Waters & Ors v Public Transport Corporation

[1991] HCATrans 28

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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

Waters(2) 1 5/2/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA TUESDAY, 5 FEBRUARY 1991 AT 10.18 AM

Copyright in the High Court of Australia

MR A.M. NORTH, QC: If the Court pleases, I appear with my

learned friend, MR H. BORENSTEIN, for the
appellants in appeal No M41 of 1990, and for the

respondents in appeal M44 of 1990. (instructed by

Slater & Gordon)

MR F.X. COSTIGAN, QC: If the Court pleases, I appear for

the respondents in appeal M41 of 1990 and for the

appellants in the other appeal. (instructed by

A.G. McLean, Acting Crown Solicitor). Could I

indicate to the Court that the Public Transport

Corporation does not wish to proceed with M44

of 1990. We informed the Registrar of that this

morning when we received those instructions, but we

have not yet formally filed with the Court the
notice of discontinuance. That will be done during

the day, if the Court pleases.

MASON CJ: Very well. Yes, Mr North.

MR NORTH:  If Your Honour pleases, we have handed to the

Court a folder of documents - - -

MASON CJ: Yes, we have that.

MR NORTH: That includes, Your Honour, the outline of our

submissions as item number 2 - does Your Honour see

there is an index on the first page?

MASON CJ:  Yes. I think somebody had taken the outline out

of the folder.	I have it independently, but that
is - - -

MR NORTH:  Yes. The first document is a chronology which I

will not be going to, but it sets out the stages of

the litigation for the convenience of the Court;

secondly, the outline of submissions. On page 3 is

a document which converts page references in

His Honour Mr Justice Phillips' judgments,

references to transcript and references to the

Equal Opportunity Board's decision to the page

references in the appeal book before this Court,

balance of the documents are documents which we	for the convenience of the Court, and then the
notified the Court in our list of authorities would
be provided to the Court. They include, as item
number 4, the Equal Opportunity Act 1984, which is
the Act with which this case is concerned, and item 5 is the first equal opportunity legislation in
Victoria. We are not as enlightened as that entry
appears to make us; it was not 1877, but 1977 when
that Act was introduced.

If the Court pleases, the appeal arises out of

a decision made by the Public Transport Corporation

in Victoria towards the end of 1989 to introduce a

new system of ticketing requiring the use of

Waters(2) 2 5/2/91

"scratch" tickets and to remove conductors from

trams. No doubt it is known to the Court that the

Public Transport Corporation is the provider of

public transport in Victoria.

The appellants lodged complaints in the middle

of December 1989 and they are in the first volume

of the appeal book at pages 1 to 34, and I will not

take the Court to them in detail. His Honour sets

out in his judgment, and I will not take the Court

in detail to the passages which describe the

disabilities which each of the nine individual

appellants have and the consequences which that had

on them in the use of the system, but I do wish to
draw the Court's attention to this fact, that it

has not been in dispute throughout this case that

the impact of the decision of the Corporation was

to cause severe hardship to the nine individuals

and the members of the organizations which form the

other appellants, that the hardship which was

occasioned was hardship to which other members of

the travelling community were not to suffer and, at

worst, the hardship was a total exclusion from the

public transport system for those people.

That impact was virtually conceded in the

hearing before the Equal Opportunity Board.

His Honour Mr Justice Phillips in the judgment

appealed from referred to the fact by quoting

verbatim from the Board's decision at pages 418,

line 15, to 420, line 14. I will not go to it but

what he says is, »Here is what the Board said about

the disadvantages suffered by the disabled as a

result of the system" and there is no issue before

him on that fact.

That passage related to the »scratch» tickets.

In relation to the removal of conductors,

His Honour again extracted from the Board's

decision its findings of fact at page 420, line 19,

to 421, line 30. The Board, Your Honours, found

that the Corporation had committed acts of unlawful

discrimination. His Honour held that the

Corporation had not.

We submit, Your Honours, that it is curious on

the face of it, as a first impression, that the

appellants who have by common acceptance been

placed in a position of disadvantage are not

entitled to a remedy under the Act so far as

His Honour was concerned.

We wish to address five arguments to the Court

in the appeal. Three of them concern the

construction of the provisions of the Equal

Opportunity Act 1984. In relation to each of those

arguments we make the general submission that

Waters(2) 3 5/2/91

His Honour failed to apply to the Act a generally

facilitative approach which is appropriate for the

interpretation of this sort of legislation. That

is the first argument that we outline in

paragraph 1 of the outline.

We submit that the Equal Opportunity Act 1984

is legislation in the nature of a human rights code

and therefore calls for a broad interpretation to

advance its purposes. We rely on the decision of

the seven members of the Canadian Supreme Court in

Re Ontario Human Rights Commission v Simpson-Sears

Limited, (1985) 23 DLR, 4th edition, 321. That was

a landmark decision in Canada in which the anti-

discrimination legislation of Ontario was construed

so as not to require an intention to discriminate

and so that it covered adverse effect

discrimination or indirect discrimination on a wide

set of words, perhaps distinguishable from the

method adopted in the Australian jurisdiction.

MR NORTH:  That was the case in which an employer required

employees to work on Saturdays. One employee, a

Seventh-Day Adventist, was adversely affected in

distinction to other employees by reason of her

religious conviction that Saturday working was not

permitted.

What we rely on, in particular, is the passage

at page 329 at point 1, where in the judgment of

the court it is said that:

The accepted rules of construction are

flexible enough to enable the Court to

recognize in the construction of a human

rights code the special nature and purpose of

the enactment ..... and give to it an

interpretation which will advance its broad

purposes. Legislation of this type is of a

special nature, not quite constitutional but

certainly more than the ordinary - and it is

for the courts to seek out its purpose and

give it effect.

TOOHEY J:  Mr North, you do not by any chance have the

supreme court report reference, do you?

MR NORTH:  I am sorry, no, Your Honour, I do not.

MASON CJ: Page 547, it is suggested. Yes, that is it.

MR NORTH:  Your Honour, that case was cited by members of

this Court in Street v Queensland Bar Association,

168 CLR 461 in support of the proposition that

section 117 of the Constitution should be construed

as applicable to adverse effect or impact

discrimination as well as direct discrimination and

Waters(2) 4 5/2/91

I refer without going to it to the passages, or the adoption, in the judgment of the Chief Justice at

page 487 point 9; in the judgment of

Mr Justice Brennan at 508 point 2; Justice Gaudron

at 566 point 9; Justice McHugh at 581 point 9.

And we rely to similar effect on the judgment

of the majority in the case of Re Saskatchewan

Human Rights Commission v Canadian Odeon Theatres

Ltd, (1985) 18 DLR (4th) 93. This case concerned

discrimination by a theatre operator against a

disabled man in a wheelchair where the theatre

operator required that person to sit at the front

of the theatre to accommodate the wheelchair. At

page 108 point 9 of the report we rely on this

passage:

The interpretation of a statute which

guarantees fundamental rights and freedoms and

which prohibits discrimination to ensure the

obtainment of human dignity should be given

the widest interpretation possible.

And on page 109 at point 3:

Generally human rights legislation has been

given a broad interpretation to ensure that

the stated objects and purposes are fulfilled.

