FEDERAL COURT OF AUSTRALIA Richardson v ACT Health & Community Care Service [2000] FCA 654 DISCRIMINATION LAW – appeal – exception to discrimination – meaning of "a purpose of" in s 27 of the Discrimination Act 1991 (ACT) – objective or subjective test Discrimination Act 1991 (ACT) s 27 Colyer v State of Victoria [1998] 3 VR 759 referred to Re ACT Health and Community Care Service v Vella (AT98/14 of 4 November 1998) disapproved SUSAN RICHARDSON v ACT HEALTH AND COMMUNITY CARE SERVICE and AUSTRALIAN CAPITAL TERRITORY ACT HEALTH AND COMMUNITY CARE SERVICE and AUSTRALIAN CAPITAL TERRITORY A 68 of 1999 JUDGES: MILES, HEEREY AND FINKELSTEIN JJ DATE: 19 MAY 2000 PLACE: MELBOURNE (HEARD IN CANBERRA) IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 68 of 1999 DISTRICT REGISTRY On appeal from the Supreme Court of the Australian Capital Territory BETWEEN: SUSAN RICHARDSON Appellant AND: ACT HEALTH AND COMMUNITY CARE SERVICE and AUSTRALIAN CAPITAL TERRITORY Respondents JUDGES: MILES, HEEREY AND FINKELSTEIN JJ DATE OF ORDER: 19 MAY 2000 WHERE MADE: MELBOURNE (HEARD IN CANBERRA) THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The order of the trial judge be set aside and in lieu thereof it is ordered that the decision of the Discrimination Tribunal made on 5 January 1999 be set aside and the matter be remitted to the Tribunal for reconsideration according to law. 3. The respondents pay the appellant's taxed costs of the appeal and of the hearing below. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 68 of 1999 DISTRICT REGISTRY On appeal from the Supreme Court of the Australian Capital Territory BETWEEN: SUSAN RICHARDSON Appellant AND: ACT HEALTH AND COMMUNITY CARE SERVICE and AUSTRALIAN CAPITAL TERRITORY Respondents JUDGES: MILES, HEEREY AND FINKELSTEIN JJ DATE: 19 MAY 2000 PLACE: MELBOURNE (HEARD IN CANBERRA) REASONS FOR JUDGMENT MILES J: 1 The background to this appeal and the issues raised are set out in the judgment of Finkelstein J, a draft of which I have had the advantage of reading. 2 However, I think that the primary judge was correct in his reasoning that the tribunal found as a fact that the relevant program "was designed to meet the special needs of disadvantaged persons", and in concluding that that was a finding which was open and might not be challenged on appeal to the Supreme Court as it did not involve a question of law. 3 Section 27 of the Act is concerned with excluding from conduct made unlawful by the Act, those acts which are accompanied by a purpose of the kind provided for in that section. In evaluating that conduct it is necessary to look at the state of mind of the person whose conduct is in question. 4 In the present case, as Finkelstein J observes, the tribunal does not appear to have embarked upon an inquiry in order to determine whether the decision to refuse to allocate a place in the Fisher houses to the appellant (conversely the decision to allocate all such places to disadvantaged persons other than the appellant) was taken for a purpose recognized as lawful by s 27. However, it flows from the tribunal's express finding that the decision was taken in the course of a program designed to meet the special needs of disadvantaged persons that a purpose of the decision was, on the face of it, "to afford members of a relevant class of persons access to facilities, services or opportunities to meet their special needs" within the terms of s 27(b). 5 I accept as Kenny JA, as she then was, put it in Colyer v State of Victoria [1998] 3 VR 759, that the tribunal had to be satisfied that the purpose was "genuine and not colourable", but in the absence of anything to suggest the contrary, I think that the finding of the tribunal that the decision was taken in the course of and as part of a program "designed to meet the special needs of disadvantaged persons" is sufficient to justify the further finding that the decision was an act within s 27(b) and therefore not unlawful. 6 I would dismiss the appeal. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles. Associate: Dated: 19 May 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 68 of 1999 DISTRICT REGISTRY On appeal from the Supreme Court of the Australian Capital Territory BETWEEN: SUSAN RICHARDSON Appellant AND: ACT HEALTH AND COMMUNITY CARE SERVICE and AUSTRALIAN CAPITAL TERRITORY Respondents JUDGES: MILES, HEEREY AND FINKELSTEIN JJ DATE: 19 MAY 2000 PLACE: MELBOURNE (HEARD IN CANBERRA) REASONS FOR JUDGMENT HEEREY J: 7 I agree with Finkelstein J. I certify that the preceding one (1) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 19 May 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 68 of 1999 DISTRICT REGISTRY On appeal from the Supreme Court of the Australian Capital Territory BETWEEN: SUSAN RICHARDSON Appellant AND: ACT HEALTH AND COMMUNITY CARE SERVICE and AUSTRALIAN CAPITAL TERRITORY Respondents JUDGES: MILES, HEEREY AND FINKELSTEIN JJ DATE: 19 MAY 2000 PLACE: MELBOURNE (HEARD IN CANBERRA) REASONS FOR JUDGMENT FINKELSTEIN J: 8 This appeal involves the interpretation of s 27 of the Discrimination Act 1991 (ACT). The issue is whether s 27(b) permits the first respondent, ACT Health and Community Care Service, to discriminate on the basis of cost in determining whether accommodation should be granted to a person who suffers an impairment. 