Waters v Public Transport Corporation
Case
•
[1991] HCA 49
•3 December 1991
No judgment structure available for this case.
HIGH COURT OF AUSTRALIA
Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
WATERS v. PUBLIC TRANSPORT CORPORATION
(1992) 173 CLR 349
3 December 1991
Discrimination Legislation
Discrimination Legislation—Discrimination on ground of status—Disabled persons—Direct and indirect discrimination—Whether intention or motive to discriminate necessary—Discrimination constituted by imposition of requirement or condition—No contravention where requirement or condition reasonable—Reasonableness—Onus of proof—No contravention where act done necessary to comply with provision of other legislation—Whether necessary that other legislation directly impose obligation to do discriminatory act—Equal Opportunity Act 1984 (Vict.), ss. 17(1), (5), 29(2)(b), 39(e)(ii).
Decisions
MASON C.J. AND GAUDRON J. The appellants are nine individuals ("the complainants") who lodged complaints under s.44 of the Equal Opportunity Act 1984 (Vict.) ("the Act") and twenty-nine community organizations representing the interests of disabled persons, which organizations made allegations of discrimination that came to the attention of the Equal Opportunity Board ("the Board") established by s.8(1) of the Act. The respondent, the Public Transport Corporation ("the Corporation"), is responsible for the provision of public transport in the State of Victoria in accordance with and subject to the Transport Act 1983 (Vict.).
2. The complaints and the allegations of discrimination arose out of a direction by the Minister for Transport to introduce a number of changes to the public transport system. This appeal is concerned with two of those changes, namely, a new ticketing system for public transport and the removal of conductors from some trams. The new tickets, known as "scratch tickets", were to be purchased from retail shops and were to be validated by the traveller making a scratch mark in designated places to indicate the journey being undertaken.
3. Each of the nine complainants suffers from a disability making it exceedingly difficult, if not impossible, to use scratch tickets. Some of the complainants, by reason of their particular disabilities, cannot travel on trams which do not have conductors. And, of course, other persons in the same general position as the complainants are similarly affected. It was by reason of these matters that it was complained and alleged, amongst other matters, that the introduction of scratch tickets and the removal of conductors constituted discrimination against the complainants in particular and against impaired persons generally.
History of the proceedings
4. The complaints were referred to the Board under s.45 of the Act. Initially the Board took the view that it had no jurisdiction, but it was held otherwise on appeal to the Supreme Court of Victoria. The allegations of discrimination were referred to the Board under s.42 of the Act after investigation by the Commissioner for Equal Opportunity under s.41.
5. The complaints and allegations of discrimination were heard together and, after a lengthy hearing, they were upheld to the extent that they were based on the introduction of scratch tickets and the removal of conductors. Thereupon, the Board made orders requiring the Corporation to "discontinue the scratch-ticket system as the main ticket system for the (c)omplainants" and to "refrain from implementing the driver-only tram proposal". It is common ground that those orders were made by way of determination of the complaints lodged under s.44 of the Act.
6. The Corporation appealed from the decision and orders of the Board to the Supreme Court pursuant to s.49(4) of the Act. That sub-section provides for an appeal only on a question of law. The appeal is to be in accordance with the provisions of Pt XI of the Magistrates' Courts Act 1971 (Vict.) with such adaptations as are necessary. The appeal must be instituted within twenty-eight days. Within that period the Corporation obtained an order nisi as provided in Pt XI of the Magistrates' Courts Act. Later, and after the time for appeal had expired, the Corporation instituted proceedings for judicial review by originating motion under Ch.I, O.56 of the Supreme Court Rules of Victoria ("the Rules") seeking to raise issues extending beyond those raised in its appeal.
7. The appeal and the originating motion were heard by J.D. Phillips J. The appeal was allowed. The order nisi which had been previously granted was made absolute and it was ordered that the orders of the Board be set aside and, in lieu thereof, that the complaints be dismissed. This appeal is brought from that order, there being no provision at that time for an appeal to the Full Court of the Supreme Court. The originating motion was dismissed, his Honour suggesting, in effect, that it was incompetent. In the event that the appeal should succeed, the Corporation seeks special leave to cross-appeal from the dismissal of that motion.
The provisions of the Act
8. Section 29(1) of the Act provides:
"It is unlawful for a person who provides goods or services (whether or not for payment) to discriminate against another person on the ground of status or by reason of the private life of the other person -
(a) by refusing to supply the goods or perform the services; or
(b) in the terms on which the person supplies the goods or performs the services."9. "Status" is defined in s.4(1) of the Act to mean, in par.(d) of the definition and in relation to a person, the impairment of that person. "Impairment" is relevantly defined in that sub-section to mean, in pars (b) and (c) of the definition, total or partial loss of a part of the body and malfunction of a part of the body. It is common ground that each of the complainants is impaired in one or other of those ways. It is also common ground that the Corporation provides services.
10. It is provided by s.29(2) and (3) that certain discrimination is outside the operation of that section. It is necessary only to refer to sub-s.(2) which provides:
"This section does not apply to discrimination on the ground of impairment in relation to the performance of a service where, in consequence of a person's impairment, the person requires the service to be performed in a special manner -
(a) that cannot reasonably be provided by the person performing the service; or
(b) 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 to a person not having that impairment."11. The concept of "discrimination" is dealt with in s.17 of the Act which relevantly provides:
"(1) A person discriminates against another person ... if on the ground of the status or by reason of the private life of the other person the first-mentioned person treats the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life. ... (5) For the purposes of sub-section (1) a person discriminates against another person on the ground of the status or by reason of the private life of the other person if -
(a) the first-mentioned person imposes on that other person a requirement or condition with which a substantially higher proportion of persons of a different status or with a different private life do or can comply;
(b) the other person does not or cannot comply with the requirement or condition; and
(c) the requirement or condition is not reasonable."12. The Act, in Pt V, contains a number of general exceptions. One exception is to be found in s.39 which relevantly provides:
"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; or (iii) an instrument made or approved by or under any other Act".13. If conduct which is the subject of a complaint under s.44 of the Act constitutes discrimination which is proscribed by the Act and is not excepted from its operation, whether specifically, as for example by s.29(2), or generally, as for example by s.39(e), the Board may make orders in accordance with s.46. That section relevantly provides, in sub-s.(2)(a), that:
"(The Board) may order the person with respect to whom the complaint was made ... to refrain from committing any further act of discrimination against the complainant".The substantive issues in the appeal and in the application for special leave to cross-appeal
14. The proceedings have at all times been conducted on the basis that, to the extent that discrimination is involved, it is because, in terms of s.17(5) of the Act, the scratch tickets and driver-only trams involve the imposition of a requirement or condition with which a substantially higher proportion of unimpaired persons can or do comply than do impaired persons. Compliance is not in issue. Nor is it now in issue that scratch tickets involve the imposition of a requirement or condition. Accordingly, the specific issues which arise under the Act are - (1) Whether, as found by Phillips J., there is no requirement or
condition involved in the removal of conductors from trams.(2) Whether the requirement or condition involved in the introduction
of scratch tickets and that, if any, involved in the removal of conductors are, in terms of s.17(5)(c), reasonable. More precisely, the question is whether, as held by Phillips J., the Board was wrong in refusing to have regard to the financial considerations which were said to justify those changes.(3) Whether, if the changes constitute discrimination within s.29(1)
of the Act, they nonetheless fall within the special exception in s.29(2). This question lies at the heart of the Corporation's application for special leave to cross-appeal.(4) Whether, as was held by Phillips J., the Corporation's conduct
in relation to the introduction of scratch tickets and the removal of conductors falls within the general exception set out in s.39(e)(ii) of the Act in that, a direction having been given by the Minister, that conduct was necessary for the Corporation to comply with s.31(1) of the Transport Act.(5) Whether, as was held by Phillips J., the orders made by the Board,
by reason of their vagueness, went beyond the power conferred by s.46(2)(a) of the Act.The relationship between s.17(1) and s.17(5) of the Act
15. The subject-matter of s.17(5) of the Act is usually referred to as "indirect discrimination" (see, for example, Australian Iron and Steel Pty. Ltd. v. Banovic (1989) 168 CLR 165, at pp 175, 182-183, 202) or as "adverse effect discrimination" (see, for example, Street v. Queensland Bar Association (1989) 168 CLR 461, per Brennan J. at p 508), signifying that some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind.
16. The notion of "indirect discrimination" or "adverse effect discrimination" derives from the decision of the Supreme Court of the United States in Griggs v. Duke Power Co. (1971) 401 US 424, which gave rise to the term "disparate impact discrimination". In that case a general anti-discrimination provision, much like that in s.17(1) of the Act, which was directed to the elimination of racial discrimination, was interpreted as prohibiting the use of a selection test which, although not overtly differentiating on the basis of race, had a disparate impact on persons from different racial backgrounds.
17. Within the Australian legal system, it is usual for anti-discrimination legislation to ban discriminatory practices in terms which deal separately with treatment which differentiates by reason of some irrelevant or impermissible consideration and with practices which, although not overtly differentiating on that basis, have the same or substantially the same effect. That is the case with s.17(1) and s.17(5) of the Act. See also Sex Discrimination Act 1984 (Cth), ss.5, 6, 7; Anti-Discrimination Act 1977 (N.S.W.), ss.7, 24, 39, 49A, 49P, 49ZG; Equal Opportunity Act 1984 (S.A.), s.29; Equal Opportunity Act 1984 (W.A.), ss.8, 9, 10, 36, 53. That form of proscription appears to have been based on that in the Sex Discrimination Act 1975 (U.K.).
