It is really in that way I think we

put it, Your Honour.

The only other matter I really wanted to put

to the Court related to the originating motion

which I have described in my summary of submissions

as Submissions re Entitlements to Amend which may

not be an entirely accurate way of doing it.	It is
a simple matter in many ways.	In the order to

review there was no ground of the order to review

which raised the question of a defence under 29(2)

and an attempt was - we believe, a successful
attempt was made to bring that defence into the

litigation by using the procedure under the Supreme

Court Rules of originating motion. That matter was not determined by His Honour

Mr Justice Phillips because he had found for the

Corporation on a number of other matters and it was

not necessary, finally, to determine that matters.

It is only necessary to determine that matter in

this case if it is felt that there is a problem

under section 29(2) which can only be dealt with by

looking at it.

We feel comfortable with using 29(2) as an aid

to interpretation because that is not part of the

ground of appeal. But what we say quite simply

about our entitlement to include that ground is

that although the Equal Opportunity Act provides an

appeal akin to an appeal by way of order to review

Waters(2) 113 6/2/91

from a magistrate there is also an appeal available

under the Supreme Court Rules, the traditional

procedures as modified by the Supreme Court Act and

the General Rules of Procedure in Civil Proceedings

and we are not bound by the time limit.

It may, in fact, be an academic matter. put it in our summary. We

GAUDRON J: But, Mr Costigan, the issues raised by 29(2)

could not be determined without evidence, could

they?	You have got no findings to rely on by the
Board.

MR COSTIGAN: There is a series of difficulties,

Your Honour, about what Your Honour has just put to

me. One is, of course, that we say that the Board

asked itself the wrong questions under 29(2)(b) and
therefore did not consider the evidence in the way

in which it ought to have.

GAUDRON J: 

Does that mean that what you say is there is

this question still available to be argued by you
in front of the Board, everything else goes against

you?

MR COSTIGAN: 

If everything else went against me, this

Court, if it was minded so to do, could send that

back to the Board for consideration. Certainly, as

Your Honour put to me, there is not evidence which

would enable this Court to go into the facts to

determine whether that defence was available. So

it is really only on that very simple issue that we

would say if everything else went wrong and I was

not able to persuade the Court that my submissions

in other more substantive areas were correct, we

were not given the opportunity before the Board

properly to advance material under section 29(2)

because of their misunderstanding of the use of it,

and we ought to be given that opportunity.	It is
as long and as short as that, Your Honour.

DEANE J: But we would have to find that the Board went

wrong on 29(2).

MR COSTIGAN:	Yes.
DEANE J:	I follow the way you use 29(2) as an aid to

construction, but I have not followed why it is

that the Board went wrong on 29(2).

MR COSTIGAN:	We say that the Board said, at page 380 -
DEANE J:	Is this covered in your written submission of why

it went wrong?

Waters(2) 114 6/2/91

MR COSTIGAN: It is covered on page 3, paragraph 4, I must

say, Your Honour, not in an immensely clear

fashion. I hope I can clear it up now. At

page 380 the Board said, really starting at the

bottom of page 379, the Board turned its attention

to section 29(2), and then at the bottom of

page 379 said:

it is, therefore, encumbent upon the

Respondent to establish, on balance of

probabilities -

(i) that the Complainants require the

service -

to be provided -

in a "special manner" (in this context meaning

trams delivering the same service provided by

conductors and a non-scratch ticket system)

than the manner in which the service is or

will be provided to the general public, and

(ii) -

on page 380 -

the "special manner" in which the Complainants

require the service can, on reasonable

grounds, only be provided by the Respondent on

more onerous terms (to the Respondent) -

We say that the Board is wrong there, and that the

real question should be "onerous terms to the

discriminated".

And we say that flows from an examination of

29(2) and that when 29(2)(b) talks of:

on more onerous terms than the terms on which

the service could reasonably be provided to a

person not having that impairment -

the non-impaired and the terms to the impaired and	it is inviting the comparison between the terms to
that what was necessary was to look at the more
onerous terms to the applicant rather than the
respondent.

DEANE J: Is there anything that makes clear that that is

not a typographical error?

