Central Northern Adelaide Health Service v Atkinson CaseBase | (2008) 103 SASR 89 | (2008) 252 ALR 168 | (2008) 222 FLR 207 | (2008) 260 LSJS 227 | [2008] SASC 371 | BC200811606 CENTRAL NORTHERN ADELAIDE HEALTH SERVICE v ATKINSON (2008) 252 ALR 168 Australian Law Reports · 1 page SUPREME COURT OF SOUTH AUSTRALIA Bleby , Gray and Kelly JJ 5 August, 24 December 2008 [2008] SASC 371 Headnotes Civil and political rights — Discrimination — Relationship between Commonwealth and state laws — Prohibition in state law of discrimination on basis of race and age — Whether contravened by health services in favour of ethnic minorities or those under certain age — Whether such services satisfy exception to prohibition — (CTH) Racial Discrimination Act 1975 s 6A — (SA) Equal Opportunity Act 1984 ss 65,85P. Constitutional law — Inconsistency — Where federal contemplates concurrent operation of state law — Whether criterion for concurrent operation fulfilled in present case — Commonwealth Constitution s 109. Statutes — Interpretation — Modern purposive approach — Remedial construction — Rule against surplusage — Use of legislative debates. Words and phrases — “scheme or undertaking” — “particular race”. The appellant administered health services in a certain part of Adelaide. One of its health centres (the centre) provided medical care exclusively for certain ethnic minorities, being indigenous Australians and migrants to Australia, particularly those from the Horn of Africa an Indochina. It also provided specialised medical care for persons under the age of 25 years. The respondent sought medical care from the centre. He was refused, on the ground that he was neither from a relevant ethnic minority nor was he sufficiently young. The respondent made a complaint of discrimination to the South Australian Equal Opportunity Tribunal (the tribunal) under the Equal Opportunity Act 1984 (SA) (the EOA). The tribunal upheld the respondent’s complaint. The appellant appealed to the Full Court of the South Australian Supreme Court. One issue that arose was the interaction of the EOA with the Racial Discrimination Act 1975 (Cth) (the RDA), which implemented the Convention on the Elimination of Racial Discrimination (the Convention) into federal law. Held, per Gray J (Kelly J agreeing; Bleby J agreeing in part), allowing the appeal: (i) Section 65 of the EOA could be construed purposively as permitting a “scheme or undertaking for the benefit of persons of a particular race” so long as that benefit was the sole purpose of the scheme or undertaking, which would not be continued after that purpose was achieved: at [111]–[113]. Gerhardy v Brown (1985) 159 CLR 70 ; 57 ALR 472 ; Melville Homes Pty Ltd v Prime Ceramics Services Pty Ltd [1991] 2 VR 211 ; IW v City of Perth (1997) 191 CLR 1 ; 146 ALR 696 ; [1997] HCA 30 ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 ; 141 ALR 618 ; [1997] HCA 2 ; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 ; 153 ALR 490 ; [1998] HCA 28 ; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 ; 215 ALR 253 ; [2005] HCA 28 , considered Page 2 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 (ii) On this interpretation of s 65 of the EOA, that statute remained a law which “furthers the objects of the convention” within the meaning of s 6A of the RDA and thus operated concurrently with the RDA, instead of being void for inconsistency with that statute under s 109 of the Commonwealth Constitution. An alternative, literal intepretation of s 65 of the EOA, would have led to such inconsistency, as it would have permitting conduct in circumstances that would directly conflict with the convention and the RDA: at [74], [114], [118]. University of Wollongong v Metwally (1984) 158 CLR 447 ; 56 ALR 1 , considered (iii) The conduct of the appellant at the centre fulfilled the requirements of s 65 of the EOA and, therefore, did not constitute discrimination on the basis of race. In particular, it was not disqualified on the ground that it benefited more than one race, nor because it did not specify the races to which it applied: at [124]–[126], [130], [133]. Gerhardy v Brown (1985) 159 CLR 70 ; 57 ALR 472 , applied (iv) The above conduct also fulfilled the requirements of s 85P of the EOA and, thus, did not give rise to discrimination on account of age. In particular, it was not excluded on the basis that it was not directed at persons within a narrow age group or with needs that are similar. It was enough that it had been undertaken to meet age related needs: at [137]–[140]. (2008) 252 ALR 168 at 169 Appeal This was an appeal to the Full Court from a decision of the Equal Opportunity Tribunal of South Australia (Atkinson v Central Northern Adelaide Health Service [2008] SAEOT 5 ). OLIVER JONES SOLICITOR AND BARRISTER C Kourakis SC and T McLean instructed by Crown Solicitor for the appellant. R Manuel and L Stewart instructed by DLA Phillips Fox for the respondent. Bleby J. [1] I gratefully adopt the statement of the relevant facts relating to this appeal recorded in the reasons of Gray J. I will not repeat the various legislative provisions that have been relied on. [2] In my opinion the actions of the appellant came within the exception to the prohibition of racial discrimination contained in s 65 of the Equal Opportunity Act 1984 (SA) (the EOA). I reach that conclusion largely for the reasons given by Gray J. [3] The respondent’s argument emphasised and relied on the use of the word “particular” in s 65 of the EOA. He conceded that s 65 would protect a scheme or undertaking for the benefit of persons of more than one race. The purpose and effect of the scheme adopted by the respondent must be construed in the context and circumstances in which the respondent operated and in which the scheme was to operate. Gray J has adequately described those circumstances and that context. In those circumstances it was appropriate to identify the particular races the subject of the scheme by reference, in part, to the language criterion adopted. It might have been quite different if a similar scheme were propounded for operation principally in the eastern suburbs of Adelaide where the racial mix and circumstances of disadvantage are quite different, and where such a qualification would be inappropriate. [4] In my opinion the majority of the Equal Opportunity Tribunal (the tribunal) erred in finding that there was discrimination against the respondent on the ground of race. [5] During the course of the hearing of the appeal the respondent expressly abandoned reliance on the alleged age discrimination under s 85K of the EOA. It is therefore not now strictly necessary to deal with that argument. The appeal on that ground must therefore also be allowed. However, as all members of the tribunal considered that s 85P of the EOA had no application, it is appropriate that this court should nevertheless give some reasons. Again, I agree with the reasons expressed by Gray J for allowing the appeal on this ground. As with a scheme which discriminates on the ground of race, one which discriminates on the ground of age must also be construed in its context and circumstances when determining whether the scheme is protected by s 85P of the EOA. In my view, the respondent’s argument based on age discrimination was properly abandoned. Page 3 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 [6] It follows that the appeal should be allowed, that the orders made by the tribunal on 11 April 2008 should be set aside, and that in lieu thereof there should be substituted an order that the complainant’s complaint be dismissed. I would hear the parties as to the costs of the appeal. [7] As there has been no breach of the Act by the appellant in its dealings with the respondent, the question of inconsistency of Pt 4 of the EOA with the Racial Discrimination Act 1975 (Cth) (the RDA) does not strictly arise. In any event, the respondent did not seek to argue that the State Act or any action taken under it was invalid as being inconsistent with the RDA. When the question was raised by a member of the court and notices under s 78B of the Judiciary Act 1903 (Cth) were served, no-one sought to intervene to argue that there was an inconsistency. On the issues that were presented for argument before us it is also not necessary to decide the question. [8] However, I note that for my own part I would accept the argument of the solicitor-general as to the reasons why there is no inconsistency. [9] The provisions of the Act relating to prohibition of discrimination on the ground of race are contained in Pt 4 of the EOA. In Viskauskas v Niland 1 it was held that the RDA was intended by the Commonwealth Parliament to cover the field of discrimination on the ground of race, and that s 19 of the Anti-Discrimination Act 1977 (NSW) was inoperative by virtue of s 109 of the Commonwealth Constitution. [10] But for the enactment of s 6A of the RDA, following the decision of the High Court in Viskauskas, the same result would inevitably apply to the provisions of Pt 4 of the EOA. However, by enacting s 6A of the RDA, the Commonwealth Parliament manifested an intention that it should no longer cover the field and that, subject to certain conditions, State Acts relating to discrimination should be permitted to have effect. [11] In order to be able to operate concurrently with the RDA, the EOA must be one that both “furthers the objects of the Convention” (on the Elimination of all Forms of Racial Discrimination) (the Convention) and is “capable of operating concurrently with” the RDA.2 Both those conditions must be fulfilled if the State Act is to be allowed to operate. [12] I consider first whether the EOA furthers the objects of the Convention. Gray J has identified those objects in his reasons. They are very broad objects. The State Act is not required to further the objects in exactly the same way as the RDA. It is sufficient that it complies with the spirit and intendment of the convention and advances it. [13] The long title to the EOA indicates an objective to achieve substantially the same aim as the Convention. As appears below, the exception contained in s 65 of the EOA is broader than the “special measures” exception contained in s 8(1) of the RDA. However, that does not mean that Pt 4 of the EOA does not further the objects of the Convention. Part 4 of the EOA is clearly designed to eliminate a variety of forms of racial discrimination, subject to some limited exceptions. In doing so it “furthers the objects of the convention” by promoting or advancing those objects. In doing so, it does not detract from the operation of the RDA. The EOA therefore meets the criterion of the first limb of s 6A of the RDA. [14] I turn to consider the second limb, namely whether the EOA is “capable of operating concurrently with” the RDA. [15] Gray J has set out the provisions of ss 51 and 61 of the EOA. Section 61 of the EOA prohibits racial discrimination in the provision of goods and services in terms which are similar to but not identical with those contained in s 13 of the RDA. Without going into detail, I agree with Gray J that, despite those minor differences, there is no impediment to the capacity of those provisions of the EOA to operate concurrently with the RDA. [16] However, both Acts provide certain exceptions to the prohibition. As noted by Gray J, the exception contained in s 65 of the EOA is broader than the “special measures” exception contained in s 8(1) of the RDA. It is therefore possible that conduct that would otherwise be unlawful discrimination on the basis of race under both Acts would fall within the exception to s 65 of the EOA but not within the special measures exception of s 8(1) of the RDA. [17] The effect of s 65 of the EOA is to limit the scope of the prohibition on racial discrimination contained in Pt 4. It excuses what would otherwise be an unlawful act for the purposes of the State Act. However, it does not excuse or render lawful an act which is prohibited under the RDA. It follows that an act which may come within the exception described in s 65 might nevertheless be prohibited under the RDA. There is therefore no direct inconsistency between them. [18] As mentioned above, by virtue of s 6A of the RDA, does not now purport to cover the field of racial discrimination. In those circumstances the mere co-existence of the two differing laws does therefore not render them inconsistent. The position was explained succinctly by Dixon J in Ex parte McLean:3 When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and s 109 applies. That this is so is settled, at least when the sanctions they impose are diverse (Hume v Palmer ).4 But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its Page 4 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. [Emphasis added.] [19] As the Commonwealth law does not cover the field, and as there is no direct inconsistency between the RDA and the EOA, Pt 4 of the EOA is capable of operating concurrently with the RDA because it does not interfere with the RDA. The second limb of the test contained in s 6A of the RDA is therefore met. The remaining provisions of s 6A can therefore operate to their full effect, thus enabling the relevant provisions of the EOA to take effect when invoked by the respondent. Gray J. [20] This is an appeal by the Central Northern Adelaide Health Service from a recorded finding of discrimination and a consequential order of the equal opportunity tribunal. [21] The tribunal recorded a finding that the Northern Health Service unlawfully discriminated against Brian Atkinson on the basis of both race and age contrary to the provisions of the Equal Opportunity Act 1984 (SA) (the EOA). The tribunal then ordered that an apology be provided by the Northern Health Service to Mr Atkinson. This appeal is brought against the decision of the tribunal under the provisions of s 98(1)(b) of the Act.5 Factual background [22] Mr Atkinson is 77 years of age. His native language is English. He emigrated to Australia from the United Kingdom in 1960. Currently he is in receipt of a full age pension and holds a health care card. He moved to a housing trust home in Mansfield Park in 2003 from the Tea Tree Gully area. Mr Atkinson has access to other non- medical services that are available at the Parks Community Health Centre and has used the physiotherapy, psychologist and dental services. The Parks Community Health Centre forms part of the Central Northern Adelaide Health Service. [23] In 2004 Mr Atkinson sought access to medical services at the Parks Community Health Centre. A receptionist refused Mr Atkinson access and told him that he could not see a medical practitioner at the Parks Community Health Centre because there were specific criteria for persons wishing to access services there and he did not qualify. The receptionist also advised Mr Atkinson to consider consulting one of the other medical practitioners in the near vicinity. [24] In the latter half of 2005, Mr Atkinson again sought access to medical services at the Parks Community Health Centre. Again he was told that he did not meet the eligibility criteria. He says on this occasion part of the explanation given to him was that there were limited resources and the criteria for persons wishing to access the Parks Community Health Centre was in place to assist disadvantaged groups. [25] On 30 December 2005, Mr Atkinson lodged a complaint with the commissioner for equal opportunity under the provisions of s 93 of the EOA.6 [26] On 26 October 2006, the commissioner referred the complaint of discrimination on the grounds of both age and race, to the tribunal under the provisions of s 95(8)(b) of the EOA. [27] Mr Atkinson was refused access to the medical services provided by the Parks Community Health Centre on the basis that he did not meet the eligibility criteria which provide that a patient must be Aboriginal or Torres Strait Islander or from a non-English speaking background or be under 25 years of age, and possess a health care card, and live in the catchment area with postcodes 5008–13, or if none of those apply, the client must have seen a Parks Community Health Centre doctor within the last 3 years. [28] On 11 April 2008, the tribunal unanimously upheld the complaint of discrimination on the basis of age and by majority, upheld the complaint of discrimination on the basis of race. As earlier observed the tribunal directed that there should be a written apology. No compensation was ordered. The evidence before the tribunal [29] In order to understand the submissions on appeal it is necessary to examine the evidence before the tribunal about the operation of the Parks Community Health Centre. Evidence was placed before the tribunal by affidavit and oral evidence including evidence from Dianne Jones, the director of services and programs with the Northern Health Service. [30] The evidence before the tribunal demonstrates that the Parks Community Health Centre has a plan specifically designed to assist new migrants to Australia, particularly refugees from the Horn of Africa, including those from Ethiopia, Somalia, Burundi and Sierra Leone as well as the existing Indo-Chinese community in the Parks area. [31] The evidence of Ms Jones outlines the development of a scheme in the Parks strategic plan which took into account a range of resources including national and state health priorities and outcomes. As part of this process, Page 5 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 staff members, other organisations in the area and members of the local community, were