A narrow restrictive interpretation which

would defeat the purpose of legislation, that

is, the elimination of discrimination, should

be avoided.

We rely, if the Court pleases, on a decision to the same effect although in a different context.

That is the case of Waugh v Kippen,

(1986) 160 CLR 156. In that case the Court was

concerned with the interpretation of a regulation

whereby a male employee was not permitted or

allowed to carry a weight so heavy as to be likely

to cause a risk of injury. In the joint judgment

of Chief Justice Gibbs and Justices Mason, Wilson

and Dawson at page 164 point 3, it was said: A construction of the rule that would

require an employer to have regard to the risk

of injury to a particular worker finds support

in the character of the Act as legislation
concerned with furthering industrial safety.

In that character it should be construed "so as to give the fullest relief which the fair meaning of its language will allow".

Then Their Honours discussed the impact of the fact

that the regulation had appeal consequences on that
interpretation, and concluded at point 10 in the

third last line:

Waters(2) 5 5/2/91

It should not be construed so strictly as to

deprive the worker of the protection which

Parliament intended that he should have.

It is with this approach in mind that we go to the first construction argument. We deal first

with the issues that arise under section 39(e)(ii)

of the Equal Opportunity Act because, as was

pointed out by Justice Gaudron on the special leave

application, success on one or other of those

arguments is essential for the appellants and is,

in effect, a hurdle over which we must go before

the Court would be concerned to consider any of the

other arguments.

Can I take the Court to the outline. The

Court will notice that we have included in the outline - and I will not therefore go to it on each

occasion - a reference to the notice of appeal and
the ground to which each argument is addressed,

the reasons in the Equal Opportunity Board that

concern that argument and the pages at which

His Honour Mr Justice Phillips deals with the

argument in relation to the matter. The way we put

it on the first argument relating to section

39(e)(ii) is this, that section 31(1) of the

Transport Act is not "a provision of any other

Act" - and those are the words of section

39(e)(ii) - is not a provision of any other Act for
the purposes of section 39(e)(ii) because on the

proper construction of section 39(e)(ii), such

other provision must expressly in its terms require

an act of discrimination.

Section 31(1) does not expressly require the

minister or director-general to give directions

which are discriminatory in effect, nor does

section 31 require the Public Transport Corporation

to comply with such directions.

BRENNAN J:  Do we have a copy of the transport legislation?

MR NORTH:	I was just, Your Honour, going to the relevant provision, and what I would hope to do was to rely
on its appearance in His Honour's judgment, rather
than the whole of the Act.  The Act, in toto, is
not on our list.

BRENNAN J: Could I ask whether or not there is a provision

of the Act which prescribes the duty of the

Transport Commission to provide transport?

MR NORTH: There is, and from my recollection, Your Honour,

part of, if not all, of the objects and duties of

the Commission are set out in His Honour's

judgment - and I will have the page reference found

for Your Honour. Can I take the Court, whilst that

Waters(2) 6 5/2/91

is being done, to section 39(e)(ii) of the Equal Opportunity Act; it is in volume 3 of the appeal

book at page 460, line 30, at the very bottom of

the page. Section 39(e) reads:

This Act does not render unlawful -

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

necessary for the person to do it in order to

comply with a provision of -

(i) an order of the Board;

(ii) any other Act -

and that is the relevant subsection for our

purposes -

(iii) an instrument made or approved by or

under any other Act.

Section 31(1) of the Transport Act is set out on

page 460 at line 17:

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

directions given by the Minister or the

Director-General.

His Honour held that section 31(1) of the

Transport Act was a provision of any other Act for

the purposes of section 39(e)(ii) and providing the

conduct of the Corporation was necessary to comply

with the ministerial direction given in or about

July 1989, the conduct of the Corporation was not unlawful.

We submit that section 31(1) is not a

provision of any other Act for the purposes of

section 39(e)(ii) and we do so for these reasons.

We submit that the Equal Opportunity Act applies to all citizens of Victoria including the Crown - see

section 5. Section 39(e)(ii) prescribes that for

conduct under other legislation to be exempt it

must fall within the prescribed exception. The

exception is that the conduct or act must be

necessary to comply with the other statute. In our

submission, that means that the other statute must

in express terms require the act of discrimination

to be done.

TOOHEY J:  I am just having some difficulty with that

submission, Mr North. It seems to rely on two

propositions. You appear to be saying at one stage

that the Transport Act was not "any other Act" for

the purposes of section 39 of the Equal Opportunity

Waters(2) 7 5/2/91

Act. Is that a submission that stands, as it were,

on its own?

MR NORTH:  It is the submission that I seek to make now on

its own but it is not the entirity of our

submission on 39(e)(ii).

TOOHEY J:  No, I understand you have a different submission,

that for section 39(e)(ii) to operate the other Act

must expressly authorize an act of discrimination?

MR NORTH:  Yes.

TOOHEY J: But that is a second step, is it not?

MR NORTH:  Your Honour, our proposition is that

section 31(1) of the Transport Act is not a

"provision of any other Act" for the purposes of

section 39(e)(ii).

TOOHEY J: Well, that is a composite submission. You are

not saying, as I understand it, that the Transport

Act is not itself any other Act.

MR NORTH:	No.
TOOHEY J:	But that there is no provision of that Act,

namely the Transport Act, which falls within

section 39(e)?

MR NORTH:	Yes, Your Honour.
TOOHEY J:	Thank you.
BRENNAN J:	What is it then which brings within the phrase

"any other Act" or "a provision of any other Act"

some statutory provisions but not other?

MR NORTH:  That is right, Your Honour.

BRENNAN J: What is it? What is the criterion?

MR NORTH:	The criteria is whether the other Act in express terms, on its face - that is one element -
expressly on its face; the second element is requires an act of discrimination to be done. It
might perhaps assist - I have an example to go to
which might demonstrate the sort of statutory provision that we say falls within our construction
of the Act.  We concede that it is a construction
which is narrow.  We submit it is open. We
acknowledge that a wide construction is also open
but we say in the light of the way in which one
approaches an Act of this sort that the appropriate
construction to be adopted is the narrow one and
that is where we rely on the decision in Hampson in
the House of Lords.
Waters(2)	5/2/91

DEANE J: It is not suggested that the minister's direction

was unlawful?

MR NORTH: It necessarily has to be, Your Honour, yes. It

is in this way, Your Honour: section 39(e)(ii)

describes legislation which is exempted from the

Equal Opportunity Act. If a provision of another

Act does not fall within section 39(e)(ii) it is

subject to the Equal Opportunity Act.

McHUGH J: It is not legislation, is it, it is acts that are

exempt?

MR NORTH:  I am sorry, Your Honour?

McHUGH J: It is not legislation, it is an act which is

exempt, is it not?

MR NORTH:  Yes, Your Honour, an act done to comply with a

provision of. The question therefore one asks in

relation to the direction is, "Does section 31(1)
require the minister of director-general to make a

discriminatory direction?" It is only if it does

that section 39(e)(ii) exempts and it is only then
that the direction is freed from its unlawfulness.

It is otherwise subject to section 39(e)(ii) and is

unlawful.

DEANE J:  I do not think you have followed my question.