9 The appellant, Susan Richardson, suffers from advanced multiple sclerosis. She is in need of medical and other support. The Service provides accommodation and care designed to meet the special needs of people like Ms Richardson. One of its programs is the provision of accommodation at specially constructed town houses, two at Macquarie and two at Fisher. These houses suit the needs of people who are not so elderly that they should be placed in a nursing home. 10 Ms Richardson applied for accommodation at one of the Fisher houses shortly after it was opened in 1988. Her application was refused. The reason given for denying Ms Richardson accommodation was that her support needs were too high and there were not sufficient funds to meet the costs associated in providing her with care. 11 A complaint was made to the Discrimination Tribunal. It was alleged that by refusing accommodation to Ms Richardson the Service had engaged in unlawful discrimination contrary to the provisions of the Discrimination Act. The Discrimination Act is an important piece of legislation. It is designed to eliminate discrimination on the ground of sex, marital status, age, race, religious or political conviction, impairment and other attributes. It seeks to promote equality, including equality of opportunity, of all men and women. It attempts to achieve those objectives by making unlawful certain forms of discrimination. 12 The Act applies to discrimination on the ground of various attributes including "impairment": see the list in s 7(1). Impairment is defined in s 4(1) in a way that covers the effects of multiple sclerosis. According to s 8(1) a person will discriminate against another if "(a) the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or (b) the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging persons because they have an attribute referred to in section 7". 13 The acts that amount to unlawful discrimination are found in Part III. For present purposes it is necessary to mention s 20 and s 21. So far as is relevant, those sections provide: "20. It is unlawful for a person who (whether for payment or not) provides goods or services or makes facilities available, to discriminate against another person – (a) by refusing to provide those goods or services or make those facilities available to the other person; … (c) in the manner in which the firstmentioned person provides those goods or services or makes those facilities available to the other person. 21. (1) It is unlawful for a person (whether as principal or agent) to discriminate against another person – (a) by refusing the other person's application for accommodation; … (2) It is unlawful for a person (whether as principal or agent) to discriminate against another person – (a) by denying the other person access, limiting the other person's access, to any benefit associated with accommodation occupied by the other person; …" 14 The Service did not seriously dispute that in refusing accommodation to Ms Richardson it engaged in discriminatory conduct. So much may be accepted. Ms Richardson was suffering from a more serious form of impairment than other applicants for accommodation at the Fisher home. Denying accommodation to her in that circumstance amounts to unfavourable treatment on account of an impairment. 15 However, the Service contended that this discrimination was not unlawful because it fell within one of the permitted exemptions. The exemptions are found in Part IV. The one relied upon is that mentioned in s 27 which, at the relevant time, provided: "Nothing in Part III renders it unlawful to do an act a purpose of which is – (a) to ensure that members of a relevant class of persons have equal opportunities with other persons; or (b) to afford members of a relevant class of persons access to facilities, services or opportunities to meet their special needs." "Relevant class of persons" is defined in s 4(1) to mean "a class of persons the members of which are identified by reference to an attribute referred to in section 7". 16 The Tribunal found that the conduct complained of was not unlawful, because it fell within s 27. In this regard the Tribunal cited with approval a passage from the decision of the Administrative Appeals Tribunal in Re ACT Health and Community Care Service v Vella (AT98/14 of 4 November 1998). There the Tribunal said that s 27 means: "[T]hat nothing done in the course of a program designed to meet the special needs of any disadvantaged persons can be the subject of a complaint of discrimination under the Act by any person, including a member of the class of disadvantaged persons that the program is intended to benefit … The section is not confined to blocking claims of discrimination by those outside the scope of the program; the opening words of section 27 block a claim by any person of discrimination arising from an act done in the course of administering the program." 17 Applying that construction to the case at hand the Tribunal found that "the action taken by the Respondent is taken in the course of a program designed to meet the special needs of disadvantaged persons. Therefore, it cannot be the subject of a complaint of discrimination under the Act …" 18 An appeal was taken to the Supreme Court of the Australian Capital Territory on a question of law. That question, after some amendment, was in the following terms: "Whether s 27 of the Discrimination Act precludes the making of a complaint under Part III of the act by a person participating in a special needs program or who has applied for participation in a special needs program." 19 The parties accept that this formulation did not raise the issue that required determination. First, it was not suggested that s 27 prevents a person from lodging a complaint with the Tribunal: the section is not concerned with the regulation of complaints, but with making lawful what would otherwise be unlawful conduct. Second, on no view of the matter does s 27 permit all forms of discrimination against a person in a special needs program. Indeed, it is not in dispute that in an appropriate case there can be unlawful discrimination against such a person. The true issue to be resolved was whether, on the proper construction of s 27, the discrimination engaged in by the Service was unlawful. 