MR COSTIGAN:  I think this uniformity, that it is not,

Your Honour, but I will - - -

DEANE J: If that be so - - -

Waters(2) 115 6/2/91

MR COSTIGAN:  I am sorry, Your Honour, I cannot put my

finger on it, Your Honour, but my junior is

searching desperately.

TOOHEY J:  Why do you not read paragraph (b) of

subsection (2) as meaning on terms that are more

onerous to the provider of the services?

MR COSTIGAN:  Only because we say that the comparison that

is sought to be made under (2) is between the terms

that are imposed on the impaired as contrasted to the terms imposed on the unimpaired. So that one

really needs to identify what those terms are and

see how they are more onerous to the person who is

impaired.

TOOHEY J: Yes, I appreciate you say that, but why do you

say that?

MR COSTIGAN:  We say that simply because that, we would

submit, was the more appropriate meaning of the

clause.

TOOHEY J: But is not subsection (2) looking at a situation

in which a person with an impairment calls upon the

provider of services to provide them in a

particular manner and the subsection provides that

where the provider of the services can show that he

cannot reasonably provide services in the special

manner demanded or that he can provide them but on

terms that are going to be much more onerous than

those which he would otherwise provide, then the

subsection operates to provide an answer to what

would otherwise be discrimination.

MR COSTIGAN: With great respect, that does not determine

right but it is a question of whom they are more

the question Your Honour put to me because what

onerous.

TOOHEY J: Well that was built into my answer, the way in

which I put it to you I thought.

the services says to the person impaired, "You're The provider of

asking me to provide services on terms that I

simply cannot do".

MR COSTIGAN:	"That is going to cost you five times".
TOOHEY J: No, no.	"It's going to cost me,'me' the provider

of the services".

MR COSTIGAN:  "No, I'm going to charge you five times extra.

If we put in appropriate entries into trams we are

going to have to charge you instead of $1 a ticket,

$5.

Waters(2) 116

TOOHEY J:  I see what you are saying. "I can only do this.

I can only provide you the service you ask of me by

charging you extra".

MR COSTIGAN:  By charging you that and that is not

reasonable.

McHUGH J: That is made plain by the fact that the service,

on more onerous terms, must be to the person

discriminated against when you compare it to the
second limb than the terms on which the service

could reasonably be provided to a person not having

that - - -

MR COSTIGAN:	Yes, Your Honour.
DEANE J:	But the discussion with Justice Toohey indicates

that my assumption of a typographical error may

well be wrong.

MR COSTIGAN:  I am delighted to hear that, Your Honour. My

learned junior tells me it was agreed in any event.

I think that is right.

GAUDRON J: But is not the final sentence of that section on

page 380 to the effect that nobody was asking

anybody to supply services in a special manner and,

therefore, 29(2) does not operate at all?

MR COSTIGAN: Quite frankly, we do not understand that,

Your Honour, because the whole crux of the case was

that the complainants were asking the Corporation

to supply services to them in a special manner by

providing conductors for them.

GAUDRON J:  No, they were asking them to supply services to

the public in a particular way. There was no

suggestion that every individual should be provided

with his or her own conductor nor was there any

suggestion that they should be provided with

particular trams with conductors.

MR COSTIGAN:  But what they were asking is that they be

provided with a tram service which eliminated the discrimination which had been imposed on them and

that involved requiring the corporation to do

something additional to what they had decided to

do, namely to put conductors back on trams, and in

that sense it was a special manner.

In any event, we would say that the kind of

submission I am putting to Your Honour is really a
submission that can be made or could have been made

to the Board independently of their categorization

of what was being asked by the complainants as a

special manner or not a special manner. If one

looks at the complaints and one decides that that,

Waters(2) 117 6/2/91

in reality, is requesting a special manner, then

that is an appropriate description of it.

The real difficulty about this section

is ..... which has bedevilled section 17(5) and this

section. The Board allowed the Corporation to

canvass economic and financial considerations in a

subsection where we submitted it was not relevant

and not allow us to do it under section 17(5) when

we said it should have. So we actually got the

evidence before the Board but they heard it under

the wrong section. I do not want to say, with great respect, any more about section 29(2)(b)

and, indeed - - -

DEANE J:  You say Justice Phillips went wrong on

section 29(2)?

MR COSTIGAN:  No, we do not say Justice Phillips went wrong:

the Board went wrong.