What I asked you was whether it was suggested that

the minister's direction as such was unlawful

because it discriminated in a manner that was

prohibited by the Act?

MR NORTH:  Your Honour, the answer, I think, is both yes and

no. It is yes for the purpose of this submission,

for the purpose of the construction submission, but

we have a second submission. If our submission is

wrong and the direction was lawful, then we say

that if you look at the direction that in any event

it was not necessary to commit discriminatory acts

to comply with it. That is a separate submission

which I will get to in due course.

But for the purpose of the moment the

submission is that yes, the minister's direction is

unlawful, was unlawful, simply because it is only

lawful if it falls within the exemption in

section 39(e)(ii), and it does not.	Does that
answer Your Honour's question?

DEANE J:  I do not think so, but let me not take you out of

your course.

DAWSON J:  You simply say that the Transport Act does not provide for discriminatory acts any more than it provides for criminal acts.

Waters(2) 9 5/2/91

MR NORTH: Absolutely, Your Honour, precisely.

McHUGH J: That is a different argument. You have to put

your argument in a different way though, do you not? You have to say that having regard to the

existence of the Equal Opportunity Act and its

policies that when the minister exercises his
powers under section 31 he cannot exercise them in

a way which will conflict with the provisions of

that Act.

MR NORTH:  Your Honour, I am perfectly happy to do it that

way. It seemed to be a bolder argument.

McHUGH J:  I do not know whether you can get that argument

running, but it seems to me that it is a better

argument than the one you have just been putting.

MR NORTH: Well, I am happy, Your Honour, for it to be put

that way. It seemed to me a bolder argument, and

being a less bold advocate I rather sought to stick

to one which we thought followed from a

construction of section 39(e)(ii).

DEANE J:  But implicit in that argument is the assertion

that the Act applies to a direction of the

minister. Is that the argument?

MR NORTH: It is implicit in the argument.

DEANE J: Well, is it so?

MR NORTH:  We would say it was, Your Honour, but we are not

wedded to that position. I mean, that is the basis

upon which this argument is put and that is the

position we have, yes.

DAWSON J:  Well, that is a different argument to the one

that I was putting to you, the simple argument that

the Transport Act simply does not provide for

discriminatory acts, and that is the argument I put

to you at the beginning.

MR NORTH:  It is really the same argument, with respect, arrived at by a different route. We look at the

Equal Opportunity Act and say that unless an act is

exempted by the provision of section 39(e)(ii), it

is subject to the Equal Opportunity Act.

TOOHEY J: But the way in which you are putting that

argument so far, Mr North, involves an assertion as

to the construction of paragraph (e), an assertion

which so far has not been supported by argument,

and then a reference to section 31 of the

Transport Act with a view to showing that that section does not meet the criteria of paragraph (e)

Waters(2) 10 5/2/91

but you really have to make good your first step,

do you not? Where are these criteria to be found?

MR NORTH:  Your Honour, from the words of the section. It

is possible to read, in our submission,

section 39(e)(ii), when it talks of a provision of

any other Act, as being in the circumstances a

provision which expressly in its terms requires the

doing of the act of discrimination. That is a

narrow construction, a construction which limits

the exemption based on the purposes of the Act.

The words on their face can either have a wide or a

narrow construction and we suggest, with respect,

that the narrow one is the appropriate one.

BRENNAN J:  What is the act with which we are concerned

here?

MR NORTH:	Your Honour, it is the giving of the direction.
BRENNAN J:	The giving of the direction?

MR NORTH:  I am sorry, there are two acts: It is the

giving of the direction by the minister. The acts

with which the case is concerned are the acts of

the Public Transport Corporation.

BRENNAN J: Well, then how does that dichotomy arise if it

is the acts of the Public Transport Corporation we
are concerned with. Is that not the act which is

relevant for the purposes of your argument?

MR NORTH:  Yes, it is, Your Honour, but, we submit, that the

act of the Public Transport Corporation in

compliance with a direction only gains exemption if

the direction is a lawful direction, so that

we - - -

McHUGH J: But lawful in what sense, lawful for the purpose

of section 31 or lawful in some way for the purpose
of section 39?

MR NORTH: Well, we would say, one and the same thing,

Your Honour.

McHUGH J: Well, I do not think they are. I think they are

very different things altogether.

MR NORTH:	If a direction is unlawful by reason of the operation of section 39(e)(ii) because it is not
exempt from the Equal Opportunity Act because it is
not a specific requirement in an Act to do a
discriminatory act, then it is simply an unlawful
direction and cannot bind the FTC to comply.

McHUGH J: Well, supposing it is an act that was necessary

to be done. If the authority had refused to obey

Waters(2) 11 5/2/91

the minister's direction, would it have been in

breach of section 31 of the Transport Act?

MR NORTH:	No.
McHUGH J:	Why not?
MR NORTH:	No because, Your Honour, the section 31 of the

Transport Act requires compliance with a direction which is a lawful direction.

McHUGH J: Well, that comes back to what I put to you before

which you call the bold argument. This is really

arguing about the construction of 31, is it not?

MR NORTH:  No, Your Honour, not the way we put it. It

might be quite the less attractive way of putting

it and I do not want to really promote it beyond

its worth, but the way we do put it, Your Honour,

is that the lawfulness of the minister's direction

is determined by asking the question whether, being

a discriminatory direction, it gains exemption

under section 39(e)(ii). In this case it does not

for the reason that section 31(1) does not require
the minister to give a discriminatory direction.

That being the case it is not a direction lawful

under section 31(1), it is not a direction which

binds the PTC under section 31(1).

McHUGH J:  I hear what you say but it really does seem to

me at the moment that you have to distort the

language of the section to come with that result

because the section simply invites the question,

"Was this discriminatory act necessarily done by

the person because he had to comply with the

provision of another Act?"

MR NORTH:  Yes, Your Honour, but perhaps you have to read

words into section 39(e)(ii) for our purposes, but

the sense of it and the words that we would ask the

Court to read in are to the effect that an act is

not rendered unlawful if it is done by a person if

it was necessary for the person to do it to comply

with some other statutory warrant which

specifically required that discriminatory act to be

done. That, with respect, we would not see as a

distortion of the language. Rather it is exactly

what you would expect this Act to be all about,

namely to be saying if Parliament somewhere else

has specifically required a discriminatory act to

be done, then, of course, the Equal Opportunity Act

will not apply to it and Parliament needs to sit

solemnly and to prescribe in an Act, for instance,

that no Aborigines should be permitted to ride on

public transport trams.

Waters(2) 12 5/2/91

If it does not, if no such specific

legislative provision is made, in our submission,

the Equal Opportunity Act cannot be outflanked by a

non-specific requirement to do an act.

McHUGH J:  Supposing the minister sought a mandamus

against the Board which refused to do the act in

this context, on what ground would he fail?

MR NORTH:  He would fail because his direction was

unlawful.

McHUGH J:  Well, that means it is unlawful under

section 31.

MR NORTH:  It is unlawful by reason of the operation of

section 39(e)(ii).

McHUGH J:  But section 39(e)(ii) is not directed to the

minister in any shape or form.

MR NORTH:  Well, Your Honour, the Act binds the Crown and

the giving of the direction by the minister, we

submit, is the subject of section 39(e)(ii).