18. Sub-section (1) of s.17 describes what constitutes discrimination by a person against another person in any circumstances relevant for the purposes of a provision of the Act. A person discriminates in the described sense "if on the ground of the status or by reason of the private life of the other person the first-mentioned person treats the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life". The sub-section is expressed in general terms apt to apply to both direct and indirect ("adverse effect") discrimination. Conduct which is "facially neutral" may nevertheless amount to, or result in, "less favourable" treatment. In the United States and Canada anti-discrimination statutes expressed in general terms that do not draw any distinction between direct and indirect discrimination have been consistently construed as applying to both forms of discrimination: Griggs ("The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation" - see at p 431); Albemarle Paper Co. v. Moody (1975) 422 US 405; Ontario Human Rights Commission v. Simpsons-Sears Ltd. (1985) 2 SCR 536. This Court has taken the same approach in construing s.92 of the Constitution: Cole v. Whitfield (1988) 165 CLR 360, at pp 399, 407-408; Castlemaine Tooheys Ltd. v. South Australia (1990) 169 CLR 436, at pp 466-467, 478, 480.
19. The remaining sub-sections in s.17 give more precise content to the general concept of discrimination described in sub-s.(1). Instead of making separate and independent provision for indirect discrimination, the legislature has chosen by sub-s.(5) to make it clear that sub-s.(1) applies to indirect discrimination of the kind described in sub-s.(5), just as sub-s.(4) makes it clear that sub-s.(1) applies to direct discrimination of the kind to which it refers. Sub-sections (4) and (5) commence with the words "(f)or the purposes of sub-section (1)", as does sub-s.(2). Accordingly, sub-s.(5) is epexegetical to, or explanatory of, sub-s.(1), spelling out the reach, though not necessarily the whole of the reach, of that provision in its application to indirect discrimination: see the discussion of the relationship between s.166 and s.167 of the Income Tax Assessment Act 1936 (Cth) in George v. Federal Commissioner of Taxation (1952) 86 CLR 183, at pp 203-204.
20. It is implicit in what we have just said that we do not accept the proposition that s.17(5) is a complete and exhaustive statement of what constitutes indirect discrimination for the purposes of s.17. Indirect discrimination as described in s.17(1) may occur otherwise than by means of the imposition of a "requirement or condition" within the meaning of s.17(5). And the language of the section appears to be inconsistent with the notion that s.17(5) is a complete and exhaustive prescription for the purposes of s.17(1). The object of s.17(5) was to ensure that s.17(1) extended so far, not to confine its operation. Section 17(1): does it require an intention or motive to discriminate?
21. There is some force in the suggestion that the expressions "on the ground of the status" and "by reason of the private life" in s.17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v. Arumugam (1988) VR 319, per Fullagar J. at p 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v. Simpsons-Sears Ltd., at p 547; see also Street, at pp 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, "to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status". It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s.17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of "on the ground of" and "by reason of". A similar view was adopted by the House of Lords in Reg. v. Birmingham City Council; Ex parte Equal Opportunities Commission (1989) AC 1155 in relation to s.1(1)(a) of the Sex Discrimination Act (U.K.) which proscribed less favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said (at p 1194):
"The intention or motive of the defendant to discriminate ... is not a necessary condition of liability".His Lordship noted (at p 1194) that, if intention or motive were relevant:
"it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys" (emphasis added).(See also the discussion by Deane and Gaudron JJ. in Banovic, at pp 176-177.) Requirement or condition in s.17(5) of the Act
22. It was found by the Board that the removal of conductors involved the imposition of a requirement or condition that "the (c)omplainants ... use trams without the assistance of conductors". On appeal, it was held by Phillips J. that "for the Corporation simply to remove conductors from some of its trams does not involve, in any ordinary use of language, the 'imposition' of some 'requirement or condition' on either the travelling public generally or the (c)omplainants in particular".
23. In Banovic, this Court considered s.24(3) of the Anti-Discrimination Act (N.S.W.) which deals with the same subject-matter as s.17(5) of the Act in terms of a person "requir(ing) the other person to comply with a requirement or condition". It is clear from that case that compliance may be required even if the requirement or condition is not made explicit: it is sufficient if a requirement or condition is implicit in the conduct which is said to constitute discrimination. There is nothing in the Act to suggest that, in this regard, s.17(5) involves anything different from the provision considered in Banovic.
24. It was submitted on behalf of the Corporation that, when applying s.17(5) in the context dictated by s.29 of the Act, namely, the provision of goods and services, it is necessary to ensure that the nature of those goods or services is not treated as constituting a requirement or condition. Then it was submitted that the requirement or condition identified by the Board, namely, the use of "trams without the assistance of conductors", is merely a description of the nature of the service provided by the Corporation.
25. It is necessary to note that the Board identified the requirement or condition involved in the removal of conductors in a context in which it was clear that it knew and appreciated that conductors were being removed from only some of the Corporation's trams. In that context, the formulation of the requirement or condition is somewhat elliptical but meaning that the complainants could fully avail themselves of tram transport only if they could use trams without the assistance of conductors. It may be that the routes on which the complainants were likely to travel had only conductorless trams, with the practical consequence that the complainants were, in effect, required to "use trams without the assistance of conductors".
26. In the context of s.29, the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the goods or services provided. Thus, for example, it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands. But, subject to that, there is nothing in s.29 or in s.17(5) to suggest that either the goods or services or the requirement or condition, if any, involved in their provision should be identified in any particular way. Thus, and subject to that qualification, the identification of the service involved is no more than a determination of fact: see Re Saskatchewan Human Rights Commission and Canadian Odeon Theatres Ltd. (1985) 18 DLR (4th) 93; James v. Eastleigh Council (1990) 1 QB 61. It is clear that, without making any express finding to that effect, the Board proceeded on the basis that the service provided by the Corporation was that of public transport as affected by the changes directed by the Minister for Transport.
27. It was open to the Board to identify the service provided by the Corporation with more or less particularity. For example, in the context of the complaints with respect to the removal of conductors, the Board might have identified the service as the provision of transport by trams, some of which had conductors and some of which did not. However, it was for the Board to identify the service, and the complaints and the evidence permitted it to proceed on the basis that it did.
28. Once the service provided by the Corporation was identified (albeit, not expressly) by the Board as public transport as affected by the changes directed, it was open to it to find, as in effect it did, that the removal of conductors from some trams involved the imposition of a condition that the complainants could fully avail themselves of the tram service only if they could use trams without the assistance of conductors. And a condition of that nature falls within the ordinary conception of "requirement or condition" and, thus, falls within s.17(5)(a). Indeed, it is apparent that it is within the intended operation of s.17(5)(a), for, when stated in this way, what is revealed is the less favourable treatment of those who need the assistance of conductors as against those who do not. Of course, that does not answer the question whether that is less favourable treatment on the ground of status. That must be determined by reference to s.17(5)(b) and (c).
29. When the finding as to the requirement or condition involved in the removal of conductors is understood, as it must be, in the manner that has been indicated, no error of law is disclosed in the Board's interpretation or its application of s.17(5)(a) of the Act.
The meaning of "reasonable" in s.17(5)(c) of the Act
30. The question raised by s.17(5)(c) in this case is whether a requirement or condition is reasonable, notwithstanding that it is one with which a substantially higher proportion of unimpaired persons can or do comply than do impaired persons.
31. The Board approached the question raised by s.17(5)(c) on the basis that it should determine whether the requirement or condition was reasonable by reference to, and only by reference to, the circumstances of the complainants. Accordingly, it held that it was precluded from considering "financial or economic considerations which (might) have motivated the (Corporation)" and from placing those considerations "in the balance against the facts presented by the (complainants)". On appeal, Phillips J. held that "reasonable" in s.17(5)(c) meant "reasonable in all the circumstances of the case and it involves considering not only the position of the (c)omplainants but also the position of the Corporation".
32. Paragraph (c) of s.17(5) does not remove discriminatory conduct from the operation of the Act. To the extent that discriminatory conduct is taken outside the Act's operation, that is done by other provisions, including s.29(2) and s.39(e). Instead, the effect of s.17(5)(c) is to limit the concept of "discrimination". It is limited by the notion of "reasonableness". Given that that notion determines whether conduct otherwise falling within s.17(5) constitutes discrimination, it would be surprising if "reasonable" were used in some general and imprecise sense, leaving that question to be answered as a matter of impression. However, that may be put to one side, for the meaning of "reasonable" in s.17(5) must be ascertained by reference to the notion of "discrimination" and by reference to the scope and purpose of the Act.
33. The purpose of the Act is to eliminate discrimination on the ground of status or by reason of personal life in those areas in which the Act operates. The discrimination with which the Act is concerned is discrimination against, rather than discrimination between, persons with different characteristics. The notion of "discrimination against" involves differentiating by reason of an irrelevant or impermissible consideration. Anti-discrimination legislation operates on the basis that certain characteristics or conditions are declared to be irrelevant or impermissible. Thus, subject to the exceptions set out in the Act, the effect of s.17(1) is to declare that status and personal life are not to be taken into consideration in those areas in which the Act operates. The notion of "discrimination between" involves differentiating on the basis of a genuine distinction, which, in the context of anti-discrimination legislation, must be a characteristic that has not been declared an irrelevant or impermissible consideration. It is this consideration which suggests that the function of s.17(5)(c) is to identify those cases in which a requirement or condition serves to effect a genuine distinction or, more precisely, a distinction which is not rendered impermissible by the Act.
34. The function of s.17(5)(c) which is suggested by the purpose of the Act is borne out by Griggs which, as earlier indicated, held that certain practices which have the same effect as direct discrimination are comprehended within the general concept of "discrimination". That case concerned discrimination in employment and, in that context, it was said (at p 431) of a practice having the same effect as direct discrimination that, if it "cannot be shown to be related to job performance, the practice is prohibited". Later, in Albemarle Paper Co., the Supreme Court of the United States held (at p 425), by reference to its earlier decision in McDonnell Douglas Corp. v. Green (1973) 411 US 792, that, even if "tests are 'job related', it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in 'efficient and trustworthy workmanship'". And, in Banovic, a case also concerned with discrimination in employment, Deane and Gaudron JJ. said (at p 181) that "reasonableness" in s.24(3)(b) of the Anti-Discrimination Act (N.S.W.) was directed to the considerations identified in Albemarle Paper Co. but, perhaps, also embraced matters pertaining to the stability and harmony of the workforce.
