CITATION: Sydney University Postgraduate Representative Assn v Minister for Transport & ors (No 3); Nuevo v Minister for Transport & ors (No 3); Neira v Minister for Transport & ors (No 3) [2006] NSWADT 342 DIVISION: Equal Opportunity Division APPLICANT Sydney University Postgraduate Representative Association (SUPRA) FIRST RESPONDENT Minister for Transport Services SECOND RESPONDENT Director General, Ministry of Transport THIRD RESPONDENT State Transit Authority FOURTH RESPONDENT State Rail Authority APPLICANT Arturo Bravo Nuevo FIRST RESPONDENT Minister for Transport Services PARTIES: SECOND RESPONDENT Director General, Ministry of Transport THIRD RESPONDENT State Transit Authority FOURTH RESPONDENT State Rail Authority APPLICANT Robert Martinez Neira FIRST RESPONDENT Minister for Transport Services SECOND RESPONDENT Director General, Ministry of Transport THIRD RESPONDENT State Transit Authority FOURTH RESPONDENT State Rail Authority FILE NUMBER: 041012; 041013; 041014 HEARING DATES: On the papers SUBMISSIONS CLOSED: 11/15/2006 DATE OF DECISION: 12/01/2006 BEFORE: Rees N - Judicial Member; Antonios Z - Non Judicial Member; Mooney L - Non Judicial Member CATCHWORDS: Race Discrimination - Goods and Services MATTER FOR DECISION: Remedies Anti-Discrimination Act 1977 LEGISLATION CITED : Transport Administration Act 1988 Transport Administration Amendment (Travel Concession) Act 2006 CASES CITED: SUPRA v Minister for Transport Services [2006] NSWADT 83 SUPRA v Minister for Transport Services (No 2) [2006] NSWADT 260. APPLICANT L Goodchild, barrister REPRESENTATION: RESPONDENT T Anderson, barrister ORDERS: SUPRA v Minister for Transport and others (file no 041012); 1. Orders numbered 2 and 3 made by the Tribunal on 6 September 2006 are set aside; Bravo Nuevo v Minister for Transport and others (file no 041013); 1. Orders numbered 2 and 3 made by the Tribunal on 6 September 2006 are set aside; Martinez Neira v Minister for Transport and others (file no 041014); 1. Orders numbered 2 and 3 made by the Tribunal on 6 September 2006 are set aside. REASONS FOR DECISION Introduction 1 In this case three separate complaints of discrimination on the ground of race against the same four respondents were heard together with the consent of the parties. The complaints concerned the NSW Government's longstanding policy of not permitting full-fee paying overseas university students to have concessional travel on public transport services. In a decision which was published on 23 March 2006 the Tribunal found all three complaints to be substantiated because the practice in question constituted discrimination on the ground of nationality in the provision of a service (SUPRA v Minister for Transport Services [2006] NSWADT 83). 2 At the request of counsel for the parties the issues of the respondents' liability for conduct which was alleged to contravene the Anti-Discrimination Act 1977 (the Act) and the remedies which may be awarded to the applicant's in the event that the complaints were found to be substantiated were dealt with separately. On 6 September 2006 the Tribunal made a number of orders against the respondents in each complaint and it published reasons for those orders (SUPRA v Minister for Transport Services (No 2) [2006] NSWADT 260). 3 Orders of the same nature were made in relation to each complaint. The second, third and fifth orders made in each complaint are currently relevant. They provided as follows: (2) When exercising his powers under s 88(1) of the Transport Administration Act 1988 to determine eligibility for concessional travel on public transport services the first respondent must not discriminate against applicants for concessional travel entitlements which are available to tertiary students on the ground of their nationality. (3) Order No 2 comes into effect three months after the date of these orders. (5) The parties have liberty to apply generally on two days' notice to the other parties 4 The respondents have now exercised the liberty granted to them by order no 5. They seek to have orders numbered 2 and 3 set aside because the law has been changed in a manner which they claim renders lawful the conduct which the Tribunal directed the first respondent to cease doing when he exercises his powers under s 88(1) of the Transport Administration Act 1988 because it contravened the Anti-Discrimination Act 1977. The applicants have not opposed the orders sought by the respondents to set aside two of the orders made in relation to each of the complaints on 6 September 2006. 5 The Transport Administration Amendment (Travel Concession) Act 2006 commenced operation on the date of its assent which was 28 September 2006. The shorthand effect of that Act is to permit regulations to be made pursuant to the Transport Administration Act 1988 which provide that particular classes of persons are not entitled to concessional travel on public transport services. This regulation making power is expressed to operate despite anything in the Anti-Discrimination Act 1977. No such regulations have been made since 28 September 2006. However, clause [4] of Schedule 1 to the Transport Administration Amendment (Travel Concession) Act provides as follows: (1) Until the regulations otherwise provide, full fee paying overseas students: (a) are not entitled to be issued with a concessional travel pass (as referred to in section 88) of a kind that is available only to persons who are students at tertiary educational institutions, and (b) are not entitled to the benefit of concessional travel in circumstances where only a person who is entitled to be issued with such a pass is entitled to that benefit. (2) This clause extends to travel under a scheme for Government subsidised travel as referred to in section 39. (3) In this clause, "full fee paying overseas student" means a person who has been permitted to enter Australia on a visa issued on the basis that while in Australia the person will be enrolled as a full-time student at a tertiary educational institution, paying the full cost of their tuition and will have sufficient funds to meet their educational and living costs in Australia. 6 The effect of clause [4] of Schedule 1 of the amending Act, which inserts new clauses into Schedule 7 of the Transport Administration Act , is to render "full fee paying overseas students" ineligible for concessional travel on public transport. While the new clauses in Schedule 7 of the Transport Administration Act are not expressed to operate despite anything in the Anti-Discrimination Act , they override the Anti-Discrimination Act because they are a later enactment. The applicants have not sought to advance any arguments to the contrary. As the amendments to the Transport Administration Act do not operate retrospectively there is no suggestion that the Tribunal's finding that the complaints were substantiated and its orders that the respondents pay damages to the applicants should be disturbed. 7 The amendment to the Transport Administration Act which came into effect on 28 September 2006 renders lawful the conduct by the first respondent which the Tribunal found to be unlawful and which it ordered him to stop. Consequently, the relevant orders made by the Tribunal on 6 September 2006 must be set aside. 8 The Tribunal makes the following orders: SUPRA v Minister for Transport Services and ors (file no 041012) 1. Orders numbered 2 and 3 made by the Tribunal on 6 September 2006 are set aside. Bravo Nuevo v Minister for Transport Services & ors (file no 041013) 1. Orders numbered 2 and 3 made by the Tribunal on 6 September 2006 are set aside. Martinez Neira v Minister for Transport Services & ors (file no 041014) 1. Orders numbered 2 and 3 made by the Tribunal on 6 September 2006 are set aside. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.