DEANE J:  But section 39(e)(ii) does not make anything

unlawful.

MR NORTH:  No. It gives exemption.

DEANE J: Yes, which means - I must be missing something,

but why is not your first point, if what you say be

correct, that the minister's direction is contrary

to the Equal Opportunity Act and therefore unlawful

and therefore null and therefore you never reach

section 39(e)(ii)?

McHUGH J:  Just as though the minister directed them to go

and hold up a bank.

DAWSON J:  You are really cutting down section 31(1). It

cannot mean that the Corporation is bound to obey

the direction of the minister or director-general,

lawful or unlawful, and it is section 29 of the

Equal Opportunity Act which makes it unlawful.

MR NORTH:	Yes.
DAWSON J:	That is a simply argument.
MR NORTH:	Yes, well it is simple and I am very happy to

embrace it.

DAWSON J:	And there is no other act which makes it lawful.
MR NORTH:	I am very happy to embrace it. Our concern

was

Waters(2) 13 5/2/91

DEANE J: But, if I can take you back, that assumes

something that nobody has said anything about, and

that is that the Act does apply to a direction of

the minister.

MR NORTH:  The Equal Opportunity Act?

DEANE J: Yes, to render a direction which requires

discrimination unlawful. I mean, say for example,

here the minister had directed that no blind person was to be allowed to travel on the Victorian public transport system, because they were just a

nuisance; is that a lawful or an unlawful

direction?

MR NORTH:	An unlawful direction.
DEANE J:	Now, is that because the Act applies to

ministerial directions?

MR NORTH:  Yes.

DEANE J: Well then, why does it? I mean, what is the

section that says it does?

MR NORTH:  Your Honour, section 5 of the Equal Opportunity

Act -

BRENNAN J: Is it right to say, Mr North, that thus far in

this litigation no challenge has been made to the

validity for the purposes of section 31(1) of the

direction that has been given?

MR NORTH:  Not really, Your Honour. The argument that we

put to His Honour necessarily involved the

proposition that the minister was bound by the Act,
by the Equal Opportunity Act, and that his

direction was unlawful. Now, I have only this

reservation, that at one stage His Honour did

directly ask me, "Do we allege that the direction

was unlawful?" My response was, "No." That

response was wrong, but it was excusable, I would

say, because it was at the stage when we were

moving on to the argument about "necessary to

comply", and I had in my mind that the basis for

the "necessary to comply" argument was that the

direction was, in fact, a lawful one, but look at its terms and did it fall within the Act? But it

was necessarily implicit and at times explicit in

the argument before His Honour that - - -

BRENNAN J:  It seems to me that if there had been an attack

made upon the validity of the direction, two things

might have been expected: one was that the minister
might have sought leave to intervene in some way in

order to uphold the validity of the exercise of

his power, and the second is that the appreciation

Waters(2) 14 5/2/91

that His Honour had of your argument at the bottom

of 466 and 467 would have been very different

indeed.

MR NORTH:	I am sorry, Your Honour.
BRENNAN J:	The appreciation that His Honour would have had

of your argument, as he records it, at the bottom
of 466 and 467, would have been very different

indeed.

MR NORTH:  Yes, that is so, Your Honour, but we would say,

as to that, that His Honour really did not give to

us the benefit of the thrust of the argument. I

mean, there was no point in focusing on that one

response which was just wrong; it was inconsistent

and there were plenty of occasions in which it was

put to His Honour. Indeed, this argument was

opened with the proposition that the minister was

bound by the Equal Opportunity Act and what he had

done was unlawful. It was a necessary step in our

argument, but I cannot resile from the position

that His Honour may have been, to some extent,

misled by that confusion.

BRENNAN J: It seems to me that the argument proceeded, and

perhaps you might comment on this, but as I read

the judgment it seems to me that the argument

proceeded on the basis that the minister's

direction was voidable but not void.

MR NORTH: Well, in fact, when His Honour asked the question

directly, my response was something to that effect
that we had not, in effect, thought through a

direct answer to His Honour's question but that

what the answer might involve was a consideration

of whether the direction was instantly - or never

a valid instrument or direction, or whether it had

some life until set aside. But it was really by

way of just speculation on the run, in effect, and

with respect, a fair view of the flow of our

argument, in my submission, would have regarded it

as an argument that the minister's direction was

unlawful. But, I mean, I must admit that that has

got with it some - it is a perception that comes

from my side of the bar table.

GAUDRON J: Might I ask this to be quite clear. The

unlawfulness of the minister's direction, in your

submission, comes from section 29(1) of the Equal

Opportunity Act, does it?

MR NORTH:	Yes. Section 29(1) taken with 17(5). Section 17(5), Your Honour, being the
definition - - -

Waters(2)	15	5/2/91
GAUDRON J:	I understand that.	But you then have to say, do

you not, that the minister provides goods or

services?

MR NORTH:	Yes, Your Honour.
DAWSON J:	And in that regard you may be assisted by

section 4(6).

MR NORTH:  Yes. And, of course, "services" is defined on

page 5 as:

services provided by a public authority or

local government authority.

Or, in ( d) :

services connected with transportation or

travel.

GAUDRON J:  And, you do not put it by reference to any

implied limitation in the Transport Act, such as, for example, an implication that directions would only be given reasonably and a discriminatory

direction is, prima facie, to be seen as

unreasonable unless it is otherwise supported?

MR NORTH: Well, Your Honour, we would rely on that as well.

BRENNAN J: Well, no doubt, you wish to rely on that as

well, but when you come here without having given

the court below an opportunity to consider the

argument it is making the proposition rather

difficult to accept, is it not?

MR NORTH:	Yes, Your Honour, except I suppose for this, that this is a case that has come without an appeal to the Full Court by reason of the statutory provision
as then existed so that, necessarily, the state of
refinement is less than one might expect where the case has come through that channel and at the end
of the day, if an argument is a legal argument
on any facts, it would be our submission, that this alone does not depend for its success or acceptance Court should entertain it now, even if the case was
not put quite that way before His Honour.
BRENNAN J:	And even in the absence of the minister whose

decision is being attacked?

MR NORTH: Well, Your Honour, it is not as though the

minister really was quite absent because there was

an agreement between the parties that the question

about directions, the validity of the directions,

would be held over until after the hearing of the

merits before the Equal Opportunity Board and that

is what happened. The merits, absent any argument

Waters(2) 16 5/2/91

about 39(e)(ii), were heard and then the argument

about 39(e)(ii) proceeded separately after the

Board had found that there was discrimination. On

that occasion the present appellants had subpoenaed

the minister to give evidence in relation to the making of yet another direction which is not the

subject of these proceedings. The minister was

represented on that occasion by Mr Costigan who

appeared also for the PTC so that he was of course,

in a sense, there on a limited brief for the

minister, that is, the question of whether the

subpoena should be answered or not, but none the

less he was there and had this question been one of

concern to the minister then no doubt it was an
occasion on which he, appearing for the minister
could have either sought an adjournment or put

arguments about the matter. It is not as if the

minister was entirely unaware of - - -

BRENNAN J: You have two argument to put: one is that the

minister's direction was invalid;	the second is if
the minister's direction was valid	none the less it
does not fall - the acts that were	done pursuant to
it do not fall within 39(e)(ii)?