consulted. As a result of this, “priority population groups” were determined as Aboriginal people; young people; children and families; and people from non-English speaking backgrounds or culturally and linguistically diverse backgrounds especially refugees. These population groups were identified as often having the greatest difficulty in accessing mainstream health services. They were also identified as often having complex and chronic health problems. [32] The scheme of the Parks Community Health Centre was to benefit persons of a number of different races but those races are commonly linked by characteristic of disadvantage. [33] Following the implementation of the Parks strategic plan and the adoption of the eligibility criteria, medical services and limited resources were then “effectively targeted to benefit the priority groups in order to assist in re- dressing the inequality they would otherwise experience”. [34] Ms Jones’ affidavits attest to the fact that the Parks area contains five of the six most disadvantaged suburbs in the Adelaide metropolitan area and also has a relatively high proportion of people from a non-English speaking background and new migrants. [35] Ms Jones’ affidavits also provide some insight into the specific health needs of new arrivals from linguistically diverse backgrounds. Their vulnerabilities are compounded by emotional health issues, cultural dislocation, social isolation and economic disadvantage resulting from difficulty in finding employment. New arrivals, particularly those who are not proficient in the English language, generally lack knowledge of available services, are less likely to have access to family support and need information to adapt their diet to meet their nutritional needs. [36] Additionally new migrants and refugees may have conditions in common which are not seen often in the general population. A study published in 2007 entitled “GP experiences providing health care to refugees in South Australia”, notes that general practitioners in private practice are not sufficiently resourced to provide initial health care effectively to refugees. [37] The Parks Community Health Centre provides a screening for newly arrived refugees which enables the early identification and treatment of specialised diseases referable to the new migrant population. The benefits of comprehensive screening of new arrivals, according to the evidence, have been substantial. Many diseases and conditions identified may have progressed to a much more serious stage. The detection at an early stage may have prevented the spread of such diseases into the community. The screening processes and the other services provided to new arrivals, prevents the state health system from facing a significant potential cost in the longer term. [38] Within the Parks’ strategic plan priority areas to be addressed for people from linguistically diverse backgrounds were identified as physical health, addiction, mental health, education, training and employment, stronger, safer families and the need to establish a sense of belonging to the community. [39] The evidence established that the Parks region is more diverse than the state and the Adelaide metropolitan regions as a whole. Some 1.2% of the population is indigenous and in 2001 there were over 100,000 people from a linguistically diverse background living in the area. It was also discovered that approximately 3% of the Parks region’s adults have poor proficiency in English, compared with 1.8% of the entire state and 2.3% in the Adelaide metropolitan area. [40] In summary the evidence established that the Parks Community Health Centre did establish a particular scheme for the benefit of a number of races. An extensive planning procedure was undertaken by the Northern Health Service in relation to developing a scheme for the effective delivery of health services to the identified priority groups in the Parks area. There was a broad consultation process carried out in the community and with other relevant organisations from a wide range of sources. That extensive process of consultation provided information which strongly indicated that the Parks area required a medical centre to specifically meet the health needs of Aboriginal and Torres Strait Islanders and people from linguistically diverse backgrounds. [41] I turn now to consider the evidence in relation to the eligibility criteria that a person must be under the age of 25 years. [42] Mr Atkinson, in relation to this ground of discrimination submitted that the Parks Community Health Centre had adopted a scheme in order to benefit young people within the 0–25 year age group to meet their specific health needs even though the different range of ages within that group had specific needs applicable to that age group. [43] The evidence before the tribunal demonstrated that during the 1990s children and young people from this area had poor attendance records at the Women’s and Children’s hospital. From this enquiry, together with consultation with community members and various organisations and an extensive study of national and state information regarding health outcomes, the Parks’ strategic plan for 2003–06, identified young people as a priority group in the region. [44] The Parks Community Health Centre has staff co-located from other agencies including, from the Women’s and Children’s hospital, Child and Youth Health and the Parenting network. The Parks Community Health Centre works in partnership with these agencies to provide specialised health services to young people. [45] The Parks children’s house was opened in 2005 and incorporates an early learning and childcare centre. The children’s house employs child and youth nurses and family support workers to provide support to at risk children and families. It also provides a counselling service to young individuals and families, speech pathology for children Page 6 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 under 4 years, peer education, traineeships and educational training and community development programs and activities. [46] The Parks Community Health Centre focuses on the needs of young people including vaccination, paediatric care and issues arising from domestic violence, child abuse and family disruption. These needs have been compounded in the Parks area due to low income and family circumstances. Additionally, young people in that area experience a high level of mental health issues, engaging in risky behaviours including sexual activity and drug and alcohol abuse. [47] The unemployment rate in the Parks area is around 26% which is four times above the state average and the youth unemployment rate is 45%, which is almost double the state average. The “key action areas” identified by the Parks Community Health Centre to address young people’s health needs are drugs and alcohol; education and training; education, training and employment; poverty; mental health and relationships with families and peers; and sex and sexuality. [48] The “key action areas” match the state government’s youth action plan goals which are connected to the state’s strategic plan objectives. The Northern Health Service “social health atlas” indicates that young people under utilise health services and are often unaware of how to access them, in particular young people from socio- economic backgrounds who are more likely to have poorer health status than those who are better off. The fact that the Parks region is one of the most disadvantaged areas in the state indicates that young people living in this area are more likely to have poorer health outcomes than those living in better areas. [49] It was against this background that the Northern Health Service determined to include in its eligibility criteria, the provision that persons accessing the medical health services must be under the age of 25 years. Relevant provisions of the EOA Race discrimination [50] Section 51 of the EOA provides: For the purposes of this Act, a person discriminates on the ground of race— (a) if he or she treats another person unfavourably by reason of the other’s race; or (b) if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons of a different race complies, or is able to comply, with the requirement than of those of the other’s race; and (ii) the requirement is not reasonable in the circumstances of the case; or (c) if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s race, or on the basis of a presumed characteristic that is generally imputed to persons of that race. [51] Section 61 of the Act prohibits discrimination on the ground of race in the provision of goods and services: It is unlawful for a person who offers or provides— (a) goods; or (b) services to which this Act applies, (whether for payment or not) to discriminate against another