35. The two-stage approach which emerged from Griggs and Albemarle Paper Co. was reaffirmed by the Supreme Court of the United States in Wards Cove Packing Company Inc. v. Atonio (1989) 57 LW 4583. That approach is not very different from the approach that has emerged in this Court in relation to the notion of discrimination involved in ss.92 and 117 of the Constitution. In the case of different treatment, that approach involves ascertaining whether there is a difference which might justify different treatment and, if so, whether the different treatment in issue is reasonably capable of being seen as appropriate and adapted to that difference: see the discussion by Brennan J. in Gerhardy v. Brown (1985) 159 CLR 70, at p 127; and see, in relation to s.92, Cole v. Whitfield, at p 408; Bath v. Alston Holdings Pty. Ltd. (1988) 165 CLR 411, at pp 427-428; Castlemaine Tooheys Ltd., at p 478; in relation to s.117, Street, at pp 487-489, 508-509, 510-511, 523-524, 555, 570-571, 582-583.
36. One very powerful reason for confining the meaning of the word "reasonable" in the context of s.17(5)(c) in this way is that an extension of the concept to embrace all the circumstances of the case would open the way to justification of indirect discriminatory practices on grounds which are not available in the case of direct discrimination. Just why the legislature should intend to draw such a distinction between direct and indirect discrimination does not appear. And there is nothing to indicate that the consequences of direct discrimination are more objectionable and harmful to society than the consequences of indirect discrimination. In this situation a narrow reading of s.17(5)(c) is more apt to secure the attainment of the statutory objects than a reading which permits the adoption of a discriminatory practice merely because it is "reasonable" having regard to economic and financial considerations. If the legislature had intended to provide for an exemption on that ground, it would have found a home in "Part V - General Exceptions".
37. The reason for the introduction of par.(c) in s.17(5) is that the sub-section provides in effect that the imposition of a requirement or condition of the kind described in par.(a) amounts to discrimination against a person on the ground of status or private life if pars (b) and (c) are satisfied. Unless provision were made by par.(c) for the concept of reasonableness, the fact that the differentiating treatment is based on a non-proscribed distinction, and reasonably so based, would not avail the alleged discriminator. No such provision is required in connection with s.17(1) where conduct based on a relevant or non-proscribed distinction is not discrimination "on the ground of" or "by reason of" the status or private life of the person concerned.
38. Having regard to the purpose of the Act, the general context of s.17(5)(c), the way in which "indirect discrimination" has been dealt with in the United States following Griggs, and the notion of discrimination as revealed in the context of ss.92 and 117 of the Constitution, "reasonable" in that paragraph is, in our view, to be read as directing an inquiry whether the requirement or condition reflects a distinction other than one based on status or personal life and, if so, whether the requirement or condition is appropriate or adapted to that distinction.
39. However, this view - which, for convenience, may be called "the strict view of s.17(5)(c)" - is not a view which commends itself to a majority of the Court. Thus, it is necessary that this case be determined on a different basis.
40. Once the strict view of s.17(5)(c) is rejected, "reasonable" in that paragraph must mean reasonable in all the circumstances. If "reasonable" is not limited by the concept of "discrimination", there is nothing else in the Act to limit the considerations to be taken into account in reaching a decision on that issue. In particular, and for the reasons given by Dawson and Toohey JJ., those considerations are not limited by s.29(2) of the Act.
41. The strict view of s.17(5)(c) of the Act would lead to the conclusion that Phillips J. was in error in upholding the Corporation's ground of appeal that the Board "erred in law in ruling that ... (i)t should not have regard to any financial or economic considerations which may have motivated the (Corporation) ... when determining the question of reasonableness". That view has not gained acceptance and the alternative view requires acceptance of the conclusion of Phillips J. that the Board erred in the manner stated.
The operation of s.29(2) of the Act
42. As earlier indicated, s.29(2) takes discriminatory conduct in the provision of goods and services outside the operation of s.29 where, "in consequence of a person's impairment, (that) person requires the service to be performed in a special manner -
(a) that cannot reasonably be provided by the person performing the service; or
(b) 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 to a person not having that impairment".43. The Board proceeded, without any express finding to that effect, on the basis that the complainants required public transport to be provided in a special manner, namely, without scratch tickets and, so far as it was provided in trams, in trams with conductors. On this basis, it is hard to understand why the Corporation did not rely on s.29(2)(a). However, it has at all times confined itself to a claim that its conduct is protected by par.(b).
44. The Board interpreted s.29(2)(b) as concerned with terms which are more onerous to the provider of the services. It was argued in this Court on behalf of the Corporation that, to the contrary, it is concerned with terms which are more onerous to the impaired person. Then it was put that, the Board having proceeded on a wrong basis, there was, in effect, a failure to determine the question raised by s.29(2)(b) and, unless the appeal should otherwise be resolved in the Corporation's favour, that question should be remitted for the Board's decision.
45. It was not necessary for Phillips J. to consider the meaning of s.29(2)(b). And his Honour took the view that, in any event, it might not be open to the Corporation to rely on it as it was not raised in the grounds set out in the order nisi obtained pursuant to s.49(4) of the Act, but only in the originating motion taken out pursuant to Ch.I, 0.56 of the Rules. His Honour indicated that he inclined to the view that the effect of s.49(4) was to exclude the operation of Ch.I, 0.56. That latter question may, for the moment, be put to one side.
46. Section 29(2) operates only if an impaired person requires a service to be performed in a special manner which "cannot reasonably be provided" (par.(a)) or "can on reasonable grounds only be provided ... on more onerous terms" (par.(b)). The separate paragraphs of s.29(2) are directed to the separate areas covered by s.29(1)(a) and (b). It is convenient to repeat those paragraphs of s.29(1) which make it unlawful for a person who provides goods or services to discriminate on the ground of status or by reason of private life:
"(a) by refusing to supply the goods or perform the services; or
(b) in the terms on which the person supplies the goods or performs the services".Given that, by s.17(1), the concept of discrimination is one which involves "less favourable" treatment, it is clear that "the terms" referred to in s.29(1)(b) are the terms which are given to the person who requires the goods or services. And, because it operates in the same area as s.29(1)(b), it follows that s.29(2)(b) is also directed to terms that are more onerous to the person who requires the goods or services, namely, the impaired person.
47. There is no reason to treat "the terms" by reference to which s.29(2)(b) operates in any narrow or technical sense. However, the composite expression "more onerous terms" in the context of s.29(2)(b) indicates that the paragraph is concerned with terms which are more onerous to the person who seeks the performance of the service in a special manner and which are necessarily different from those on which the service would be provided to others, as, for example, where a higher price is charged. It is not concerned with a term, such as that referred to in s.17(5) as a "requirement or condition", which does not involve any overt differentiation but has a discriminatory effect.
48. This case is concerned with terms which are the same for everyone, regardless of their status or the nature of their personal life. More particularly, the terms are the same for all users of public transport, whether impaired or not. There is thus no possible foundation for an argument that the introduction of scratch tickets or the removal of conductors from trams falls within s.29(2)(b).
The requirement in s.31(1) of the Transport Act and the general exception in s.39(e)(ii) of the Act
49. Section 39 of the Act contains a variety of exemptions from unlawfulness under the Act. Three of its seven paragraphs ((a), (b) and (f)) exempt the "exclusion" of persons from organizations, activities or programmes in certain defined areas or circumstances (i.e., community service organizations and social or other clubs; sporting activities; and benign discrimination under special measures programmes). Another three paragraphs ((c), (d) and (da)) exempt particular kinds of "discrimination" (i.e., on the ground of status or impairment in relation to an annuity or insurance; on the ground of impairment where necessary for protection of public health). In contrast, par.(e) of s.39 is not confined by reference to the objective character of the conduct concerned. It extends to any act at all done by a person if the act "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; or
(iii) an instrument made or approved by or under any other Act".It is submitted by the Corporation that the acts of which complaint is made in the present case fall within the exemption contained in s.39(e)(ii) for the reason that they were necessary for it to do in order to comply with s.31 of the Transport Act. That submission was rejected by the Board but upheld by Phillips J. in the Supreme Court.
50. Section 31 of the Transport Act does not directly impose an obligation upon anyone to do any specific thing. Sub-section (1) of s.31 provides that a corporation to which it applies - and the Corporation is such a corporation - "must exercise its powers and discharge its duties subject to the general direction and control of the Minister (for Transport) or the Director-General (of Transport), and to any specific directions given by the Minister or the Director-General". Clearly enough, the section impliedly confers upon the Minister and the Director-General statutory power to give a direction to the Corporation. It also requires obedience by the Corporation to any direction given in the valid exercise of that statutory power.
51. The question involved in this aspect of the case is whether the exemption in s.39(e)(ii) of anything which it was necessary to do in order to comply with a "provision" of any other Act extends to anything which was necessary in order to comply with a direction given by the Minister in the exercise of the statutory power conferred by s.31 of the Transport Act. The effect of the construction of s.39(e)(ii) for which the Corporation contends ("the wide construction") in supporting an affirmative answer to that question would be that any of the myriad of persons possessing statutory power or authority to give a direction to another person in relation to a subject-matter would be empowered to exempt the conduct of that other person in relation to that subject-matter from unlawfulness under the Act in any case where the provision of the particular Act conferring the power or authority expressly or impliedly required - as it ordinarily would - that such a direction be obeyed by the persons to whom it was given. It is argued for the appellants that s.39(e)(ii) should be more narrowly construed as referring only to something which is done in order to comply with a specific obligation directly imposed by an actual provision of another Act ("the narrow construction").