MR NORTH:  Yes. The sort of provision that, on our

argument, falls within 39(e)(ii) is a provision

like the provisions in section 132 and section 70

of the Labour and Industry Act which are behind

tab 7 in the folder. This is a form of the Act

which is now repealed but nevertheless illustrates
what, in our submission, is required for the Equal

Opportunity Act to be displaced. Section 70 and 71 are relevant but a particularly good example is, say, 71(3):

In a factory in which there is carried on -

a number of things including -

(b) the making or finishing of salt -

no person shall employ any female under

sixteen years of age.

Now, that is a prohibition which is discriminatory

in effect and is, in our submission, the type of

statutory provision which is envisaged by

section 39(e)(ii).

In our submission, the reasons why

section 39(e)(ii) should be given a very limited

effect is that in the context of this Act the area

of operation of section 39(e)(ii) is extremely

wide; it covers and applies to all forms of

discrimination and, hence, a wide reading will have

the effect of exempting behaviour over a wide range of activities covered by the Equal Opportunity Act.

Waters(2) 17 5/2/91

And that is in distinction to an exemption which

appears, for instance, in a section of the Act

which deals with a discrete or single area of

discrimination. This section is within Part V

which is general exemptions applying across the

board.

MASON CJ: Mr North, in response to questions put by members

of the Bench, you have indicated that you propose

to put submissions which are designed to

demonstrate the invalidity of the minister's

direction?

MR NORTH:	Yes, Your Honour.
MASON CJ:	Now, that is an issue that certainly on the face of the judgment delivered by Mr Justice Phillips
and on the discussion in the special leave
application appears not to have been dealt with
specifically alone. Before you proceed further
with those arguments the Court should ascertain from Mr Costigan what his attitude is towards those issues~ So, if we can interrupt your address at this stage to ascertain from Mr Costigan what he
has to say about those arguments.
MR COSTIGAN:	I must say we did not anticipate on this

appeal that we would have to defend the validity of

the ministerial direction but rather to deal with

it in the way in which His Honour

Mr Justice Phillips dealt with it and, indeed, the

way in which the argument was basically put before

His Honour Mr Justice Phillips, namely on the

assumption that the direction given by the minister

was a valid direction did that operate within the

meaning of section 39(e)(ii) so as to exempt the

Corporation from the acts which it performed

pursuant to that direction.

So, in a strict answer to which Your Honour

has put to me, we have not come here either ready

to argue the validity of the ministerial direction

or instructed on behalf of the minister to make

submissions in that regard.

I do not feel that it would be difficult for

me, with a little time, to put together the

arguments I would wish to put in relation to the

validity of the ministerial direction, but I would

be doing so on instructions from the Public

Transport Corporation who is my client and I would

not be doing so on behalf of the minister who would

be quite unaware of the fact that this issue had
been raised and who I assume, instructed as I am by

the Victorian Government Solicitor, would like to

know that that matter was being raised so that he

could determine his attitude.

Waters(2) 18 5/2/91

I cannot put it higher than that, Your Honour,

because I am limited by my brief and my

instructions.

MASON CJ:	Yes, thank you, Mr Costigan. anything about that, Mr North?	Do you want to say
MR NORTH:	Could I just say this, Your Honour?	The passage

at page 477 of His Honour's judgment froze, in my

submission, into relief the fact that the argument

now put was essentially put. At line 19 he says:

Mr North argued that the Minister and the

Director-General should not have so directed

because that in itself offended against the

provisions of the Equal Opportunity Act -

and that is indeed what I did put. Then he goes on

to say, relying on the answer I gave -

although he did not claim that on that account

the direction was unlawful.

My answer was an obvious non sequitur as is that

sentence. It just is not possible for the first

part of the sentence to be right and the second to

follow. If we put that the director-general

should not have directed because that offended

against the provisions of the Act, then the

direction must have been unlawful. There was no

other conclusion possible because an offence

against the Act is that the act of discrimination

is unlawful.

BRENNAN J: Is it not open to say, "But we abstain from

challenging the validity on that ground and are

content to proceed on the footing that the

direction was valid"?

MR NORTH:	Yes, and that is what we did in relation to the other argument, but not in relation to this
argument.  You cannot really do it in relation to

this argument. We could not see how this argument

could succeed if the minister's direction was

lawful.

DEANE J: There is another problem, is there not, and that

is that does not cover the matter raised with you

by Justice Gaudron, that is, assume against

yourself that the Equal Opportunity Act does not apply to the direction by the minister, but that the Transport Act should be so read that the

minister's powers of giving directions do not

extend to directing somebody to do something which

would otherwise be contrary to the specific

provisions of the Equal Opportunity Act?

Waters(2) 19 5/2/91

MR NORTH:  Yes.

DEANE J: In that case, it is not a matter of the minister's

direction offending against the provisions of the

Equal Opportunity Act. It is the minister's

direction being ultra vires the minister. That, as

I follow, is what Justice Gaudron put to you and what you embraced.

MR NORTH:  Yes, Your Honour is right. I have nothing

further to say on this aspect, if Your Honour

pleases.

MASON CJ: Well, at this stage you want to proceed with the

argument that you initially embarked upon at any

rate?

MR NORTH:	Yes.
MASON CJ:	Very well, you proceed with that argument.
MR NORTH:	In asking the Court to adopt a narrow

construction of section 39(e)(ii), I was putting

that section 39(e)(ii) falls within the general

exceptions provision and therefore it has a wide

operation in the Act; and any wide operation given

to section 39(e)(ii) consequently has a very great

impact on the operation of the Act, and I put that

the Labour and Industry Act was the type of Act

envisaged by section 39(e)(ii).

We next submit that provision such as section

31(1) of the Transport Act are very common in

Victoria.	We had wanted to prepare a list but it
had not been done.	The count that we did was that

there were in excess of 50 Acts which provide powers

of direction to the minister in similar terms to the

Act in question so that the impact of a wide

interpretation would be, it is submitted, to allow a person like the Director-General of Transport or the Minister for Transport to gain for his department	virtual exemption from the operation of the Equal	Opportunity Act and it is our submission that given
that consequence it is likely that Parliament intended that there need be a specific statutory
warrant, a direct express and statutory warrant for that sort of discriminatory behaviour.

In other words, there is a public policy

argument in favour of the narrow construction,

that is to say, the giving to Parliament of

ultimate control over the designation of conduct

which will come within the exemption of the Act.

BRENNAN J:	Mr North, is there any real problem about narrowness or breadth of construction?	One takes
Waters(2)	20	5/2/91

the acts which are complained of and that is the

removal of conductors and station assistants in the

use of "scratch" tickets and one inquires whether

those acts were done by the transport commission;
and the answer is yes, and then the question is

whether those acts were necessary for the transport

commission to do in order to comply with the

provisions of section 31(1). Where is the

narrowness or breadth problem arising there?

MR NORTH:  It is in what the meaning of "provision of any

other Act" is in 39(e)(ii). We submit that it is

to be read down to require that the direction - - -

BRENNAN J: Direction is not a provision of the Act.

MR NORTH:  The power to give the direction is a power to

give a direction to do a discriminatory act.