on the ground of race— (c) by refusing or failing to supply the goods or perform the services; or (d) in the terms or conditions on which or the manner in which the goods are supplied or the services are performed. [52] An exception to the prohibition of racial discrimination is provided in s 65 of the EOA which provides: This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race. [53] The Northern Health Service submitted that the Parks medical service eligibility criteria fell within the provisions of s 65 of the EOA and was an integral part of a scheme or undertaking carried out for the benefit of persons of a particular race. Age discrimination Page 7 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 [54] Section 85A of the EOA provides as follows: For the purposes of this Act, a person discriminates on the ground of age— (a) if he or she treats another person unfavourably because of the other’s age; or (b) if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons of a different age or age group complies, or is able to comply, with the requirement than of those of the other’s age or age group; and (ii) the requirement is not reasonable in the circumstances of the case; or (c) if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s age or age group, or on the basis of a presumed characteristic that is generally imputed to persons of that age or age group. [55] Section 85K prohibits discrimination on the ground of age in the provision of goods or services: (1) It is unlawful for a person who offers or provides— (a) goods; or (b) services to which this Act applies, (whether for payment or not) to discriminate against another on the ground of age— (c) by refusing or failing to supply the goods or to perform the services; or (d) in the terms or conditions on which or the manner of which the goods are supplied or the services are performed. (2) It is unlawful for a person who offers or provides— (a) goods; or (b) services to which this Act applies, (whether for payment or not) to refuse or fail to supply the goods or to perform the services to another on the ground that the other person is accompanied by a child. (3) This section does not apply to discrimination on the ground of age in relation to— (a) the charging of a fee or fare; or (b) the terms or conditions on which — (i) a ticket is issued; or (ii) admission is allowed to any place, where those terms or conditions are imposed on a genuine and reasonable basis. [56] An exception to the prohibition of age discrimination is provided in s 85P: This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular age or age group in order to meet a need that arises out of, or that is related to, the age or ages of those persons. [57] The Northern Health Service submitted that the scheme operated by the Parks Community Health Centre which identified the 0–25 year age group as a priority group, fell within the exemption under s 85P. [58] Unlike s 65 of the EOA, s 85P sets a higher threshold in that the scheme or undertaking for the benefit of persons of any particular age group, must also be carried out in order to meet a need that arises out of or is related to that age or age group. Possible inconsistency with the RDA and the effect this has on the interpretation of the EOA Page 8 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 [59] At the hearing of this appeal the question was raised of a possible inconsistency between the provisions of the RDA and Pt 4 of the EOA. It is convenient to first address this question before discussing the merits of the appeal. [60] Generally, a state law will be held to be inconsistent with a Commonwealth law for the purposes of s 1097 on one of three bases — that the Commonwealth law evinces an intention to “cover the field” on a particular topic to the exclusion of any state legislation, or that there is some direct inconsistency between the relevant provisions in the sense that it is impossible to obey both laws, or that a state law prohibits or permits something which is expressly or impliedly permitted or prohibited by a federal law. [61] The Northern Health Service served notices on the Commonwealth, state and territory attorneys-general pursuant to s 78B of the Judiciary Act 1903 (Cth). None sought to intervene. [62] The suggested inconsistency that arises for consideration is between the terms of s 65 of the EOA and s 8(1) of the RDA. Both provisions permit conduct that is racially discriminatory. However, the circumstances in which this may occur are severely curtailed under s 8(1), both as to scope and duration, whereas it would appear that there is no such curtailment in s 65. To put the matter another way, conduct that would be in breach of the terms of the RDA may be permitted under the terms of s 65. [63] The first question in a consideration of any possible inconsistency is one of statutory construction. So far as different constructions appear to be available, a construction that would allow a state statute to operate consistently with a federal statute should be preferred. In this regard, it should be noted that s 13 of the Acts Interpretation Act 1915 (SA) relevantly provides: A statutory … instrument … will be read and construed … so that, where a provision of the instrument, or the application of a provision of the instrument to any person or circumstances, is in excess of … power, the remainder of the instrument, or the application of the provision to other persons and circumstances, is not affected. [64] The primary submission of the solicitor-general, who appeared for the Northern Health Service, was that, read literally, there was no inconsistency. An alternative submission was advanced that if there was an apparent inconsistency on a literal reading, the state legislation should be read down to avoid any such inconsistency. The submissions of the solicitor-general are addressed later in these reasons. However, as indicated above, the first question is one of statutory construction. The construction of the RDA [65] The RDA deals with discrimination in the provision of goods and services in s 13 of Pt II: It is unlawful for a person who supplies goods or services to the public or to any section of the public: (a) to refuse or fail on demand to supply those goods or services to another person; or (b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or subject to conditions than those upon or subject to which he or she would otherwise supply those goods or services; by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person. Section 8(1) provides for an exception to the prohibition of racial discrimination:8 (1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3). [66] Article 1.4 of the Convention on the Elimination of all Forms of Racial Discrimination (the Convention) is in the following terms: Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. [67] The RDA itself does not provide a means of redress for a person who has been discriminated against contrary to either Pts II or IIA. The mechanism for the making of complaints of discrimination is contained in the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Section 3 of that Act defines “unlawful discrimination” to mean, inter alia: … any acts, omissions or practices that are unlawful under: Page 9 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 … (b) Part II or Part IIA of the RDA 1975 … [68] A person may make a complaint of unlawful discrimination to the commission pursuant to s 46P of the Human Rights and Equal Opportunity Commission Act. If such a complaint is made the commission must refer it to the president of the commission under s 46PD. Under s 46PH(1) the president may terminate a complaint on various grounds, including the following: … the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Magistrates Court; the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation … [69] Section 46PO(1) provides that, if a complaint has been terminated by the president, an affected person may make an application alleging unlawful discrimination to the Federal Court or the Federal Magistrates Court. Section 46PO(4) sets out the powers of the court in dealing with an application under s 46PO(1), and relevantly provides: If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that unlawful discrimination has been committed and directing the respondent not to repeat or continue such unlawful discrimination; … (b) an order requiring the respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent … [70] The RDA addresses the question of the interaction with state laws in s 6A: (1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act. (2) Where: (a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and (b) a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act; the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this