52. As a matter of language, the words of s.39(e)(ii) are capable of bearing the meaning attributed to them by either construction. Anything that it is necessary to do in order to comply with an exercise of statutory power can, as a matter of language, be said to be necessary "in order to comply with" the legislative "provision" conferring (and expressly or impliedly requiring obedience to) the statutory power. On the other hand, and depending upon context, a reference to what is necessary to comply with "a provision of ... any other Act" can be construed as referring only to what it is necessary to do in order to comply with a specific requirement directly imposed by the relevant provision as distinct from a requirement imposed by some person in the exercise of some power conferred by the provision (cf., e.g., the construction given by the House of Lords in Hampson v. Department of Education and Science (1991) 1 AC 171 to the words "any act of discrimination done ... in pursuance of any instrument"). If the relevant words fell to be construed in isolation, we would favour the wide construction of them. When par.(e)(ii) is construed in its context in the Act, however, it appears to us that the narrow construction is the preferable one.
53. For one thing, the express provision of s.39(e)(iii) exempting any act which it was necessary to do in order to comply with a provision of "an instrument made or approved by or under any other Act" militates against the wide construction of s.39(e)(ii). If s.39(e)(ii) extended to exempt any act which was necessary to comply with the direct or indirect requirements of a provision of any other Act, s.39(e)(iii) would be largely surplusage since a statutory instrument made or approved under another Act will ordinarily command obedience by reason of an express or implied provision of that other Act. Moreover, the fact that s.39(e)(iii) requires "an instrument" made or approved under another Act - that is to say, a formal and written exercise of statutory power or authority which can be readily identified and examined - serves to confirm that it is unlikely that the exemption of s.39(e)(ii) was intended to extend to less formal and less readily identifiable or examinable exercises of statutory power, such as the oral directive upon which the Corporation relies in the present case.
54. More importantly, the wide construction seems to us to be inconsistent with the general scheme of the Act. It is one thing to provide that the Act should give way to an express direction contained in an actual provision of another Act or in a statutory instrument. It is a quite different thing to provide, in effect, that the Act shall give way to any subordinate direction, no matter how informal, to which a provision of any other Act requires obedience. In that regard, it would seem inevitable that, if the wide construction is given to the words "necessary ... in order to comply with a provision of ... any other Act" for the purposes of s.39(e)(ii), a correspondingly wide construction should be given to the words "necessary ... in order to comply with a provision of ... an instrument" for the purposes of s.39(e)(iii). In a context where, prerogative aside, the Crown ordinarily acts through employees or agents exercising statutory powers, the result would be that the express provision in s.5 that the Act binds the Crown would become almost illusory and the effect of the Act would be to confer an unfair advantage upon some Crown commercial instrumentalities, such as the Corporation, vis a vis any private competitor lacking comparable immunity.
55. Indeed, if the Corporation's argument be correct, it is difficult to see why the Director-General, an officer not directly responsible to the Victorian Parliament, could not validly give a direction to the Corporation and to the Roads Corporation requiring each of them to exercise its powers and discharge its duties without paying any regard at all to any of the provisions of the Act. Moreover, the undermining of the general scheme of the Act would not be confined to the case where a statutory provision authorizes the giving of directions to those in the service of the Crown. It would extend to any case where an Act or statutory instrument required that one person act in accordance with the directions of another. If, for example, a provision of an Act or of a "statute" or regulation of a university made or approved under an Act (see, e.g., Melbourne University Act 1958 (Vict.), s.17) required subordinate officers of the university to act in accordance with the directions of the university's council or vice-chancellor, anything necessary to comply with those directions would be exempt from the operation of the Act. If a general provision of a Companies Act happened to provide that the employees of a corporation must act in accordance with the directions of the company's board of directors, the board of any company could effectively remove the affairs of the company from the reach of the Act.
56. As has been said, s.31 of the Transport Act did not require the Corporation to do any specific thing. It did not directly impose any obligation upon the Corporation to remove conductors from trams or to introduce scratch tickets. If such an obligation was imposed upon the Corporation, it was imposed by the oral directive of the Minister given pursuant to s.31. It follows from what has been said above that s.39(e)(ii) of the Act does not exempt from unlawfulness under the Act whatever it was necessary for the Corporation to do in order to comply with that oral directive. That being so, the provisions of s.39(e)(ii) are inapplicable and it is unnecessary to consider whether the acts of the Corporation of which complaint is made were in fact "necessary ... in order to comply with" the Minister's oral directive.
The orders made by the Board
57. It is argued on behalf of the Corporation that the orders made by the Board are so vague as to be beyond the power conferred by s.46(2)(a) of the Act. The orders operated by reference to the very acts which were found to constitute discrimination, namely, the introduction of scratch tickets and the removal of conductors from trams. No error of law attended those findings. The orders that the Corporation "discontinue the scratch-ticket system as the main ticket system for the (complainants)" and "refrain from implementing the driver-only tram proposal" clearly constitute orders authorized by s.46(2)(a), being orders that the Corporation "refrain from committing any further act of discrimination against the complainant(s)". The Corporation's application for special leave to cross-appeal
58. The application for special leave to cross-appeal raises an important question whether the avenue of review provided by Ch.I, 0.56 of the Rules is excluded, either by s.49(4) of the Act or by s.88 of the Magistrates' Courts Act. It is not strictly necessary to decide this question as there is no possible foundation for the argument that the Corporation would otherwise wish to make by reference to s.29(2)(b) of the Act. However, it is appropriate that we indicate our general agreement with what is said on this issue by McHugh J.
Conclusion
59. For the reasons earlier given the matter must be determined on the basis that "reasonable" in s.17(5)(c) of the Act means reasonable in all the circumstances.
60. The appeal should be allowed. The application for special leave to cross-appeal should be dismissed. The orders of the Supreme Court dismissing the complaints should be set aside and, in lieu thereof, it should be ordered that the matter be remitted to the Board to determine, in accordance with s.17(5)(c) of the Act, whether the requirements or conditions involved in the introduction of scratch tickets and removal of conductors from trams are reasonable.
BRENNAN J. This case arose out of changes that were made to the Melbourne metropolitan transport system in order to reduce the expenditure of public funds. Conductors were withdrawn from the modern tramcars and a system of scratch tickets was introduced. The scratch ticket system required passengers to buy a ticket before boarding a tram and to validate it for their journey (by scratching it) or pay a penalty fare. The consequences of these changes were disastrous for many disabled people who were unable to buy or use a scratch ticket or who needed assistance in boarding or alighting from a tram, in acquiring a ticket on the tram, in finding a seat and in identifying their desired route and destination. They were denied the assistance which conductors had been accustomed to afford. In the result, many disabled people were effectively denied the use of public transport by trams, thereby restricting further the movement of people already confined by constraints imposed by nature, age or misfortune. This litigation was launched by nine individuals and was supported by a number of organizations in the interest of disabled people in an endeavour to restore the services which had been available before the changes. The ventilation of the problem has produced a partial solution: the scratch ticket system has been changed and some assistance has been made available to disabled people on trams without conductors. That is of no significance to the consideration of the legal issues which now fall for determination. This Court must decide those issues by reference to the circumstances as they were before these ameliorating steps were taken.
2. Disabilities - physical, functional and mental - are almost infinitely various and they create needs which vary according to the nature and extent of the disability. Services may be required to satisfy those needs and, in many cases, the services are provided by public authorities. Indeed, a measure of the civilization of a society is the extent to which it provides for the needs of the disabled (and of other minorities) and protects them from adverse and unjust discrimination which offends their human dignity. The provision of needed services and the protection against adverse and unjust discrimination are distinct but related means of securing the welfare and dignity of the disabled. This litigation seems to me to be largely misdirected, for it invokes the Equal Opportunity Act 1984 (Vict.) ("the Act") and alleges unlawful discrimination when the true remedy which is sought is an enhancement of the services available to the disabled. Anti-discrimination legislation cannot carry a traffic it was not designed to bear. The beneficial operation of such legislation is prejudiced by invoking its assistance to achieve remedies which can be achieved only by straining the legislative language. The provision of services for the disabled, a function properly and necessarily reposed in the Executive Government as the branch of Government with fiscal power and responsibility, might not receive due attention if the measure of the entitlements of the disabled is determined by litigation under anti-discrimination legislation. Anti-discrimination legislation should be liberally construed but not as though it were the only, or even the principal, means by which the disadvantages of the disabled or of other minority groups are to be alleviated.
3. The material facts and the relevant provisions of the Act are set out in other judgments and I need not repeat them. Section 29(1) of the Act proscribes two categories of discriminatory conduct relating to the provision of services for disabled people (by which term I mean persons suffering from an impairment as defined in s.4(1) of the Act): discrimination by refusing to perform services (par.(a)) and discrimination in the terms on which services are performed (par.(b)). The ultimate question is whether either of these two provisions covers the conduct of the Public Transport Corporation ("the Corporation") in withdrawing conductors from modern trams and introducing the scratch ticket system. It will be necessary to keep the distinction between these two categories of unlawful discrimination in mind in order to construe and apply the Act to the present case. The issues which, in my view, fall for determination appear under the headings following. (i) What is the relevant service for the purposes of s.29(1)(a)?