20 It is not clear whether the trial judge accepted the construction that was placed upon s 27 by the tribunal in Vella. It is likely that he did not. His Honour referred to the decision of the Court of Appeal in Colyer v State of Victoria [1998] 3 VR 759 which considered the meaning of s 82(1) of the Equal Opportunity Act 1995 (Vic). That section is similar to s 27. It provides an exception to discrimination for "anything done in relation to the provision to people with a particular attribute of special services, benefits or facilities that are designed – (a) to meet the special needs of those people; or (b) to prevent or reduce a disadvantage suffered by those people in relation to their education, accommodation, training or welfare." 21 The Court of Appeal held that to fall within the exemption it was necessary to show that the person accused of discrimination held the intention that the service etc met the ends mentioned in par (a) or par (b). That is the word "designed" in s 82(1) meant "intended for a definite purpose" and not "reasonably adapted to achieve the objects" referred to in par (a) or par (b). 22 The trial judge then referred to the finding made by the Tribunal that the housing program "was designed to meet the special needs of disadvantaged persons" and said that this finding, which was open on the evidence, was a finding of fact that could not be challenged on appeal. Accordingly his Honour found that the requirements of s 27(b) were satisfied. In the result the appeal was dismissed. 23 Before turning to consider whether the views of the Tribunal and of the trial judge were correct, it is as well to direct some comments to the approach that a court should adopt when dealing with legislation such as the Discrimination Act. This type of enactment is concerned with human rights and should be given a construction that furthers its fundamental purpose of eliminating discrimination and advancing equality. No strict construction is required. If the grammatical meaning of the words used does not further the objects of the enactment, then a strict approach to construction must be shunned. 24 As regards the exceptions, however, a different approach is desirable. An expansive interpretation is often likely to circumvent or threaten the underlying object of the legislation. It follows that a strict, and not a liberal, approach is usually required. This will ensure that the overall dominant purpose of the Act is put into effect. 25 Section 27 is concerned to make lawful two types of conduct. First, it is designed to ensure that people who share a particular attribute may be provided facilities etc that are available to the general community. What it is intended to allow is "positive discrimination". Second, the section is designed to permit discrimination between persons who have one of the attributes mentioned in s 7 provided the discrimination results from the need to satisfy the special needs of those persons. So, for example, if limited facilities are available and one person in a class has a greater need for those facilities than another and is provided those facilities for that reason, the discrimination is not unlawful. 26 To determine whether discriminatory conduct is rendered lawful by the application of s 27 the act of discrimination must be for a permitted purpose. That is, the conduct which s 27 protects is not discrimination that has the effect of achieving equality, but discrimination which is intended to have that effect. The word "purpose" refers to the actual intention of the decision-maker or actor. The decision-maker's intention is a matter to be established by reference to the facts, including reference to the circumstances from which inferences may be drawn as to the state of mind of the decision-maker: compare Colyer above at 773 per Kenny JA. To determine whether the decision-maker holds the requisite state of mind, it will be permissible to enquire whether the conduct in question was capable of achieving equal opportunity (s 27(a)) or meeting special needs (s 27(b)). That enquiry may be necessary for the purpose of establishing that the claimed intention is one that is likely to have been held by the decision-maker. It is not, however, to substitute for an enquiry into the subjective state of mind of the decision-maker an objective criterion. It is merely one of the means by which a claimed subjective intention can be established, in cases where there may be doubt. 27 In view of the construction placed upon s 27 by the Tribunal, the requisite factual enquiry was not undertaken. Further, the Tribunal's finding which was referred to by the trial judge, namely that the housing program "was designed to meet the special needs of disadvantaged persons" should not be understood as a finding concerning the state of mind of the decision-maker. The full text of what the Tribunal said was that "the action taken by the Respondent is taken in the course of a program designed to meet the special needs of disadvantaged persons". It was not in dispute that the object of the program was to provide accommodation to meet the special needs of disadvantaged people. However, the fact that the particular decision about which complaint is made was taken in the course of such a program does not bring it within s 27. It was still necessary to determine the reason for taking that decision and in particular whether it was taken for a permitted purpose. As that was not the subject of any investigation the Tribunal and the trial judge, by refusing to set aside the decision of the Tribunal, fell into error. 28 Accordingly it will be necessary to allow the appeal, set aside the decision of the trial judge dismissing the appeal from the Tribunal, set aside the decision of the Tribunal and remit the matter to the Tribunal for reconsideration according to law. The appellant should have her costs of the appeal and of the hearing below. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 19 May 2000 Counsel for the Appellant: Mr F Purnell SC Solicitor for the Appellant: Welfare Rights and Legal Centre Ltd Counsel for the Respondents: Mr R Tracey QC with Mr R Bayliss Solicitor for the Respondents: ACT Government Solicitor Date of Hearing: 17 February 2000 Date of Judgment: 19 May 2000