subsection, terminated. (3) Where: (a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act; the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission. [71] Section 6A of the RDA was enacted in response to the decision of the High Court of Australia in Viskauskas v Niland .9 The court held that the RDA had been intended to “cover the field” and that s 19 of the Anti-Discrimination Act 1977 (NSW) was consequently inoperative pursuant to s 109 of the Constitution. Page 10 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 [72] Following this decision, the Racial Discrimination Amendment Act 1983 (Cth) was enacted inserting s 6A into the RDA. In the second reading speech, the Minister for Trade, stated:10 The purpose of this Bill is to amend the RDA 1975 to remedy a situation which has arisen as a result of a High Court decision which was handed down last week … The Court took the view that the Commonwealth’s RDA was intended to cover the whole area of racial discrimination prohibition in Australia, and therefore it was not possible for the State legislation to operate in the same field … The Government takes the view that constructive developments have taken place in some States in the field of anti- discrimination law and that Federal measures should not impinge on those developments … This Bill makes it clear that State and Territory legislation which furthers the objects of the Racial Discrimination Convention can stand alongside the Commonwealth legislation. The States of course will need to ensure that their legislation does further those objects and is in a form in which it is able to operate concurrently with the Commonwealth Act … Section 6A indicates the Commonwealth legislature’s intention that the RDA be cumulative upon state law, so long as the state law meets the threshold test in s 6A(1). The RDA is to standing alongside the relevant state law in its creation of substantive rights and obligations. [73] Section 6A(2)(b) however operates so that a complainant is put to an election as to the jurisdiction in which to seek a remedy. Having elected to bring a complaint under the relevant state law, the remedies otherwise available under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for a breach of the RDA are no longer available. [74] If a state law is not properly described as both “capable of operating concurrently” with the RDA, and a law which “furthers the objects of the Convention”, it will not meet the threshold test and will be inoperative. That will be so because, except where the threshold test is met, the RDA is intended to cover the field of the elimination of racial discrimination.11 As Gibbs CJ observed in University of Wollongong v Metwally :12 … the Commonwealth Act, as amended, shows that the intention not to exclude or limit the operation of a law of a State exists only in relation to a State law “that furthers the objects of the Convention and is capable of operating concurrently with this Act. Similar savings provisions in other Commonwealth Anti-Discrimination Acts [75] It is useful to draw attention to other statutory provisions within Australia. The Sex Discrimination Act 1984 (Cth)13 contains very similar savings provisions in ss 10 and 11: 10 Operation of State and Territory laws … (3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act. (4) Where— (a) a law of a State or Territory deals with a matter dealt with by this Act; and (b) a person has made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under this Act, the person is not entitled to make a complaint or institute a proceeding under this Act in respect of that act or omission. (5) Where— (a) a law of a State or Territory deals with a matter dealt with by this Act; and (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act; the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission. Page 11 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 11 Operation of State and Territory laws that further objects of Convention … (3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act. (4) Where— (a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and (b) a person has made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under this Act, the person is not entitled to make a complaint or institute a proceeding under this Act in respect of that act or omission. (5) Where— (a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act; the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission. [76] The Disability Discrimination Act 1992 (Cth)14 also contains a savings provision in similar terms in s 13: (3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act. (4) If: (a) a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act; and (b) a person has made a complaint or instituted a proceeding under that law in respect of an act or omission in respect of which the person would, apart from this subsection, have been entitled to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under Part 2 of this Act; the person is not entitled to make a complaint or institute a proceeding under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under Part 2 of this Act. (5) If: (a) a law of a State or Territory deals with a matter dealt with by this Act; and (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act; the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission. [77] The HREOC Act has a similar provision in s 4, which provides: (1) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act. (2) If: Page 12 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 (a) a law of a State or Territory deals with a matter dealt with by this Act; and (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act; the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission. The construction of the EOA [78] The following principles of statutory construction provide assistance with respect to the interpretation of the EOA, and in particular s 65. These principles are additional to the guidance provided by s 13 of the Acts Interpretation Act. [79] A purposive construction is the usual or general approach to be taken to issues of statutory construction.15 In Palgo Holdings Pty Ltd v Gowans ,16 Kirby J summarised the principle as follows: [35] Purposive interpretation: The first principle holds that a purposive and not a literal approach17 is the method of statutory construction that now prevails:18 “A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.” [36] Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.19 As Lord Diplock explained, in an extra-judicial comment,20 “if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed” .21 [80] A purposive approach to statutory construction is also prescribed by s 22(1) of the Acts Interpretation Act: [W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object. [81] Beneficial and remedial legislation must be given a liberal construction, which constitutes “the widest interpretation which its language will permit”.22 A remedial or beneficial statutory provision is one that gives some benefit to a person and thereby remedies some injustice.23 In IW v City of Perth ,24 Brennan CJ and McHugh J outlined the appropriate approach to statutory construction in the following terms: [It is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. The EOA is a remedial or beneficial statute. [82] All words in a statute must prima facie be given some meaning and effect. This principle was discussed by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority :25 [71] … [A] court construing a statutory provision must strive to give meaning to every word of the provision.26 In Baume27 Griffith CJ cited R v Berchet 28 to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”. [83] The importance of context as an aid to statutory construction was noted by Kirby J in Palgo:29 [37] Contextual interpretation: The second principle holds that the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.30 In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.31 Further, the context of a statute is not confined to its own words and their deployment within it, but also includes the legislative history, the statutory context furnished by legislation in pari materia, and the existing state of the law in which the statute was enacted, which embraces the then understanding of equity and the common law.32 Page 13 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 [84] Extrinsic materials such as second reading speeches, explanatory memoranda or reports of law reform commissions may throw light upon the purpose of a statute and even in some cases the meaning to be given to its words.33 In CIC Insurance Ltd v Bankstown Football Club Ltd ,34 Brennan CJ, Dawson, Toohey and Gummow JJ articulated the principle as follows: It is well settled