4. Conductors on modern trams had been accustomed to provide disabled people with the services earlier mentioned, as the Equal Opportunity Board ("the Board") found. Whether or not conductors were bound by the terms of their employment to provide the particular services needed by disabled people, the services which facilitated the use of the tram service by many disabled people were performed by the Corporation through its servants, the conductors. The services performed by the Corporation were the special services provided by conductors for the disabled and the general tram service available to the travelling public. By withdrawing conductors from modern trams, the Corporation refused to perform the special services theretofore available to the disabled, with the regrettable consequence that many more disabled people were unable to avail themselves of the latter service. Although the Corporation refused to perform the special services for the disabled, the refusal was not discriminatory as that concept is defined by s.17(1) of the Act. The special services were not refused "on the ground of ... status"; conductors were simply withdrawn from modern trams, presumably on the ground of economy, though the adverse impact of the withdrawal fell more severely on the disabled than on the general public. But the Corporation treated the disabled and the general public alike, for the special services which had been provided by conductors had never been available to those who were not disabled except, perhaps, for the courtesies extended to all passengers and those courtesies were uniformly withdrawn from modern trams irrespective of the status of their passengers.
5. As the case did not fall within s.17(1), the appellants placed reliance upon s.17(5). But s.17(5) has no application to a refusal of the special services which conductors had been accustomed to provide. Those services were not refused by the imposition of a "requirement or condition" on disabled people. They were refused simply because the conductors who had been accustomed to provide them were no longer employed on modern trams. The real impact on the disabled of the withdrawal of the special services consisted in their inability to avail themselves of the tram service available to the general public. The Corporation, of course, provided the ordinary tram service for all members of the travelling public: the Corporation did not refuse "to ... perform the services" of providing the ordinary tram service, though many disabled were no longer able to use it. Therefore the Corporation's conduct did not amount to a discriminatory refusal of service as proscribed by s.29(1)(a). Indeed, before J.D. Phillips J. it was agreed that s.29(1)(a) had no direct relevance to the case. The appellants founded their argument on s.29(1)(b) and s.17(5).
6. However, before leaving this aspect of the case, reference should be made to s.29(2)(a), which suggests that the category of discriminatory conduct proscribed by s.29(1)(a) includes a refusal to perform a service "in a special manner" required by another person "in consequence of (that other) person's impairment". Although this provision suggests that there may be a discriminatory refusal of service by a refusal to perform it in a "special manner", in terms it distinguishes between a service and the manner in which it is performed. It cannot be construed as importing a duty to provide impaired persons with services not available to non-impaired persons. Construing s.29(1)(a) and s.29(1)(b) together, it seems to me that, where the availability of the service to impaired persons depends on the manner in which it is performed (as distinct from the performance of an additional service) and the service can reasonably be performed in a manner which would make the service practically available to impaired persons who require a special manner of performance, it is unlawful to refuse to perform the service in that manner. Obviously, there may be fine distinctions to be made between an additional service performed only for a class which needs it and the manner in which a particular service can reasonably be performed in order to make that service available to that class. Thus, it may be unlawful discrimination falling within s.29(1)(a) for the Corporation to refuse to permit trams to stop near a school for the blind (a special manner of "performing" the general tram service) because that would amount to a refusal of the service to blind children attending the school, though s.29(1)(a) does not make it unlawful to withdraw the further service of escorting blind children to the footpath. Whatever the true distinction between a service and a special manner of performing it may be, it cannot be said that the provision of staff to assist the disabled to use the general tram service is merely a special manner of "performing" the general tram service: the provision of such assistance is an additional or enhanced service.
7. We were informed that, in the argument before J.D. Phillips J., the parties agreed that the needs of disabled people for the services provided by conductors amounted to a requirement that the Corporation's services be performed in a special manner. The agreement evidently arose in relation to the operation of s.29(2)(b), a provision which confers immunity in respect of conduct otherwise falling within s.29(1)(b). The agreement does not appear to have affected his Honour's decision in any material way and, in the context of s.29(1)(a), it erroneously confuses the manner in which a service can be performed and an additional or enhanced service. (ii) What is the relevant service for the purposes of s.29(1)(b)?
8. The performance of a service and "the terms on which" the service is performed are concepts which are kept distinct in s.29(1)(b) and (2)(b) of the Act. As s.29(1)(b) speaks of discriminating "in" the terms on which services are performed, discrimination must be found, if at all, in the terms on which the service is performed not in the performance of the service. Because of the correlation between the terms on which a service is performed and the performance of the service, the existence of discrimination can be ascertained only by reference to the terms on which an actual service is performed by the putative discriminator. The service relevant to an alleged act of discrimination is the service which the putative discriminator performs, not a service which the putative discriminator has been accustomed to perform, nor a service of a higher standard which the putative discriminator could perform but is not performing. For the purposes of s.29(1)(b), a service consists in what is performed, not in what is not performed. If there be any unlawful discrimination by non-performance, it must fall within s.29(1)(a).
9. In this case, at the material time the relevant service being performed by the Corporation was the provision of tram transport for the general public. It was a feature of that service that the modern class of trams had no conductor. The withdrawal of conductors from modern trams in the Corporation's fleet is a fact relevant to the ascertainment of the "services" performed by the Corporation but, to bring the case within s.29(1)(b), the appellants must characterize the withdrawal of conductors' services and the introduction of the scratch ticket system as the imposition of a requirement or condition within s.17(5) on the users of tram transport.
(iii) What requirement or condition was imposed?
10. Although s.17 defines discrimination for the purposes of the Act as a whole, it is erroneous to commence the analysis of a situation which is said to reveal a contravention of s.29(1)(b) by inquiring whether the situation as a whole reveals direct (s.17(1)) or indirect (s.17(5)) discrimination. Such an approach tends to conflate the relevant services and the terms on which the services are performed. If that mistake be made, indirect discrimination - the category relied on here - will be found not only in a requirement or condition imposed by the putative discriminator but in any change in the services performed by that person which impacts differentially on persons "of a different status or with a different private life". The appellants' argument seems to me to make that mistake. When that mistake is made, it is necessary to strain the language of the statute to bring the facts within the terms of s.17(5). Thus, in the present case it is necessary to describe the Corporation's withdrawal of conductors from modern trams as the imposition of a requirement or condition having an adversely differential impact on persons suffering an impairment. In reality, the differential capacity to enjoy the tram service flowed from the restricted capacity of persons suffering an impairment to enjoy the tram service as it was, not from the imposition on them of a requirement or condition as a term of their enjoyment of the tram service.
11. It is only after the terms on which a service is performed have been identified that it is possible to determine whether the person performing the service discriminates "in" those terms. It is argued by the appellants that the ascertainment of what the service is and what are the terms on which the service is performed are questions of fact and that s.49(4) of the Act precludes an appeal on questions of fact from the decisions of the Board. But if the Board misdirects itself in law in ascertaining what is the relevant service and what are the relevant terms on which that service is performed, it may make an error of law and erroneously treat the withdrawal of a service as a requirement or condition imposed on the enjoyment of a service which is not withdrawn. In my opinion, the Board did so misdirect itself in this case.
12. What are the terms on which the Corporation's service, such as it was, was available? In my respectful view, it is erroneous to give the description of an imposed requirement or condition to a situation in which the use of modern trams was practically unavailable to passengers who could not use them without assistance from conductors. Nor can the withdrawal of conductors from modern trams be described as the imposition of a requirement or condition that passengers travel on trams without a conductor. Such descriptions strain the language of the statute: the Corporation did not require persons to travel on trams with or without conductors, nor did the Corporation restrict the use by the disabled of such service as it provided except by the scratch ticket requirement. The straining of language arises because the supposed requirement or condition is not in truth a term on which the service was performed but was a feature of the service as it was performed by the Corporation.
13. The difficulty encountered by disabled people who wished to use the modern trams arose simply because the services available fell short of their needs. If such shortfalls in a service can be transformed into a requirement or condition imposed by the person performing the service, the Act becomes a charter of the minimum standards of service which a person performing the service must provide or at least maintain to cater for the needs of the disabled. That is not the purpose of the Act. If a shortfall in a service or the withdrawal of a service is characterized as a requirement or condition imposed by the person performing the service, the Board must assume responsibility for determining whether the shortfall or withdrawal is "reasonable": s.17(5)(c). If "reasonable" in s.17(5)(c) be held to import consideration of the cost of enhancing the service to eliminate the shortfall or to restore the service withdrawn, the responsibility for deciding the level of service to be provided would effectively pass from the performer of the service to the Board though the Board has no fiscal responsibility for providing the service. Whether that situation would be conducive to the interests of impaired persons is a matter of speculation. In the present case, the Board ordered the Corporation to "refrain from implementing the driver-only tram proposal". The form of the order is open to objection as failing to restrain specific conduct which might have been found to amount to the refusal of a service or the imposition of a requirement or condition but, more significantly, it purports to order the Corporation to maintain a level of staffing for its trams as the means of maintaining the services needed by disabled people. I find no basis in the Act for an order compelling the performer of a service to retain or employ staff to maintain the level of service previously provided.
14. In my opinion, the only relevant requirement or condition imposed by the Corporation in this case was that a person using the service should have acquired and should validate a scratch ticket or pay a penalty fare. That requirement or condition was one with which a substantially higher proportion of unimpaired persons than of impaired persons could comply (s.17(5)(a)) and with which many impaired persons could not comply (s.17(5)(b)). The imposition of that requirement or condition thus amounted to discrimination unless the requirement or condition was reasonable (s.17(5)(c)), the question next to be considered.
(iv) Was the scratch ticket requirement reasonable?
15. The imposition of a requirement or condition which satisfies pars (a) and (b) of s.17(5) prima facie amounts to discrimination, but it falls into that classification only if the requirement or condition is not reasonable: par.(c). It is not possible to determine reasonableness in the abstract; it must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which pars (a) and (b) of s.17(5) would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.