BRENNAN J:	But they are not involved at this stage with the question of the power to give the direction, that
is the validity of the minister's decision. We are
concerned with whether or not the act that was done and complained of was necessary for the commission
to do in order to comply with the provisions of the
specific statutory provision, namely 31(1) of the
Act. For myself I do not see at the moment where
there is room for argument about narrowness or
breadth of interpretation but perhaps I am missing
something.
MR NORTH:	It is a question of how you characterize the provision of the other Act and you ask the question
whether section 31(1) can be characterized as such
a provision. It can only, we submit, be so
characterized if it requires discriminatory
behaviour to be done. Section 31(1) does not
require the PTC to comply with directions which are
discriminatory in effect. That is the way we put the argument, Your Honour.

BRENNAN J:  But it does. I would say that it does.

MR NORTH: It does not, Your Honour, if you read into

39(e)(ii) a restriction which limits its operation

to provisions of other Act which in their terms

require the doing of a discriminatory act. In

other words, 31(1) does not say that the Public

Transport Corporation shall comply with directions

which are discriminatory in effect. If it did our

argument would not lie. But it is a section which

is broad and open, capable of sanctioning on one

view discriminatory acts or not and we say by the

application of section 39(e){ii) it does not

sanction the doing of discriminatory acts in its

terms and therefore it does not attract the

Waters(2) 21 5/2/91

exemption of 39(e)(ii) and that is the narrow

meaning.

The wide meaning is that the provision of any

other Act which has as its consequence the doing of

a discriminatory act is covered by the exemption

and then section 31(1) would fall within in it.	We
say, given the two interpretations, one should
adopt the narrower.

Could I take the Court to Hampson, (1990) 2

All ER 513 - it is not yet reported in the

authorized reports - because it seemed to us that

it really embodied the argument that we were

putting. This case was not cited to His Honour by

either side. It was published in the All England

Reports on 29 June, the hearing before His Honour

concluded on 13 July. We certainly had not found

it by 13 July and there is a real question whether

indeed it had arrived in Australia by that time,

but 29 June was the publication date of the report.

This was a case which involved the

interpretation of an exemption provision which was

different but analogous to section 39(e)(ii) and

Race Relations Act by resort to the exemption provision.

the House of Lords held that the Department of operation of the

The case arose when Mrs Hampson, who was a

teacher of Hong Kong Chinese race, had taught in

Hong Kong, had qualified as a teacher in Hong Kong,

she wanted to teach in the United Kingdom, to do so
she had to be qualified. Regulations made by the

Minister for Education provided that she would be

qualified if the Secretary of State approved her
qualification and notified her of the approval.

The secretary refused to approve her qualification

and the question was whether, if the refusal did
amount to racial discrimination, it was excused

because the refusal was made "pursuant to the
regulations".	On page 515 at paragraph e the

relevant provision of the Race Relations Act is set

out.

Section 1(1) of the 1976 Act provides, just

reading the relevant parts:

A person discriminates against another in

any circumstances relevant for the purposes of

any provision of this Act if ..•.. (b) he

applies to that other a requirement or
condition which he applies or would apply

equally to persons not of the same racial

group as that other but - (i) which is such

that the proportion of persons of the same

Waters(2) 22 5/2/91

racial group as that other who can comply wit~

it is considerably smaller than the proportion

of persons not of that racial group who

can ..... (ii) which he cannot show to be

justifiable irrespective of the colour, race,

nationality or ethnic or national origins of

the person to whom it is applied; and (iii)

which is to the detriment of that other

because he cannot comply with it.

Then section 12(1) and (2) made discrimination

unlawful, in other words, it defined the

circumstances in which discrimination would be

unlawful and reading the relevant parts it

provided:

It is unlawful for an authority or body which can confer an authorisation ..... which is

needed for ..... engagement in a particular

profession ..... to discriminate against a

person ..... by refusing ..... his application for

it -

and -

authorisation ..... includes ..... approval.

The exemption section was section 41, which is set

out at the bottom of page 515:

Nothing in Parts II to IV shall render

unlawful any act of discrimination done -

and (b) was the one relevant for the case -

in pursuance of any instrument made under any

enactment by a Minister of the Crown.

The relevant enactment was regulations made under

the teacher regulations which are set out on

page 516 starting at paragraph f:

Regulation 13(1) provided -

reading the relevant pieces -

no person shall be employed as a teacher at a

school unless he is qualified therefor as

mentioned in Schedule 5;

Schedule 5 is then set out and again the relevant

parts are:

A person shall be qualified to be

employed -

I am reading from 1(1) -

Waters(2) 23 5/2/91

as a teacher at a school for the purposes of

Regulation 13 ..... if ..... (a) the Secretary of

State being satisfied that he is such a person

as is mentioned in paragraph 2, on or after

8 April 1982 he has been notified in writing,

by or on behalf of the Secretary of State,

that he is a qualified teacher -

And then in paragraph 2 of the schedule provides
for what a person referred to in regulation l(a) is

and in the particular case here, at line 516(j) it

was:

a person who ..... has successfully completed a

course ..... approved as comparable to a course

within sub-paragraph (a) -

and approved, going back to the first and second

line of the regulation, meant:

approved by the Secretary of State for the

purposes.

After the Secretary of State had refused

Mrs Hampson approval of her course, she complained

to the Industrial Tribunal of both direct and

indirect discrimination. The tribunal found that

there had been no direct discrimination and that

matter was not further pursued. The tribunal found

that there was no requirement or condition

necessary for indirect discrimination but that

anyway section 41 protected the respondent and

further that the Act was justifiable.

MR NORTH:  The matter then went to the Employment Appeal

Tribunal where it was found that the tribunal was

wrong on the question of requirement or condition

but otherwise correct so that the exemption

applied. Then an appeal was taken to the Court of

Appeal which held that the appeal tribunal was wrong on the question of justification but by 2-1 majority held that the respondent was protected by section 41 with a dissent by Lord Justice Balcombe.

It was in the House of Lords the judgment of

Lord Justice Balcombe which was accepted and the

decision of the Court of Appeal reversed. That

appears from page 518 at point d. The question was

framed this way - I am reading from about line 4

between a and b:

Balcombe LJ framed the question clearly

when, having summarised the respondent's point

on section 41, he said .....

Waters(2) 24 5/2/91

'This argument, which succeeded below, is

controvertible, if the words "in pursuance of
any instrument" are apt in their context to
include, not only acts done in necessary
performance of an express obligation contained

in the instrument (the narrow construction)

but also acts done in exercise of a power or

discretion conferred by the instrument (the

wide construction).

And he concluded that:

Both constructions are possible.'

He went on, and the House of Lords adopted this

part of his reasoning:

'While, therefore, both constructions are

possible, I accept that the wide construction

is the more natural meaning of the words used.

I turn, therefore, to consider whether there

is anything in the context which leads to an

indication that the narrow construction is

here correct.'

Then, His Lordship goes to the context at page 518,

paragraph h, and says that the context militates in

favour of the narrow construction. He says:

In view of the wide sweep of these provisions,

the exceptions ought therefore, I suggest, to

be narrowly rather than widely construed where

the language is susceptible of more than one

meaning.