that at common law … the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.35 Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.36 [85] It is desirable that comparable or in pari materia legislation in other Australian jurisdictions should receive a consistent interpretation. [86] I refer to the observation of Southwell J in Melville Homes Pty Ltd v Prime Ceramics Services Pty Ltd ,37 in the context of a discussion of the proper approach to the interpretation of the Commercial Arbitration Act 1984 (Vic), which had a legislative counterpart in all other state jurisdictions: There is common commercial arbitration legislation throughout the Commonwealth. In R v Parsons [1983] 2 VR 499 ; 53 ALR 568 , the Full Court held that State courts should give a consistent meaning to a Commonwealth statute. In my opinion, by analogy the courts should attempt to give consistent interpretations to common State legislation. It would be undesirable if, in a dispute in Albury, s 26 of the Commercial Arbitration Act was given a meaning different to that which might be given by this court in relation to a dispute in Wodonga. This principle has particular force if the legislation under consideration and that with which it is compared had their origins in the same source.38 The in pari materia principle extends to statutes in different jurisdictions.39 Equivalent exception provisions in interstate legislation [87] Section 16 of the Anti-Discrimination Act 1998 (Tas)40 prohibits discrimination on the basis of various attributes, including race. Sections 25 and 26 provide general exceptions for disadvantaged groups and special needs, and for equal opportunities: 25 Disadvantaged groups and special needs. A person may discriminate against another person in any area if it is for the purpose of carrying out a scheme for the benefit of a group which is disadvantaged or has a special need because of a prescribed attribute. 26 Equal opportunities A person may discriminate against another person in any program, plan or arrangement designed to promote equal opportunity for a group of people who are disadvantaged or have a special need because of a prescribed attribute. [88] Section 19 of the Anti-Discrimination Act 1977 (NSW)41 prohibits discrimination on the ground of race in the provision of goods and services. Section 21 contains the relevant general exception, which provides that: Nothing in this Part applies to or in respect of anything done in affording persons of a particular race access to facilities, services or opportunities to meet their special needs or to promote equal or improved access for them to facilities, services and opportunities. [89] The Equal Opportunity Act 1995 (Vic)42 prohibits discrimination on the basis of various attributes, including race.43 Section 42 prohibits discrimination in the provision of goods and services. Section 82 provides a general exception as follows: (1) Nothing in Part 3 applies to 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. (2) Without limiting the generality of subsection (1)— (a) a person may grant a woman any right, privilege or benefit in relation to pregnancy or childbirth; (b) a person may provide, or restrict the offering of, holiday tours to people of a particular age or age group … Page 14 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 [90] Section 7 of the Anti-Discrimination Act 1991 (Qld)44 prohibits discrimination on the basis of various attributes, including race. Sections 104 and 105 provide general exceptions for welfare and equal opportunity measures, and provide as follows: 104 Welfare measures A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act. Example 1— It is not unlawful for a bus operator to give travel concessions to pensioners or to give priority in seating to people who are pregnant or frail. Example 2— It is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail, older people. Example 3— It is not unlawful to establish a high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks. 105 Equal opportunity measures (1) A person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act. (2) Subsection (1) applies only until the purpose of equal opportunity has been achieved. [91] Section 46 of the Equal Opportunity Act 1984 (WA) (the EOA)45 prohibits discrimination on the grounds of race in the provision of goods and services. A general exception is provided in s 51 for measures intended to achieve equality: Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is— (a) to ensure that persons of a particular race have equal opportunities with other persons in circumstances in relation to which provision is made by this Act; or (b) to afford persons of a particular race access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare, or any ancillary benefits. [92] The Anti-Discrimination Act (NT)46 prohibits discrimination on a number of bases, including race, in s 19. A general exception for “special measures” in s 57 provides as follows: (1) A person may discriminate against a person in a program, plan or arrangement designed to promote equality of opportunity for a group of people who are disadvantaged or have a special need because of an attribute. (2) Subsection (1) applies only until equality of opportunity has been achieved. [93] Section 20 of the Discrimination Act (ACT)47 prohibits discrimination48 in the provision of goods and services. Section 27 provides a general exception for measures intended to achieve equality: (1) Part 3 does not make it unlawful to do an act if a purpose of the act is— (a) to ensure that members of a relevant class of people have equal opportunities with other people; or (b) to give members of a relevant class of people access to facilities, services or opportunities to meet the special needs they have as members of the relevant class. Page 15 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 (2) However, subsection (1) does not make it lawful to do an act for a purpose mentioned in that subsection if the act discriminates against a member of the relevant class in a way that is not reasonable for the achievement of that purpose. Example for s (1)(a) An employer runs a management skills development course for female employees only. Part 3 does not make this unlawful if a purpose is to ensure that women have equal opportunities (in this case, for career development) with men. Women are “members of a relevant class of people” (relevant class of people is defined in the dict) because they are a class of people whose members are identified by reference to an attribute mentioned in s 7, in this case, sex in s 7(1)(a). Example for s (1)(b) A health clinic provides speech therapy for autistic children only. Part 3 does not make this unlawful if a purpose is to give autistic children access to a service that meets their special needs as autistic children. Autistic children are “members of a relevant class of people” because they are a class of people whose members are identified by reference to 2 attributes mentioned in s 7, in this case, disability in s 7(1)(j) and age in s 7(1)(l) (the Legislation Act, s 145(b) provides that words in the singular include the plural ie “attribute” in the def of relevant class of people can mean “attributes”). [94] I now turn to a consideration of the EOA with these principles in mind. Is the EOA inconsistent with the RDA? [95] Part 4 of the EOA deals with the prohibition of discrimination on the ground of race. Its operation is dealt with earlier in these reasons. Section 61 of the EOA prohibits racial discrimination in the provision of goods and services in terms that, although not identical, are substantially the same as those in s 13 of the RDA. However, the respective Acts define racial discrimination in different terms. Section 51 of the EOA defines discrimination in terms of “unfavourable” treatment, whereas s 9(1) of the RDA provides that: (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. [96] The history of the legislation demonstrates that it was the intention of the South Australian Parliament, in enacting Pt 4 of the EOA, to satisfy the threshold test in s 6A of the RDA. Viskauskas was decided by the High Court on 18 May 1983. The Racial Discrimination Amendment Bill which inserted s 6A was introduced into Federal Parliament on 25 May 1983. Section 6A came into force on 19 June 1983. The South Australian Anti-Discrimination Bill, as the bill which became the EOA was then known, was introduced into South Australian Parliament on 23 August 1984. In the second reading speech the attorney-general, said: Many of the problems addressed by this Bill are also addressed by the Commonwealth in its Sex Discrimination Act and RDA. The Commonwealth has, however, acknowledged that the States may wish to regulate the field of anti discrimination