16. As to the first aspect, I would agree generally with what Mason C.J. and Gaudron J. have written in emphasizing that, in considering reasonableness, the connection between the requirement or condition and the activity to be performed or the transaction to be completed is an important factor. The reasons which may justify discrimination on the respective grounds specified in the Act - sex, marital status, race, impairment, parenthood, childlessness, being a de facto spouse, religious or political belief or activity - vary according to the category of discrimination and the activity or transaction to which an alleged instance of discrimination relates. But even where the imposition of the particular requirement or condition is appropriate and adapted to the performance of the relevant activity or the completion of the relevant transaction, it is necessary to consider whether performance or completion might reasonably have been achieved without imposing so discriminatory a requirement or condition. To determine the latter question, in my view, reference to the general circumstances of the case is required. It follows that "reasonable" in s.17(5)(c) cannot be narrowly confined. It must be remembered that the imposition of a requirement or condition falling within s.17(5)(a) is not by itself an instance of discrimination; it becomes an instance of discrimination only by reason of its consequences on others. The only way in which a balance can fairly be struck between a putative discriminator's legal freedom to impose a requirement or condition in the several activities or transactions to which the Act relates and the interests of persons in a protected category is to consider all the circumstances of the case. Contrary to the view adopted by the Board, it may be necessary to consider the position of the putative discriminator.
17. It is submitted that, as the Act contains express provisions which remove particular discriminatory conduct by the putative discriminator from the net of proscription, these provisions exhaust the cases in which the position of the putative discriminator falls for consideration. Section 29(2) is such a provision and it is inappropriate - so the argument runs - to consider whether a discriminatory requirement or condition is reasonable from the viewpoint of the putative discriminator when s.29(2)(b) states the occasions when conduct otherwise prohibited by s.29(1)(b) is not unlawful. The occasions when s.29(2)(b) might apply are limited to occasions when an impaired person "requires the service to be performed in a special manner" and the putative discriminator has imposed a requirement or condition more onerous than a requirement or condition that might reasonably be imposed on a non-impaired person. Section 29(2)(b) applies only when the conduct prohibited by s.29(1) arises from the special manner in which the person complaining of the discrimination requires the relevant service to be performed; it does not apply when the discriminatory conduct consists simply in the refusal of a service or in the imposition of a discriminatory requirement or condition unrelated to the manner in which the service is performed. True it is that there is a considerable area of overlap between s.17(5) in its application to s.29(1)(b) and s.29(2)(b), but it would give the Act an unreasonable operation if the specific provision of s.29(2)(b) were read as excluding from consideration under s.17(5)(c) the reasonableness of imposing the impugned requirement or condition in order to perform the relevant activity or to complete the relevant transaction.
18. Here, there was no occasion for the Board to consider the reasonableness of withdrawing conductors on the modern trams but the Board did have to determine whether it was reasonable to impose the scratch ticket arrangements to collect the fares of passengers or whether some alternative arrangements could reasonably have been implemented which would have eliminated or diminished the adverse effect of the scratch ticket arrangements on intending passengers suffering from impairment. As the Board construed s.17(5)(c) to exclude consideration of factors other than the impact of the changes made by the Corporation on the availability of transport to persons suffering impairment, its decision on the question of reasonableness had to be set aside. Section 29(2)(b) had no application. The appellants' complaint as to the scratch ticket requirement did not reveal a requirement that the tram service be performed in a special manner and there was no suggestion that any discrimination in the terms on which that service was performed consisted in the imposition on disabled people of terms more onerous than the terms on which the service could be reasonably provided to others.
19. It was therefore necessary for J.D. Phillips J. to send the matter back to the Board for reconsideration unless the oral direction given by the Minister to the Corporation to implement the Cabinet resolution to introduce scratch tickets excluded the implementation from the operation of s.29 of the Act. (v) Was the Minister's direction binding on the Corporation?
20. Section 31(1) of the Transport Act 1983 (Vict.) reads as follows:
" 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."A controlling executive power of the kind conferred by s.31(1) is not a power to direct a Government agency not to comply with its obligations under the general law. Section 31(1) does not authorize the Minister to give a direction to the Corporation to act in contravention of the Equal Opportunity Act. If the direction given by the Minister purported to require the Corporation to contravene the Act, the direction was pro tanto in excess of the Minister's power and therefore invalid. However, the direction given by the Minister would not require a contravention of the Act by the Corporation if what is done in accordance with the direction is exempt from the prohibitions contained in the Act. Section 39 of the Act exempts certain categories of discriminatory conduct from proscription. Relevantly, s.39 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 BoardAn exemption created by s.39(e) applies when the "provision" with which the putative discriminator is bound to comply is to be found in an order, an Act or an instrument. Unless the "provision" itself makes it necessary to do the relevant discriminatory act, s.39(e) does not take the act outside the operation of the Equal Opportunity Act. Section 39(e)(ii) should not be construed as relating to a provision in an Act which does not itself require the doing of a discriminatory act but which requires obedience to a direction which is given under an authority conferred by that Act. If sub-par.(ii) so far extended, sub-par.(iii) would be otiose.
(ii) any other Act; or (iii) an instrument made or approved by or under any other Act".
21. Sub-paragraph (iii), however, does not embrace all directions given under a statutory power. The term "instrument" generally imports a document of a formal legal kind; the term is so used in the definition of "Subordinate instrument" in s.3 of the Interpretation of Legislation Act 1984 (Vict.). A verbal direction is not an instrument. Of course, it would make s.39(e) adventitious in its operation if sub-par.(iii) applied when a Minister exercises a power in writing but not if he exercises a power by verbal direction. The instruments of which sub-par.(iii) speaks are, I think, written instruments which the "other Act" prescribes as the means by which a power conferred by the other Act is exercised. The scope of the exemptions created by s.39(e)(ii) and (iii) of the Act is thus limited to discriminatory acts done in compliance with a statutory duty imposed by another Act or by an exercise of a statutory power which the other Act requires to be exercised by written instrument and which is so exercised.
22. No doubt directions given by the Minister under s.31(1) of the Transport Act might be in writing, but the Transport Act does not require that directions shall be given by written instrument. Accordingly, s.39(e) does not exempt from the prohibitions in the Act acts done to comply with directions given under s.31(1) of the Transport Act. The corollary is that s.31(1) does not authorize the giving of a direction which requires a Corporation to act in contravention of the Equal Opportunity Act. It follows that, although the direction to withdraw conductors involved no contravention of the Act, the direction to introduce the scratch ticket system would have done so - and would therefore have been unauthorized by the Transport Act - unless that system was "reasonable". The question whether that system was reasonable has not been determined by the Board according to law.
23. The matter must therefore go back to the Board to determine whether the requirement or condition that a passenger acquire and validate a scratch ticket or pay a penalty fare was a reasonable requirement or condition to impose on passengers travelling on the Corporation's trams including the modern trams without conductors.
24. It is unnecessary to consider in detail the form of the orders made by the Board with respect to scratch tickets except to say that there was no valid objection to an order in a form which required the Corporation to "discontinue the scratch-ticket system as the main ticket system".
25. The appeal should be allowed, the orders of J.D. Phillips J. set aside and in lieu thereof the matter should be remitted to the Equal Opportunity Board with a direction to determine whether the scratch ticket system was reasonable and, if so, to dismiss the complaints and allegations but, if the scratch ticket system was not reasonable, to order that the Corporation refrain from implementing the scratch ticket system as the main ticket system for Melbourne trams.
26. The Corporation's application for special leave to cross-appeal should be refused. Section 29(2)(b) has no application and the question of the jurisdiction of the Supreme Court under Ch.I, O.56 of the Supreme Court Rules (Vict.) to review a decision by the Board should not now be decided.
DEANE J. Subject to one qualification, I agree with the judgment of Mason C.J. and Gaudron J. The qualification is that I do not share their Honours' views about the preferred meaning of the word "reasonable" in s.17(5)(c) of the Act. In what follows, I deal with that aspect of the case.
2. An element of the Equal Opportunity Board's conclusion that the imposition of the requirements or conditions relating to scratch tickets and the absence of conductors constituted discrimination for the purposes of s.17(5) was a finding that the requirements or conditions were "not reasonable" (s.17(5)(c)). In making that finding, the Board acted on the basis that the question of reasonableness for the purposes of s.17(5)(c) was to be determined without regard to any financial or economic considerations which may have influenced the Public Transport Corporation in imposing the requirements or conditions. In the Board's view, all that was relevant for the purpose of determining whether a requirement or condition was not reasonable for the purposes of s.17(5)(c) was its impact upon a complainant "in the context as presented by the evidence". It followed that the Board considered that it was not open to it "to place ... in the balance against the facts presented" by the complainants "any financial or economic considerations" which may have motivated the Corporation.
3. In the Supreme Court, J.D. Phillips J. was of the view that the question posed by s.17(5)(c), namely, whether "the requirement or condition is not reasonable", was not to be answered by reference solely to the position of the person subjected to the discrimination. On his Honour's approach, the word "reasonable" in par.(c) should be read as meaning "reasonable in all the circumstances of the case" with the result that relevant circumstances affecting the alleged discriminator, including any financial cost of avoiding or removing a requirement or condition, are factors to be taken into account in determining whether the requirement or condition is "not reasonable". His Honour's approach in that regard corresponded with the views expressed by the members of the Federal Court in Styles v. Secretary, Department of Foreign Affairs and Trade (1988) 84 ALR 408, at pp 426-429; (1989) 23 FCR 251, at p 263.
4. The arguments supporting the Board's conclusion that circumstances affecting the alleged discriminator are not relevant for the purposes of s.17(5)(c) are not without force. To give "reasonable" the wide meaning of "reasonable in all the circumstances of the case" effectively introduces an element of wide discretionary judgment into the identification of the "adverse effect discrimination" with which s.17(5) is concerned. Moreover, the position of the alleged discriminator, including any financial cost of avoiding or removing discrimination, may also arise in the class of case which falls within s.29(2) (i.e. where a person, by reason of impairment, requires a service to be performed in a special manner) and it is possible that the general policy of the Act would be better served if consideration of the position of the alleged discriminator was confined to that class of case. On balance, however, I agree with the reasons given by Dawson and Toohey JJ. for concluding that the context provided by s.29(2) of the Act does not justify confining the ambit of the word "reasonable" in s.17(5)(c) so as to render irrelevant any financial or other considerations affecting an alleged discriminator.
