IW v City of Perth
High Court of Australia · 1997
IW v City of Perth (1997) 191 CLR 1
A council votes 13 to 12 against a drop-in centre for people with HIV, and the Tribunal finds that five councillors voted on 'the AIDS factor'. Why did the High Court still dismiss the discrimination complaint?
The Court decided the aggrieved-person question on the Act as it stood in 1990. Section 17 of the Equal Opportunity Amendment Act 1992 (WA) amended s 66A of the Equal Opportunity Act 1984 (WA), and s 66A(1a) now provides that a person discriminates against another on the ground of impairment if, on the ground of the impairment of any relative or associate of the aggrieved person (or a characteristic that appertains generally to, or is generally imputed to, persons with that impairment), the discriminator treats the aggrieved person less favourably than a person without such an impairment would be treated in the same or not materially different circumstances. The amending Act's provisions in the range that includes s 17 are listed as commencing on 8 January 1993, the date Dawson and Gaudron JJ also give. Gummow J said that had the Act been in that form, the reference to associates may have produced the result that PLWA (but not the appellant) was an aggrieved person. That remark concerned PLWA, and the case does not decide that IW himself would have had standing under the amended provision. LIMITS: IW was decided under a State Act, the Equal Opportunity Act 1984 (WA), and no majority of the High Court decided the causation or comparison questions: what is said on them is the view of individual Justices. Gummow J reached his conclusions on decision-making by the Council after saying that his conclusions on services and standing 'are sufficient to dispose of the appeal', so they were additional reasoning and not necessary to his disposition. On the Commonwealth Disability Discrimination Act 1992 (Cth), Gummow, Hayne and Heydon JJ in Purvis v New South Wales [2003] HCA 62 held at [224]-[225] that the circumstances to be compared under s 5(1) are all the objective features surrounding the treatment, including that a pupil had acted as he had, and none is excluded because it is connected with the disability. McHugh and Kirby JJ, in reasons that were dissenting in Purvis, said at [165]-[166] that the 'but for' statements in IW were made about a decision of a corporate body by its councillors' votes and that the weight and course of authority no longer accepts 'but for' as the accepted test of causation in anti-discrimination legislation; that is the view of two Justices, not a majority holding, and Purvis does not overrule IW.
What happened?
In January 1990 People Living with AIDS (WA) Inc ("PLWA"), an incorporated association whose membership was confined to people who are HIV positive, applied to the City of Perth for approval to use premises as a daytime drop-in centre (Dawson and Gaudron JJ). The premises were in an area zoned for shopping use, so approval was needed, and the City Planner recommended it (Brennan CJ and McHugh J). On 19 March 1990 the Council, by 13 votes to 12, lost a motion that the application be approved for a trial period of 12 months (Dawson and Gaudron JJ; Gummow J). Councillor Nattrass abstained, and the Council gave no reasons (Dawson and Gaudron JJ; Brennan CJ and McHugh J). On 6 April 1990 the Minister allowed PLWA's appeal and approved the application (Dawson and Gaudron JJ).
PLWA, and later IW (a member) and two others, complained to the Commissioner for Equal Opportunity that the Council had contravened s 66K of the Equal Opportunity Act 1984 (WA), which makes it unlawful for a person who provides services to discriminate on the ground of the other person's impairment by refusing to provide them (Brennan CJ and McHugh J). The Equal Opportunity Tribunal found that the votes of five of the 13 councillors were "grounded on the AIDS factor" and were causative, in that but for them the decision would not have been made (Brennan CJ and McHugh J, 'The history of the litigation'). It ordered the City and six councillors to pay damages under s 127(b)(i) (Dawson and Gaudron JJ). Murray J dismissed an appeal on a question of law, but the Full Court of the Supreme Court of Western Australia (Ipp, Wallwork and Scott JJ) held that the Tribunal had erred in law (Brennan CJ and McHugh J, 'The history of the litigation').
What did the Court decide?
The appeal to the High Court was dismissed with costs. Toohey and Kirby JJ would have allowed it, and Kirby J would have returned the councillors' defence under s 680 of the Local Government Act 1960 (WA) to the Tribunal.
Proposition
What is the principle?
The appeal was dismissed on the Equal Opportunity Act 1984 (WA) as it stood in 1990, without one common reason. Five Justices held that IW's claim under s 66K(1)(a) failed because the Council had not refused to provide a service. Brennan CJ and McHugh J held that the City provided no service of giving approvals or of refusing them, the Council acting as an adjudicator on a deliberative application. Dawson and Gaudron JJ took the service to be the discretion to grant or withhold approval, so that a refusal to provide it needed a refusal to consider the application. Gummow J held that the Council did not refuse to deal with the application. Dawson and Gaudron JJ and Gummow J also held that IW was not an 'aggrieved person'; Toohey and Kirby JJ held that he was.
Toohey, Gummow and Kirby JJ each held that a council's refusal was on the ground of impairment where the discriminatory ground of five of the 13 councillors voting against the motion was causative of the outcome. Toohey J reasoned that each vote in the majority was causative in the 'but for' sense and that s 5 of the Act did not require the ground to be the dominant or substantial reason. Kirby J said an unlawful consideration must be a real reason and not a trivial or insubstantial one, and that the inquiry is an objective characterisation of the ground, with subjective intention relevant but not decisive. Gummow J, after the appeal was disposed of on other grounds, reasoned by analogy with bias that it is no answer that only a minority of those comprising the majority acted on the unlawful ground. Dawson and Gaudron JJ found it unnecessary to deal with the point.
Toohey J, Gummow J (agreeing with Toohey J's reasons) and Kirby J rejected the view of the Full Court majority (as described by Kirby J under 'The comparison issue') that the notional person with whom the aggrieved person is compared under s 66A(1) keeps the characteristics generally attributed to people with the impairment. Toohey J said that in making the comparison the characteristics in s 66A(1)(b) and (c) are to be ignored, because otherwise a respondent who would treat everyone with those characteristics alike could never discriminate on the ground of impairment. Kirby J reached the same result by reading 'such an impairment' in the closing words of s 66A(1) as picking up the 'ground of impairment' in the opening words, including paragraphs (a) to (d). Dawson and Gaudron JJ found it unnecessary to deal with the point.
Why does this case matter?
The passages from this case that students are most likely to remember are not the same thing as the reasons on which the order rests, and the difference is the lesson. An answer that cites the case for one clean rule has usually not looked at the order, at how many Justices stand behind a sentence, or at which Act was being read. Examiners reward the answer that keeps the result apart from the reasoning around it.
Exam and application relevance
State the order, and then say what each step you rely on was in the reasons of the Justices who took it. Where you use a point about the ground of a decision or about the comparator, name the Justices who made it, and say that the appeal was not dismissed on it.
The case was decided on the Equal Opportunity Act 1984 (WA) as it stood in 1990 and is not a statement of the current text of that Act or of any other.
Where the causal question arises under the Disability Discrimination Act 1992 (Cth) s 5(1), Purvis construed that provision, and the question of why the person was treated as they were is put beside any 'but for' language drawn from this case. Under another statute, Purvis is an analogy and not a holding on that statute.
Check your understanding
1. The order dismissing the appeal did not rest on how the ground of a council's decision is identified. What did it rest on, and which Justices took each step? 2. How did Kirby J describe the role of subjective intention in deciding whether a refusal was on the ground of impairment, and what must an unlawful consideration be to count? 3. What did Toohey J say about the characteristics in s 66A(1)(b) and (c) when the comparison is made, and what reason did he give?