in their own ways, and the Commonwealth legislation is drafted in such a manner as to enable the passage of non- conflicting State laws in this field.49 [97] Later, during debate on the Bill on 30 October 1984, the attorney-general noted: We have already attempted to bring the State Bill into line with the Commonwealth legislation where there was any question of inconsistency, because obviously we did not want a situation where a State Bill could be struck down as being inconsistent with Commonwealth legislation. Therefore, when the Bill was presented to Parliament we had already undertaken an exercise on inconsistency and tried to remove any potential inconsistencies between the State and Commonwealth legislation.50 [98] Part 4 of the EOA is designed to stand alongside the provisions of the RDA. It provides an alternative source of action, forum and procedure. In some respects the EOA may proscribe discrimination more broadly and more effectively than the RDA. The EOA provides a local forum and advantageous provisions for complainants with respect to the cost of proceedings.51 [99] Racial discrimination under the RDA, involving a “distinction, exclusion, restriction or preference based on race” would also appear to satisfy the definition of “unfavourable” treatment in s 51 of the EOA. The difference in the wording of the definitions do not impede the capacity of the State Act to operate concurrently with the RDA. Page 16 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 [100] The EOA would not be able to operate concurrently with the RDA if the EOA purported to permit action which was prohibited by the RDA, or prohibit action which was specifically permitted by the RDA. If the EOA permits or prohibits action that the RDA is silent on, then an examination must be undertaken as to whether the RDA intended to cover a particular “field” of action, and whether the action permitted or prohibited by the EOA falls within that field. [101] Both the RDA, in conjunction with the Human Rights and Equal Opportunity Commission Act 1986 Act, and the EOA prohibit racial discrimination, and provide certain exceptions to that prohibition, as well as mechanisms for persons to make complaints of unlawful discrimination, and remedies to address breaches. However, the scope of the exception contained in s 65 of the EOA would appear to be materially broader and more liberal than the “special measures” exception s 8(1) of the RDA.52 As earlier observed s 65 of the EOA provides: This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race. Conduct, that would otherwise be unlawful discrimination on the basis of race under both the RDA and the EOA, would fall within the exception in s 65 of the EOA but not the special measures exception in s 8(1) of the RDA, because it would not be for the: advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms …53 [102] Interpreting Commonwealth legislation which incorporates provisions of an international convention produces novel problems of statutory interpretation.54 Brennan J in Gerhardy55 noted that the objects and purposes of the Convention “appear in the preambles to the Convention” .56 [103] The “objects of the convention” include the promotion of human rights and fundamental freedoms, the elimination of all forms of racial discrimination, the provision of effective protection from and remedies for acts of racial discrimination that violate human rights and fundamental freedoms and the securing of adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms, through “special measures”. [104] Part 4 of the EOA is designed to achieve substantially the same aim as the Convention — that is the elimination of racial discrimination. The purpose of the EOA is made clear by the long title of the Act which reads: An Act to promote equality of opportunity between citizens of this State; to prevent certain kinds of discrimination based on sex, sexuality, marital status, pregnancy, race, physical or intellectual impairment or age; to facilitate the participation of citizens in the economic and social life of the community … [105] The text of s 6A(1) of the RDA requires that the applicable state legislation “furthers the objects of the convention” and not that it legislatively implement the convention. The Minister for Trade, in the passage earlier reproduced above, spoke of the intention that “federal measures” not impinge on “constructive” state developments. The text, history of the provision, and secondary material show that something less than precise alignment between the legislation and the convention would suffice to allow the concurrent operation of the State Acts. Interpreting the relevant provisions of the EOA in such a way as to avoid the inconsistency [106] There is a tension between s 8 of the RDA and s 65 of the Equal Opportunities Act. In my view a literal reading of s 65 would lead to an inconsistency with the RDA such that s 109 of the Australian Constitution would have application, and as a consequence, s 65 would be inoperative. Later in these reasons the solicitor-general’s submission that a literal interpretation does not lead to inconsistency is addressed. It is convenient to first consider the question of statutory construction. [107] As earlier observed, a construction of Pt 4 of the EOA that avoids any inconsistency with the RDA is to be preferred. Additionally, the legislation is beneficial and remedial, and it is appropriate to adopt a purposive approach to its construction. Adopting this approach to the statutory construction of Pt 4, and in particular s 65, of the EOA allows the following conclusions. [108] Consistent with s 22 of the Acts Interpretation Act 1915, s 65 of the EOA is to be given a construction that accords with the purposes of the EOA, the promotion of equal opportunity, the prevention of discrimination based on race, and the facilitation of participation of citizens in the economic and social life of the community.57 [109] The EOA seeks to achieve equality of treatment. The legislation recognises, however, that not all persons are equal, and so permits positive discrimination in order to achieve “effective, genuine equality”.58 As Brennan J noted in Gerhardy:59 A means by which the injustice or unreasonableness of formal equality can be diminished or avoided is the taking of special measures. A special measure is, ex hypothesis, discriminatory in character; it denies formal equality before the law in order to achieve effective and genuine equality. 60 Page 17 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 [110] Section 65 requires that the relevant act be undertaken for the purpose of carrying out a scheme or undertaking. The concept of a scheme or undertaking contemplates a course of action designed to achieve a particular end or purpose for the benefit of persons of a particular race. [111] The scheme or undertaking must be one that has the sole purpose of remedying an inequality that the EOA is designed to address. In that way such a scheme or undertaking achieves the purposes of the EOA and furthers the objects of the convention. To construe s 65 in this way does not distort or strain the words of the section. [112] Section 65 is to be interpreted in its context within Pt 4 of the EOA, in a context of broadly comparable Australian legislation, having regard to the second reading speech introducing Pt 4, and finally having regard to the relevant rules of statutory interpretation. The attorney-general was explicit in informing Parliament that it was intended that the EOA would work together with the RDA. A consistent approach to the treatment of racial discrimination should be adopted. It is to be expected that action taken by a state health service, to be effective, may advantage some racial groups. As earlier discussed, there is good reason this would be so in the short term. Appropriate health treatment targeting recent immigrants is an important matter when addressing public health. However, such projects or plans may be expected to have a termination date. When the course of treatment has concluded, one might expect recovery and the absence of a need for the targeting. In my view there is no difficulty in recognising these broad purposes, and giving effect to them in the interpretation of the legislation. [113] Therefore, the “scheme or undertaking for the benefit of persons of a particular race” contemplated by s 65 will be one which addresses the objects of the EOA. [114] This construction allows Pt 4 of the EOA to be properly described as a law which “furthers the objects of the convention”, and therefore falls within the savings provision in s 6A(1) of the RDA. As with the special measures provision this must be the sole purpose and shall not be continued after the objects of the scheme or