DEANE J:  But he did not embark on it and saying he had

real doubts about whether he was entitled to?

MR COSTIGAN:	Yes, so he made no decision on that.
DEANE J:	But you say his doubts about whether he was

entitled to were wrong?

MR COSTIGAN:  Yes. We say that he could have heard it

because we brought our originating motion pursuant

to the Supreme Court Rules which gave us the right
to do that and that he had chose not to decide it

because he had found for us on other substantive matters and, indeed, if this Court was to uphold

his decision on those substantive matters it is

equally unnecessary to look at that section.

DEANE J: These things get very difficult when one goes away

to write a judgment if one reaches them. Now, am I

correct that the only point involved is that the

Board was wrong by reason of the construction

indicated to the respondent in parentheses and that

that being so the Board has never addressed the

question?

MR COSTIGAN:  Yes, Your Honour, with respect, that is

correct. The conclusion that the Board has not

properly addressed the question in accordance with

law is the conclusion we seek to support by

reference to their incorrect view of the section.

That is correct, Your Honour, and it is simply on

that issue.

GAUDRON J:  You have got to establish though that your

originating motion was good?

Waters(2) 118 6/2/91

MR COSTIGAN:  Yes, I do.

GAUDRON J: That is to say that a quite general provision

overrode the special provisions in the Equal

Opportunity Act?

MR COSTIGAN: Yes, and we have done that. Indeed, at

pages 484 to 489 this matter is discussed by

His Honour. He sets out the additional grounds

which are 29(2)(b) and he sets out the argument

that we addressed as to whether we were entitled to

raise those questions and on page 487 he refers to

the particular sections of the Magistrates' Court

Act and to Order 56 of the Rules of the Supreme

Court.

The Magistrates' Court Act under section 88

does set out a procedure which is without prejudice

to any other right or remedy and Order 56, we said,

was another right or remedy and there were 60 days
instead of 30 days so we were within time.

His Honour set out the argument in the decision and at the end expressed doubt as to

whether the argument could be made out and he chose

not to decide it.

GAUDRON J: Except, is that not, in effect, a dismissal of

your originating motion and should you not have

sought special leave to appeal from it?

MR COSTIGAN: If it was a dismissal, yes, Your Honour, I

would have needed to seek special leave, but

His Honour specifically did not decide the matter

and we took the view that in those circumstances we

could cope with it by a notice of contention and

that is what we have done.

BRENNAN J:  Is there any judgment or order against which an

appeal lies?

TOOHEY J: There was a dismissal of the originating motion,

was there not, Mr Costigan? If you look at the

foot of page 489 - - -

MR COSTIGAN: Yes, I am sorry, Your Honour. It was not by

consent. His Honour found it unnecessary - - -

TOOHEY J:  No, I was not suggesting it was by consent. I

am simply drawing attention to what His Honour said

he was doing.

MR COSTIGAN: Yes, I must say it is difficult not to read

those words as a dismissal.

TOOHEY J: Yes, it is quite difficult.

Waters(2) 119 6/2/91

MR COSTIGAN: In those circumstances, I would seek formally

special leave to appeal against that dismissal and

to adopt, if that application was granted, the

grounds of the notice of appeal to be found in the

notice of contention.

TOOHEY J:  The only qualification that perhaps ought to be

made is that if you read on His Honour begins by

saying what he thinks he should do, and then says

that he was asked by the parties if they had the

right to make further submissions as to the form of

any order. It may be that there has been no formal

order in terms of the originating summons.

MR COSTIGAN:  I gather there has been an order. What I

think both parties were anxious not to do was to

ask His Honour to dismiss by consent because that

would have caused other problems.

DEANE J: There is an order that is not in the appeal book,

is there, because the order at page 492 does not

deal with the originating summons?

MR COSTIGAN:  I think that must be right, Your Honour. I

think it is probably an order - there was a summons taken out to have the originating motion struck out

and both of them were dismissed and that is an

order in that action which is not within the appeal

book.

DEANE J:  Mr Costigan, I hate to do this to you on this

point, but if you go to page 489, His Honour spells

out, I am looking at line 5:

Moreover, even if they were, strictly

speaking, available to the Corporation, I

would have a discretion as to the grant of any

relief under 0.56 and the fact that the

Corporation is seeking under 0.56 to circumvent the time limit imposed by s.49(4)

would doubtless be material to the exercise of

that discretion.