5. The fact that I do not share their Honours' views about the preferred meaning of the word "reasonable" in s.17(5)(c) does not lead to any disagreement with the orders which Mason C.J. and Gaudron J. propose since, as their Honours point out, those orders are framed to reflect the conclusion reached by a majority of the Court, including myself, that the word should be understood as meaning "reasonable in all the circumstances of the case".
22. The Corporation accepted that the introduction of "scratch" tickets involved the "imposition" of a "requirement or condition". As Phillips J. pointed out, for the Corporation to stipulate that a passenger purchase a ticket at a retail outlet before commencing his or her journey and then, at the commencement of the journey, validate the ticket in a certain way is to require something of a passenger. Such a stipulation is readily comprehended as one of the terms imposed upon passengers in the performance of the service. His Honour held, however, that the Corporation's act in removing conductors from trams was not the imposition of a "requirement or condition" within the meaning of s.17(5)(a). He said that for the Corporation to remove conductors from some of its trams did not involve, in any ordinary use of language, the "imposition" of some "requirement or condition" on the travelling public or the complainants in particular.
23. However, a person could use the services provided by the Corporation's trams only if that person was prepared, inter alia, to endure using the trams without the assistance of conductors. That being so, it is no misuse of ordinary language to hold that the Corporation imposed a requirement or condition on persons using its trams if the services provided are characterised as the provision of trams. No doubt, as counsel for the Corporation stressed, it is important to distinguish between the services provided and the requirement or condition imposed. If, for example, the Board found that the relevant services provided were conductorless trams, then it is difficult to see how the use of trams without a conductor was a requirement or condition of providing the service. Whether the services provided were trams or trams without conductors was a question of fact for the Board. Unfortunately, the Board defined the services provided at too high a level of generality to determine whether it was open as a matter of law to find that the use of trams without a conductor was a requirement or condition of the services provided. Nevertheless, in my opinion, Phillips J. erred in holding that as a matter of law the provision of trams without conductors was not imposing a requirement or condition on persons using those trams. Whether or not it was a requirement or condition is a question of fact for the Board after it defines the relevant services with greater precision.
Reasonableness of the requirement or condition - s.17(5)(c)
24. By reason of the provisions of par.(c), a person discriminates under s.17(5) only if the requirement or condition imposed is "not reasonable". The Act gives no guidance as to the criteria to be applied in determining reasonableness.
25. The Board held that the financial and economic factors which grounded the Government's decision to make the changes to the public transport system were not relevant under par.(c), primarily for the reason that to hold otherwise would be to render s.29(2) of the same Act superfluous. Phillips J. held that the Board had erred in law so holding. His Honour said that under par.(c) it was proper to consider the Corporation's economic and financial justifications in determining whether the requirements or conditions imposed by it were reasonable. In rejecting the appellants' contention that the reference to reasonableness is a reference to the point of view of those discriminated against, his Honour declared that:
"On its face, par.(c) is not limited; it provides simply
that there may be discrimination if the requirement or condition in question 'is not reasonable'. Surely that means reasonable in all the circumstances of the case and it involves considering not only the position of the Complainants but also the position of the Corporation."
26. This is a convenient place to deal with the contention that, contrary to the approach of Phillips J., the function of s.17(5)(c) is to identify those cases in which a requirement or condition "serves to effect a distinction" which is not rendered impermissible by the Act. Consequently, the word "reasonable" in s.17(5)(c) is said to be concerned only with whether the requirement or condition which has been imposed reflects a distinction other than one based on status or personal life and, if so, whether that requirement or condition is appropriate or adapted to that distinction.
27. In our joint judgment in Castlemaine Tooheys Ltd. v. South Australia (1990) 169 CLR 436, Gaudron J. and I sought to explain the general considerations which, statute aside, result in particular treatment being identified as discriminatory. We said (at pp 478-479):
"A law is discriminatory if it operates by reference to
a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference, or, in other words, if it treats equally things that are unequal - unless, perhaps, there is no practical basis for differentiation. ... To justify a distinction as relevant to an objective it is necessary to show that the distinction made is a real distinction. That involves the identification of a difference or differences explaining the distinction. It also involves showing a connexion between the distinction and the objective such that the object is reasonably capable of being seen as likely to be achieved - other than to an extent that is trifling or insignificant - by different treatment based on that distinction."
28. The contention that the function of s.17(5)(c) is to identify those cases in which a requirement or condition "serves to effect a distinction" which is not rendered impermissible by the Act seems to depend on the proposition that the purpose of the Act is to deal with "discrimination" in the sense that that word would be understood in a context outside the Act. But in my opinion the Act seeks to eliminate "discrimination" only in situations which fall within the definitions of that term contained in the Act and, at least in the case of s.17(5), the definition is highly artificial.
29. As I earlier pointed out, s.17(1) and (5) deal with mutually exclusive subject matters - s.17(1) with direct discrimination and s.17(5) with indirect discrimination. What constitutes discrimination is to be found by applying the criteria specified in s.17. Cases of indirect discrimination are to be determined by applying the criteria in s.17(5) uninfluenced by the language of s.17(1) or any general concept of discrimination. Whether "the requirement or condition is not reasonable" (s.17(5)(c)) does not depend on the notion that the purpose of the term "reasonable" is to limit some general concept of discrimination which exists independently of s.17(5). The reasonableness of the "requirement or condition" is itself part of the definition of discrimination in situations falling within s.17(5). That sub-section deals with situations where a person has not directly treated the complainant less favourably than that person treats or would treat another person. In those situations, the act of a person will be held to be discrimination if the conditions specified in pars (a), (b) and (c) of s.17(5) are satisfied. Section 17(5) is a deeming provision, and what falls within it is discrimination for the purposes of the Act even though it is not discrimination within the meaning of s.17(1) or discrimination in the sense that that term would be understood in a context outside this Act. That being so, arguments based on any concept of discrimination existing outside the statutory definition contained in s.17(5) are not legitimate aids to the construction of the term "reasonable" in s.17(5)(c). What has been said in cases like Castlemaine Tooheys, therefore, has no application to s.17 of the Act. Likewise, arguments based on Griggs v. Duke Power Co. (1971) 401 US 424 and similar authorities in the United States of America are not legitimate aids in interpreting s.17(5) because those authorities do not deal with the term "discriminate" as it is defined in s.17(5) or for that matter in s.17(1).
30. In a legal instrument, subject to a contrary intention, the term "reasonable" is taken to mean reasonable in all the circumstances of the case: cf. In re a Solicitor (1945) KB 368, at p 371. Nothing in the context of s.17(5)(c) indicates that the term should not be given its ordinary meaning. The reasonableness of the imposition of the requirement or condition in that paragraph, therefore, must be examined by reference to the relevant circumstances, including in the case of a requirement or condition imposed by a government or statutory body any relevant policy objectives. In par.(c) the circumstances can include economic, financial and policy factors.
31. The Board held that a tribunal or court cannot examine economic and financial considerations in considering s.17(5) because such an examination would make the provisions of s.29(2) otiose. Section 17(5)(c) and s.29(2), however, do not serve identical functions. Section 29(2) is confined to situations where the provider of the services is being asked by the complainants to provide them "in a special manner". Because it is so confined, s.29(2) does not duplicate what falls for consideration under s.17(5)(c). Further, s.29(2) applies only in relation to discrimination on the ground of impairment; s.17(5)(c) applies in a far wider range of situations. In considering the Corporation's argument that it acted reasonably for the purpose of s.17(5)(c), therefore, the Board was not duplicating any inquiry which could arise under s.29(2), even though it may have had to examine the same or similar evidence under both provisions.
32. In my opinion, therefore, Phillips J. was correct in holding that the Board had erred in law in determining the meaning of the term "reasonable" in s.17(5)(c).
33. It follows that the Board must reconsider its findings in relation to the two requirements or conditions which it found existed in this case. In reconsidering whether the imposition of the requirements or conditions was reasonable, the Board must examine all the circumstances of the case. This inquiry will necessarily include a consideration of evidence viewed from the point of view of the appellants and of the Corporation. I should note that it was common ground between the parties that the onus was on the Corporation to produce evidence to show that the relevant requirements or conditions were reasonable. However, I cannot accept that the concession of the Corporation was correctly made. A finding that the requirement or condition imposed was not reasonable is an essential element in proving a breach of s.17(5). A complainant has the onus of proving the element contained in par.(c): see Vines v. Djordjevitch (1955) 91 CLR 512, at pp 519-520; Roddy v. Perry (No.2) (1957) 58 SR (NSW) 41, at p 47. Exemption from the provisions of the Equal Opportunity Act 1984 (Vic.)
34. If, after reconsidering the evidence, the Board is satisfied that the acts of the Corporation constitute a breach of ss.17 and 29(1) of the Act, the Board will have to determine whether the prima facie unlawfulness of the acts of the Corporation is neutralised by the provisions of s.39(e)(ii) of the Act. The Board has already held that s.39(e)(ii) did not prevent the acts of the Corporation from being unlawful acts of discrimination. But in the Supreme Court, Phillips J. reversed that finding. It, therefore, becomes necessary to examine the correctness of his Honour's finding.