The words "in pursuance of", he says, are

distinguishable from "by virtue of" and then on 519

between paragraphs a and b, he concludes:

The inference to be drawn is that

and we rely on this in particular -

if the discriminatory act is specified in an

enactment, order or instrument, but not
otherwise, it is done "in pursuance of" that

enactment, order or instrument and protected

by section 41.

McHUGH J: But this case is a long way removed from the

present case, is it not? I mean, this case Hampson

would be comparable if we were dealing with the

direction of the minister in this case. You see,

what you are really dealing here with is the case

of the secretary. The secretary had a choice. He
could approve the course or not and he decided not

to and then he said, "Well, my decision, even if it

Waters(2) 25 5/2/91

was discriminatory, was pursuant to an instrument",

and the House of Lords rejected that construction.

MR NORTH:	Yes.
McHUGH J:	But here you have got a direction from the

minister to the respondent and the question is, in

doing the act which the respondent has done, was it

necessary to do it in order to comply with

section 31?

MR NORTH:  Your Honour, this decision is helpful in arriving

at the conclusion that the direction was unlawful.

That is the way we put it, and of course, that then

raises the problems that we had to deal with a

moment ago because the minister was empowered to

give directions by section 31(1), just as the

Scretary of State was empowered to approve. The

exemption did not apply to the Scretary of State

because he had a power which he could exercise in a

discriminatory way or a non-discriminatory way, and

that did not come under ''in pursuance of".

Similarly here, the minister was not required to give directions which were discriminatory and hence

he does not come within the exemption, and that is

the way we put it.

McHUGH J: But that really means that this discussion about

section 39 is irrelevant, and we are really

discussing section 31 of the Transport Act.

MR NORTH: Well, section 39 is relevant in the sense that it

is like section 41 here. It was section 41 which

determined the lawfulness of what the Secretary of

State did. If the secretary did not gain the

advantage of the exemption, his action was

unlawful.

McHUGH J:  I do not understand that because it was his act,

but we are not dealing with the minister's

act - discriminatory act - we are dealing with the

Board's discriminatory act.

MR NORTH: Well, that is why I said, Your Honour, that we

use this case in support of the preliminary

step - that is, that the direction was unlawful.

If it was unlawful it did not need to be complied

it, therefore it did not fall within 39(e)(ii). At

paragraph b on page 519, His Lordship goes to the

purpose and meaning of the 1976 Act and finds that

the wide interpretation is irreconcilable with the

purpose and meaning of the Act and for the very

reason that we put a moment ago, that it would

allow the minister or director-general to confer

virtual immunity on a vast range of governmental

and semi-governmental bodies without the sanction

Waters(2) 26 5/2/91

of direct parliamentary warrant. That is made

clear on 521, paragraph b:

There is a sound argument, based on

public policy, for drawing the line in this

way. I refer to the need and the opportunity for parliamentary scrutiny.

So, with respect, we submit that since

His Honour made his decision, Hampson has given new

support for the proposition for which we presently

contend here. The education regulations require

the secretary to make a decision; they did not

require him to make a discriminatory decision and

the exemption only applied where the instrument in
express terms required the act of discrimination to
be done. In the absence of an express requirement
the exemption did not apply. We say similarly in
this case, section 39(e)(ii) should be construed as
allowing an exemption only where the other Act
expressly requires the act of discrimination in

express terms.

Can I now take the Court to His Honour's

reasons on this issue. His Honour, on the bottom

of page 466, commencing at line 23, sets out the

submission that was made:

But Mr North contended that, even if the Board

were wrong in its view of s.31(1), s.39(e)(ii)

should nevertheless be read to cover only the

situation where some specific conduct, which

otherwise might amount to discrimination under

the Act, was expressly authorized by statute

in so many words.

Then he refers to the Labour and Industry Act that

I have taken the Court to -

and this, he submitted, was not so where the

Corporation could point only to directions

which themselves were not embodied in an Act.

His Honour then says that he sees that as a far too

restrictive reading and sees no reason why the Act

should be given such a restrictive reading. We

have put the arguments why, in our submission, a

restrictive reading should not be given.

His Honour then at lines 12 to 18 says that in

answer to the submission that -

the whole of the transport ministry could be

removed from the purview of the Equal

Opportunity legislation and that would defeat

the purpose of the legislation and the

protection that it offered to the general

public.

Waters(2) 27 5/2/91

He says as to that -

that is to overstate the position.

We gather from that that what His Honour meant was

that whilst it was true that a simple direction

could remove the transport ministry from the

purview of the legislation that it was overstated

to say that that would defeat the purpose.	We do
not perceive that he was saying - that it was

overstating it to say the director-general could,

in fact, exempt the ministry from the legislation.

But he said that that being the consequence, it was

to overstate it that that was to defeat the purpose

all manner of people for the purpose of producing

some option papers which are to be assessed by the

minister.

So, in respect of driver-only trams, the question of the final form of the system, if any,

is still quite up in the air. So far as the

"scratch" tickets are concerned, orders are

necessary in order to prevent any further or other

direction which might, in some way, contravert or

change the direction which is currently in place.

Finally, our application is that the Court

allow the appeal, but there are various other

possibilities apart from simply not allowing the

appeal. There are midway positions and the point I
seek to make is that we would ask, if it arose,

that matters such as reconsideration of

reasonableness under section 17(5)(c) be remitted

to the Board; or say, for instance, if we were

successful on all the arguments other than, say,
the form of orders, that that would be a matter

appropriate to return to the Equal Opportunity

Board.

BRENNAN J:  What are the powers of the supreme court under

the Magistrates' Court Act which would permit that

to be done?

MR NORTH:  Very wide, and certainly wide enough to cover

remitting matters. Indeed, His Honour talks about

remitting. I am not able to point Your Honour to

the section because I do not have the Act here, but

I do know that the provisions are extremely wide.

Waters(2) 72 5/2/91

MASON CJ: Well, perhaps you could interpolate a reference

to those sections during the course of

Mr Costigan's address.

MR NORTH:  I shall, Your Honour. Those are the submissions

for the appellants, if the Court pleases.

MASON CJ: Yes, Mr Costigan. Can you transform chaos into

order?

MR COSTIGAN: That is an invitation I would like to accept,

Your Honour, and I would like to assist that by

handing up copies of my submissions.

MASON CJ:	Thank you.
MR COSTIGAN:	Those submissions, if the Court pleases, do

cover essentially the matters that have been dealt
with by my learned friend and I was proposing to

deal with them generally in the order in which they

appear in the document, but in view of the limited

time left this afternoon, if it is convenient to

the Court, I might turn directly to the last matter

that my learned friend has been talking to because

my submissions by then are very short. They are

found in the document that I have handed up.

On page 6, paragraph 10, where we say simply

that the orders of the Board by reason of their

being vague, uncertain and unintelligible were null

and void. Then we have done little more than pick

up what His Honour Mr Justice Phillips had said and

adopted for the purposes of the argument what he
has there said.