Now, is that not something that we would have to

face up to on this originating summons, 29(2)

point?

MR COSTIGAN: All I would say to that, Your Honour, is this

that tpe existence of a right of appeal is

irrelevant to the exercise of a judicial discretion

whether to grant prohibition for excess of

jurisdiction and if His Honour has taken into

account that there might be an appeal as a basis

for the exercise of his discretion, he has

exercised it wrongly.

Waters(2) 120 6/2/91

BRENNAN J: If His Honour has dismissed it without really

giving the matter consideration the appropriate

order, if special leave were granted to you, would

be to send it back to His Honour to consider, would

it not?

MR COSTIGAN:  I suspect that is what the Court would wish to

do if special leave was granted.

TOOHEY J: Could we have a copy of the order that was made

on the originating summons?

MR COSTIGAN:  Yes, I will take steps to get that. I am

sorry, Your Honour, I have got nothing further to

put to the Court by way of general submissions.

McHUGH J:  What about section 31 of the Transport Act, the

validity of the order?

MR COSTIGAN:  Your Honour, I thought I had dealt with that,

in general terms, in my submissions. One of the

matters that my friend referred to, or relied on, were the provisions of the Transport Act setting out the necessity to take into account the problems

the disadvantaged might have with transport and I

indicated - - -

McHUGH J: Yes, I know, but what you said in passing, that

is the whole of your argument on that point?

MR COSTIGAN:	Yes.
MASON CJ:	Thank you, Mr Costigan.

MR COSTIGAN: If the Court pleases.

MASON CJ:  Mr North. How long will your reply take,

Mr North?

MR NORTH:	Your Honour, I would not have thought more than five-odd minutes roughly.
MASON CJ: Yes, very good.

MR NORTH: Firstly, I wonder if I might hand to the Court

copies of section 93 of the Magistrates' Courts

Act, which is in response to the question asked by

Justice Brennan yesterday in relation to the powers

of the Supreme Court to remit to the Board. Such a

power is found in section 93(3)?

MASON CJ: Thank you.

MR NORTH: There are only two matters on which I seek to

reply.	The first is my learned friend's submission
on the	section 29(1) point which is the matter
raised	by paragraph 1 of his contention.

Waters(2) 121 6/2/91

In our submission, section 29(l)(b) does not

depend on the existence of two sets of terms.	It
is the enactment of indirect discrimination provisions and we simply adopt the findings of
His Honour at page 444 to that effect.

We further say that section 29(2) cannot be

used to assist in the interpretation of

section 29(l)(b) because it is a separate exemption

provision and whilst it contemplates two sets of

terms, they are not two sets of terms which go to

the definition or existence of discrimination but

rather the manner of avoiding discrimination after

it has occurred, in other words, a way of excusing
it by providing special terms to meet the

requirements of the disabled.

McHUGH J: Indeed, it assumes that there only are one set of

terms at the time of discrimination.

MR NORTH:  Yes, Your Honour. The other matter is in

relation to the section 29(2) point, the matter

that my learned friend last dealt with.

In our submission, my learned friends are not

entitled to raise this matter for the reason that

it was inevitable that the originating motion would

be dismissed and that flows from the interpretation

of section 49(4) of the Equal Opportunity Act. In

our submission, what that does is that even if it

allows alternative avenues of appeal - as to which

I will get to in a moment - but even if it does, it

restricts the exercise of the right to the time

limit of 28 days set out and that time limit was

not complied with in this case.

That is clear when one goes to the terms of

section 88 of the Magistrates' Court Act which provides the order nisi procedure but the time

limit in section 88 for that procedure is 30 days

from the date of the decision. So that it was

obviously contemplated in section 49(4) that the

Equal Opportunity Act would apply to some aspects

of section 88 but not all. It does not pick up,
for instances, the time limited in section 88.

Similarly, we would submit that it does not pick up those words which my learned friend would

seek to rely on in section 88, namely whether any

other remedy is provided by law or not. Our second

proposition on this aspect is that section 49(4)

makes an exclusive avenue of appeal against a

decision of the Equal Opportunity Board, an avenue

as set out in section 88 by way of the order nisi

procedure.