35. Section 39(e)(ii) provides that the Act does not render unlawful an act done by a person if it was necessary for the person to do it in order to comply with a provision of any other Act. The Transport Act impliedly gives power to the Minister responsible for public transport in Victoria to give directions to the Corporation. Section 31(1) of the Transport Act provides:
"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."The specific direction on which the Corporation relies in this appeal is the initial direction given to the Corporation, orally, following the Cabinet meeting in July 1989. It was a direction given by the Minister, through the Director-General, for the implementation of the Cabinet decision to change various aspects of the public transport system. It was not contended by the appellants that the giving of an oral direction is outside the ambit of s.31(1) of the Transport Act. The direction given was as follows:
"the Minister directed the (Corporation) through the Director-General of Transport, Mr. J. King, to implement the Cabinet resolution approving the scratch ticket system and the driver-only trams".36. The validity of the direction was not challenged by the appellants until the hearing in this Court on 5 February 1991. Consequently, the Minister was not a party to or intervener in the proceedings. Although it would have been desirable to have made the Minister a party to the proceedings, it was not strictly necessary. The Minister is not bound by the present proceedings. Furthermore, counsel for the Corporation did not suggest that the validity of the direction could not be examined in this appeal provided that the examination of that issue did not require the calling of evidence. To that important question I now turn.
37. While the Minister is not himself a person providing goods and services and does not fall within the ambit of s.29(1), he is deemed to have committed an unlawful discriminatory act in directing the Corporation if the Corporation is guilty of a contravention of s.29 of the Act. This conclusion is the result of s.5 which provides that the Act is intended to bind the Crown and s.35 which provides that, where one person counsels, requests, demands or procures another person to act and that person does act in contravention of the Act, both persons shall be jointly and severally liable under the Act in respect of the contravention. If the discriminatory act of the Corporation is unlawful, it is jointly and severally the unlawful act of the Minister.
38. The question then is whether s.31(1) of the Transport Act, properly construed, and read in conjunction with the Equal Opportunity Act, authorises the Minister to give a direction which overrides the protective provisions of the latter Act. It is clear enough that, for the purpose of s.39(e)(ii), a direction of the Minister, made under s.31(1), is not itself "an act done by a person" which "was necessary for the person to do ... in order to comply with a provision of" any other Act. In Clinch v. Commissioner of Police (1984) EO.C. 92-115, the Commissioner of Police claimed that, in refusing to employ the complainant, he was acting in compliance with a requirement of "any other Act" and hence was exempted from complying with the Anti-Discrimination Act (N.S.W.) because of the provision of s.54(1) of that Act which is the equivalent of s.39(e)(ii) of the Victorian Act. The Equal Opportunity Tribunal of New South Wales held that, in order to fall within the exception in s.54, the Commissioner had to demonstrate that his conduct occurred pursuant to an actual requirement of an Act and that it was necessary for him to pursue such a course of conduct. The Tribunal held that the requirement of the "other Act" must be mandatory and specific. The terms of s.39(e)(ii) are different from s.54(1) of the New South Wales legislation in that s.39(e)(ii) refers to "an act done by a person if it was necessary for the person to do it in order to comply with a provision of ... any other Act" (emphasis added). Nevertheless, the reference to necessity appears in both Acts, and the principle of Clinch - which I think was correctly decided - means that a Minister when exercising a discretion conferred on him or her by "an Act" is not within the protective cloak of s.39(e)(ii).
39. Nevertheless, if the direction in the present case was lawfully made under s.31(1) of the Transport Act, neither the Corporation nor the Minister was guilty of any unlawful act of discrimination. Phillips J. held, correctly in my opinion, that s.31(1) of the Transport Act is not merely an empowering provision, but a provision which obliges the Corporation to comply with specific directions given to it by the Minister. Moreover, I agree with his Honour that what the Corporation did was necessarily done in order to comply with the direction. Consequently, if the direction was valid, the Corporation's acts were not unlawful.
40. The power of the Minister to give directions under s.31(1) is subject to the operation of the general law. By the general law, I mean the body of common law and equitable rules which are supplemented or amended by statutes and regulations and other instruments having the force of law. Section 31(1), therefore, would not authorise a direction that the Corporation commit a crime or tort or breach a contract or by-law. Nor would it authorise a direction that the Corporation commit a breach of a statute such as the Act. These propositions, though not directly expressed in the Transport Act, are self-evident. They are self-evident because, under a government of laws and not of men and women, it is axiomatic that, in the absence of express words or necessary intendment, Parliament does not intend the recipient of the power to authorise a Minister, statutory body or government official to break the general law of the land. The argument for the Corporation did not contest the truth of these propositions. But it contended that regard had to be given to s.39(e)(ii) in determining whether the Minister could lawfully give a direction to the Corporation to do that which, because of the Act, the Corporation could not otherwise do of its own initiative. In other words, the Corporation contended that, since s.39(e)(ii) took an act outside the operation of the Act if it was necessarily done in order to comply with a provision of another Act, nothing in the Act made the direction of the Minister unlawful. This argument is not without force. But in the end the question is whether, in enacting s.31(1), Parliament intended that the Minister could give directions which had the effect of converting an otherwise unlawful act of the Corporation into a lawful act. Now, as I have said, it is axiomatic that, in conferring a power such as s.31, Parliament does not intend to authorise the giving of directions to perform acts which are unlawful. It is but a short step to infer that, in the absence of a plain intention, Parliament, in conferring such a power, also does not intend the recipient of the power to authorise acts which, but for the direction, would be unlawful. And in the absence of a contrary legislative indication, it is an inference which should be drawn. Consequently, in my opinion, Parliament cannot be taken to have authorised the Minister to give directions to the Corporation to perform acts which but for the directions would be a breach of the Act. The present case is altogether different from one where the Minister has a statutory duty to give the direction.
41. The direction of the Minister, therefore, was not authorised by the Transport Act. No act done pursuant to it is exempted by s.39(e)(ii). Consequently, Phillips J. was in error in holding that the Board had erred in law in not upholding the Corporation's claim for exemption from the operation of the Act pursuant to s.39(e)(ii) of the Act.
Order 56 of the Supreme Court Rules (Vic.)
42. While in order to decide the present appeal it is not necessary to determine the availability to the Corporation of an appeal mechanism pursuant to the Victorian Supreme Court Rules, in my view the Corporation was not entitled to appeal from the decision of the Board on a point of law out of time by resort to originating motion under Ch.I, O.56. The relevant facts are as follows: the Supreme Court granted an order nisi to the Corporation pursuant to s.49(4) of the Act. That sub-section provided for a right of appeal within 28 days of the Board's decision. After 28 days had expired, the Corporation sought to challenge the Board's decision on the ground, inter alia, that it had misconstrued s.29(2) of the Act and that it had erred in law in concluding that s.29(2)(b) was not available to the Corporation to render lawful the acts complained of. The Corporation then took out an originating motion pursuant to O.56 of the Supreme Court Rules, which allows for judicial review within 60 days of a decision. As the Corporation had succeeded on other grounds, Phillips J. declined to determine whether s.29(2)(b) was available to the Corporation. He dismissed the originating motion taken out by the Corporation without ruling upon its merits.
43. Before this Court, counsel for the Corporation argued that, while the Act does provide a right of appeal, there is an alternative appeal mechanism available under the Supreme Court Rules and that it was not out of time in seeking to raise the s.29(2) defence. At the relevant time, s.49(4) of the Act read as follows:
"Any party to proceedings before the Board may, within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party to the proceedings and on the Registrar of the Board, appeal to the Supreme Court against that order on a question of law only as if the order were an order of a Magistrates' Court and the provisions of Part XI of the Magistrates' Courts Act 1971 shall, with such adaptations as are necessary, apply accordingly."Section 88 of the Magistrates' Courts Act provided for appeal by way of order nisi within one month of the order complained of, but it did so without prejudice to such other right or remedy as may exist. The Corporation described O.56 as another "right or remedy" within the meaning of s.88. Consequently, the Corporation claimed that it was entitled to avail itself of O.56 judicial review proceedings. It may be true that O.56 is another "right or remedy" within the meaning of s.88. But s.49(4) does not convert an appeal under that sub-section into an order of a Magistrates Court so that the appeal is under Pt XI of the Magistrates' Courts Act. The appeal is one under s.49(4) and must be lodged within 28 days. The provisions of Pt XI of the Magistrates' Courts Act apply to that appeal "with such adaptations as are necessary". The effect of the "as if" clause in s.49(4) was to apply the procedural machinery of Pt XI of the Magistrates' Courts Act 1971 (now repealed) to an appeal under s.49(4) of the Act with such modifications as were necessary. The policy of s.49(4) as discerned from its terms is that an order of the Board can be challenged only on a question of law by an appeal to the Supreme Court lodged "within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party". Any provision of Pt XI of the Magistrates' Courts Act which is inconsistent with the legislative intention revealed by that policy must necessarily be modified in its application to an order made by the Board. That means, inter alia, that those parts of s.88 which give a right to appeal within one month of the making of an order and provide that an appeal is not without prejudice to any other "right or remedy" are not applicable to an order under the Act.
44. The Supreme Court, therefore, had no jurisdiction to hear the proceedings based on O.56.
Validity of the Board's Orders
45. Before Phillips J., the Corporation argued that certain orders of the Board were null and void for vagueness and uncertainty. Since the orders of the Board must be set aside and the matter reconsidered in accordance with the reasons of the Court, any ruling on the orders which the Board made serves no useful purpose.
Order
46. The appeal is allowed.
Orders
Appeal allowed.
Application for special leave to cross-appeal refused.
Set aside the order of the Supreme Court of Victoria allowing the appeal to that Court and dismissing the complaints. In lieu thereof, order that the matter be remitted to the Equal Opportunity Board to determine in accordance with s.17(5)(c) of the Equal Opportunity Act 1984 (Vict.) whether the requirements of conditions involved in the introduction of scratch tickets and removal of conductors from trams are reasonable and to determine the complaints accordingly.
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