We would like to say, in addition, this. First of all, we do not accept what my friend's

memory has led him to put to this Court, that there

was no objection to the form of the orders when

they were made. I have a very distinct

recollection in my gentle manner of jumping up and

down in horror at the orders that were proposed,

but I regret to say, to no avail. But be that as	it may, they are the orders that were made by the
Board and the orders that are the subject of this
litigation, and we would say it really is not quite
fair to the Corporation to say to it, perhaps not
accurately, that "You are a wealthy Corporation
and, therefore, you can easily find the $2,000 and
the $500 a day that you will have to pay for
continuous use, a breach of this order". The fact
is that once the procedures that my learned friend
has set out have been gone through, the making of the order and any breach of it is a criminal offence and it carries with it criminal penalties.

It was for that kind of reason that His Honour

Mr Justice Phillips, we say, quite accurately said

Waters(2 73 5/2/91

that if a corporation is to be visited with

criminal sanctions as a result of an order, it is

only fair that it know precisely what it is that it

is not supposed to do so that there can be no doubt

in the minds of it and its officers that if it does

it in breach of the order it will face the sanction

that the Act says.

Some of the matters that have fallen from the

Court during my learned friend's submission

indicate some of the very real problems in officers

of the Corporation understanding from the terms of
the order precisely what it is that they were

forbidden to do or, indeed, if they were able to

avoid the criminal sanctions that flow from a

breach of the order, was it required of them that

they should take some positive steps such as

His Honour Mr Justice Brennan suggested, ringing up

the complainants each morning to discover what

their travel arrangements were so that they would

know, for that day at least, whether they were

likely to have to pay a fine of $500 for not

providing a conductor.

In one sense, it is easy to be glib about this

but it is a serious matter. There are orders of
the Equal Opportunity Board and as long as they

stay officers of the Corporation are faced with

possible criminal sanctions.

We adopt, without further explanation, the

manner in which His Honour Mr Justice Phillips

analysed the orders and pointed out the

deficiencies in them and we adopt and accept what

he said about the results that flow from that.	And
we do not really wish to say any more about that
submission.

What I would propose to do and if this is a

convenient time - - -

GAUDRON J: Mr Costigan, do you say anything about the power

of the Board to make the orders?

MR COSTIGAN: Well, the power of the Board is to be found

under section 46, Your Honour, and one has to see

whether there is within that section power to make

the kinds of orders that were made; it is 46(2):

The Board, after hearing the evidence and

representations ..... may make one or more of

the following orders:

(a) It may order the person -

and I take it that is the Corporation -

Waters(2) 74 5/2/91

with respect to whom the complaint was made to

refrain from committing any further act of

discrimination against the complainant.

GAUDRON J:	Would that not seem to be linked back to section 17(5)? Is not the only act of
discrimination here involved the imposition of a
term or condition?
MR COSTIGAN: Yes, Your Honour.	One gets to 17(5), of

course, through 29 but	it is 17(5) which defines
and it is only 17(5).	There was no suggestion that
17(1) - - -

GAUDRON J:  Can the Board do anything more then than demand

that a requirement or condition not be imposed, in

the circumstances of this case?

MR COSTIGAN:	If the finding has been by the Board that the discrimination flowed from a requirement or
condition, then what it is entitled to do is to
direct in whatever is the appropriate way my client
- to direct it to refrain from committing that act
any further and if the act is imposing a
requirement or condition then it can, vis-a-vis the complainant, say, "You will not impose that requirement or_ condition on that complainant".

We would accept that that flows from

section 46(2)(a) in respect of each of the

complainants if the appropriate findings have been

made. The other orders - they are open to the

Board but they were not used. Order (b), there was an entitlement to make an order for damages. That

was not appropriate and order (c) again, whether

appropriate or not, was not used.

DEANE J:  But does anything really turn on that? I mean,

if these complainants are entitled to orders in

relation to them it is quite obvious that thousands

of other people in the Melbourne metropolitan area

are entitled to similar orders. Does your client

really want a situation where you get restricted

orders based on these complainants so another nine
complainants can then indulge in the expensive
exercise of taking proceedings before them until

finally you have orders which achieve this general

result, on the big assumption that these

complainants are entitled to orders in this form,

orders protecting them at least?

MR COSTIGAN:  No, of course, Your Honour, with respect, the

last thing my client wants is to go down before the

Equal Opportunity Board every week to face a

similar application. But none the less - and of

course it follows that if an appropriate order, in

respect of a particular complainant, is that there

Waters(2) 75 5/2/91

be conductor on that tram, there will be other

people in the community who get the benefit of

that; some of whom may be disabled and some of whom

may not, but what we are saying is that if a board

is going to make an order against a corporation

which carries with it criminal sanctions, that body

is entitled, as is a person against whom a

mandatory injunction is granted, to know precisely

what it is that he is not to do, or it is not to

do, so that it can avoid the sanctions that flow

from its failure to do it.

DEANE J: Well then, would it meet your objection if the

order were - assuming that the complainants are

entitled to it - that your client maintain a

conductor on any tram on which they might see fit

to travel?

MR COSTIGAN: Well that again, carrying, as it does,

criminal sanctions, may be difficult to honour

unless one knew with certainty when it was that

each of the complainants was travelling.

DEANE J: But it may well be that it is quite unreasonable

to tell them that they cannot travel on the spur of

the moment.

MR COSTIGAN: It may be. That was never the matter of

discussion, but the logic, with respect of what

Your Honour is putting to me, is that in the

absence of hourly checks on the travelling arrangements, or intentions of each of the

complainants, the only method that the Corporation

could adopt to insure that there is no offence

would be to put conductors back on all the trams.

GAUDRON J:  Mr Costigan, my question was directed to this,

namely, whether 46(2)(a) does authorize a mandatory

injunction at all and whether if the only way of

dealing with it is a mandatory injunction then the

remedy may be damages rather than a mandatory

injunction. That was my question.

MR COSTIGAN:  Yes. With respect to His Honour

Mr Justice Deane, I would trust that nothing that I

said in response to what he put to me is

inconsistent with my agreeing with what Your Honour

has just said.

GAUDRON J:  I am not putting it, I am just asking. I just

do not understand how 46(2)(a) works to give you a

mandatory injunction.

MR COSTIGAN:  We say it can work only by reference to an

order directed specifically to the complainant who

has persuaded the Board what the acts of

discrimination are; directed specifically so that

Waters(2) 76 5/2/91

the Board orders the person, namely the corporation
who has committed the acts of discrimination, to

refrain from committing any further acts. And that is not a mandatory injunction, of course, that is a

prohibition and on the surface that is all (2)(a)

will allow. The effect of what is, in fact,

ordered following the discussion with His Honour

Mr Justice Deane, is an order directed to the

corporation, in effect, to put conductors back on

the trams which is a mandatory injunction. That

may be the effect of it; certainly we would say the

Board had no power to order the corporation

directly to do that because that does not follow

from 4 6 ( 2 ) ( a ) .

GAUDRON J: Although, of course, that may not have been any

point that you took in your order nisi.

MR COSTIGAN:  I think I have to say it was not a point I

took in the order nisi.

GAUDRON J:  And, therefore, is not one that is open now.

MR COSTIGAN: Unless I could persuade Your Honour that I

should be allowed to take it.

MASON CJ:  We will adjourn until 10.15 am tomorrow morning.

AT 4.21 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 6 FEBRUARY 1991

Waters(2) 77 5/2/91