Waters(2) 122 6/2/91

If that is wrong, or if both of those propositions are wrong, then the difficulty that is

faced by my learned friends, we would submit, is

that the determination of the originating motion is

a matter which requires discretionary judgments as

His Honour points out. And His Honour said that

there were two matters of discretion that he would take into account. The question would arise as to

how that matter would be dealt with here, would

this Court exercise the discretion and, if so, on

what material. The only sensible solution would be

that the matter be returned to His Honour.

But we say that, in any event, even if none of

those arguments are right, there is no point in
this matter being ventilated because the Board was

right in its interpretation of section 29(2).

ttOnerous conditionstt is a reference to onerous to

the PTC and, finally, we say that even if that

interpretation is wrong - - -

DEANE J: But is not that submission quite contrary to the

interests of your clients? Are you saying that all

the Board has to say is that it will cost me an

extra of dollars to provide special requirements

which your clients' disabilities demand and it has

satisfied subsection (2)?

MR NORTH:  No, Your Honour, because there is the requirement

of reasonableness as well. It is a question of

whether on reasonable grounds the service can only

be provided on more onerous terms. If it is not

reasonable to require the discriminator to, for
instance, expend money on providing this special
service, then he is exonerated. But it is a

question of reasonableness, and indeed - - -

DEANE J:  One can see how on reasonable grounds only it be

provided to your clients, for example, on a more

onerous basis. But what you are saying is that if

the Public Transport Corporation says, tton

reasonable grounds I can only provide these things

at a greater cost to me", that is all it has to

say.

MR NORTH:  Providing it can establish reasonable grounds it

gets the exemption.

DEANE J: But it only has to establish reasonable grounds

for the greater cost to itself.

MR NORTH:	Yes.
DEANE J:	In other words, if it cannot show that it can do

it at the same cost it does not have to do it, or

if it cannot be shown it can do it at the same cost

it does not have to do it, because if that were so

Waters(2) 123 6/2/91

on reasonable grounds it could only do it at

greater cost.

MR NORTH:	But it might be in the circumstances reasonable for it to do it at greater cost, and that is the
concept which we say section 29(2) is getting at.
DEANE J:	I think, Mr North, you are misreading the context of "on reasonable grounds".
MR NORTH:	Your Honour, we say, with respect, that it is

the concepts analogous to that set out in, say,

section 21(4)(g) where discrimination in employment

is excused, discrimination on the grounds of

impairment is excused if, looking at

subsection (i), by reason of the person's

impairment, special services are required in the

circumstances and they could not reasonably be made

available.

DEANE J:  But the wording is not even comparable. look at section 29(2)(b) "on reasonable grounds" is
related to "only be provided by the person
performing the service on more onerous terms". If you

Now, if they cannot be provided otherwise than on

more onerous terms, obviously reasonable grounds

exist for providing them on more onerous terms.

MR NORTH:  Your Honour, I see the difficulty about the

construction.

DEANE J:  That means if your submission is correct and

"more onerous terms" means it costs a few dollars

more to the Public Transport Corporation, that it

is very much against the interests of your client,

I would have thought.

MR NORTH:  Yes. Your Honour, in any event, in this case we

submit that the fundamental difficulty for my

learned friends on section 29(2) is, as my learned

friend put it, the Board did consider all the

arguments about the reasonableness of the Board

engaging in the expense of retaining the existing

system and, as a matter of fact, it found that the

savings that were claimed would simply not be made,

and that is at page 385 at line 6:

the Board finds that the Respondent has not

proven that the savings claimed over the

period ..... would, in fact, be saved.

Now, on that basis, on whatever view you take of

section 17(5) or section 29(2)(b) and whatever

matters needed to be considered, from whatever

viewpoint, the Board has made a fact finding in this case, that the savings - that was the only argument put by the PTC - the only argument was

Waters(2) 124 6/2/91

rejected on the facts. If the Court pleases, those

are the submissions in reply.

MASON CJ:  Thank you, Mr North. The Court will consider

the matter.

AT 12.46 PM THE MATTER WAS ADJOURNED SINE DIE

Waters(2) 125 6/2/91