undertaking have been achieved. [115] Earlier in these reasons, I pointed out that the solicitor-general had contended that there was no inconsistency between the literal interpretation of s 65 and the RDA. In my view this submission should be rejected, and I now provide my reasons for this conclusion. [116] The solicitor-general contended that s 65 merely affected the scope of the prohibition on racial discrimination in Pt 4 of the EOA. It was said that it does not purport to positively authorise an act which falls within its terms and that s 65 merely excuses what would otherwise be an unlawful act for the purposes of the EOA. It was contended that s 65 does not excuse, or render lawful, an act which is prohibited under the RDA and that it followed that an Act which falls within the s 65 exception, although it would not be prohibited by Pt 4 of the EOA, might none the less be prohibited under the RDA. Finally it was claimed that provisions could coexist and that there is no direct inconsistency between them. [117] The solicitor-general accepted, however, that on its face s 65 of the EOA would permit, for the purposes of the Act, conduct that would fall outside the special measures exception in Art 1.4 of the Convention. It was submitted that Pt 4 of the EOA is none the less, a law which “furthers the objects of the convention”. [118] In my view the submission that there is no inconsistency on a literal reading should be rejected. The purpose of the Convention and of the RDA is to ban and eliminate racial discrimination. However, it is recognised that special circumstances of racial disadvantage may require discrimination to overcome those disadvantages. Such discrimination may be permitted but will be subject to strict limitations as to scope and time. Section 65 directly confronts this objective. It allows for discrimination on the basis of race in less constrained circumstances. There is no reference to scope or time in s 65. On its face, s 65 could permit and authorise racial discrimination in circumstances that would directly conflict with the Convention and the RDA. The decision of the Equal Opportunity Tribunal Race [119] In relation to the complaint of discrimination on the ground of race, Members Shetliffe and Jasinski held that the imposition of the requirement that patients be “Aboriginal or Torres Strait Islander” or, “from a non-English speaking background” by the Northern Health Service amounted to “direct discrimination” pursuant to s 51(a) and (c) of the EOA.61 The Northern Health Service accepted that it was correct to so categorise this requirement. The characteristic of being from a “non-English speaking background” or not is one which “appertains generally to persons of the other’s race, or … that is generally imputed to persons of that race”.62 [120] Members Shetliffe and Jasinski then held that in so far as the criterion related to “Aboriginal or Torres Strait Islanders” it was “done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race” and fell within the exception in s 65.63 Members Shetliffe and Jasinski held that the requirement that patients be “from a non-English speaking background” did not fall within the s 65 exception, because it did not relate to a “particular race” or races:64 Page 18 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 Counsel for the [Northern Health Service] drew our attention to definitions of the word “particular” and argued that it can be interpreted to mean a “number of” rather than just a single item. If this were so, the word “particular” would be otiose. We are of the view that the use of the word within the section of the Act suggests that Parliament intended a scheme to apply to an identifiable, specific race or races. The word “particular” has a job to do. To be able to identify whether a scheme is discriminatory or whether it comes within the exemption, there is a requirement for a precise race or races to be identified. We find that an exemption under s 65 does not apply to the scheme relating to people from a “non-English speaking background”. It may identify a feature or characteristic of race but does not identify a particular race or races. “Non-English speaking” is a characteristic of a diverse set, even mixture of races from different nationalities, countries of origin, colour or ancestry. Such a broad range traverses persons with no identifiable race or races, therefore, does not come within an exemption under s 65. [121] Rice J concluded that the relevant criterion amounted to “indirect discrimination” pursuant to s 51(b)(i) ,65 which contains the additional test of whether the requirement is “not reasonable in the circumstances of the case”.66 Rice J considered that the criterion was “reasonable in the circumstances of the case”, and that it therefore was not in breach of EOA.67 Rice J also considered that, if he was wrong on that point, the criterion would none the less fall within the s 65 exception for “an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race”.68 Section 65 exception [122] The tribunal accepted that there was a “scheme” for the purposes of s 65.69 It was correct to do so. [123] Rice J and Members Shetliffe and Jasinski accepted that “a scheme or undertaking for the benefit of persons of a particular race” did not mean that a scheme must be limited to a single race. Members Shetliffe and Jasinski held that: There is no reason to limit a scheme to a single or discrete purpose. A scheme may undertake or focus on a number of purposes all at the one time especially, as here, where the intent was to provide an integrated health service for those identified as most in need, rather than being provided by independent organisational arrangements. Here the scheme is much broader than the provision of medical services, although that is a very important part of it. A scheme remains a scheme even though resource constraints or shifting demographics or social disadvantage may lead to a modification of eligibility criteria from time to time. As Ms Jones emphasised in her evidence before the Tribunal, the tightening of criteria is resource driven to enable Parks to put its available resources “into the needs of the populations with the greatest need and the least access to services”: TP46–7. The law in this area must be applied in a practical manner. Modification of a scheme may be necessary because resources tighten or needs change or new needs arise. Such matters do not call for a new scheme provided there is no fundamental shift in direction or purpose.70 [124] The tribunal was correct to conclude that a scheme that benefited a number of races was a scheme for the purpose “of persons of a particular race” within the terms of s 65. The words “particular race” should be construed as including the plural number — that is particular races.71 The purpose of the provision is better served by such a construction. Several minority races may have similar needs that can properly be addressed by a single scheme. The phrase “particular race” in s 65 conveniently encapsulates the concept of benefiting one race, or several races, over others. This construction is supported by authority. In Gerhardy72 the High Court held that “persons of a particular race” in s 10(1) of the RDA should not be read narrowly to refer only to discrimination against a single race.73 [125] Although Rice J held that the scheme came within s 65 of the EOA because it benefited persons from a “non- English speaking background“, Members Shetliffe and Jasinski held that to qualify a scheme or undertaking must “apply to an identifiable, specific race or races”. They based their interpretation of the section on the inclusion of the word “particular”, and held that if their interpretation were not adopted, that word would be otiose.74 [126] The interpretation advanced by Members Shetliffe and Jasinski should be rejected. The words are not otiose because “particular” in this context means something other than specified. The Macquarie Dictionary, C Yallop (ed), 4th ed, Macquarie Library, Sydney, 2005, defines “particular” relevantly as follows: relating to some one person, thing, group, class, occasion, etc, rather than to others or all; special, not general: one’s particular interests. being a definite one, individual, or single, or considered separately: each particular item. distinguished or different from others or from the ordinary; noteworthy; marked; unusual …75 Page 19 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 In this context the term “particular” has been used to indicate a scheme which was for the benefit of some races but not others.76 [127] Section 65 requires the identification of an otherwise unlawful act and a scheme or undertaking for the benefit of persons of a particular race. The refusal of health services to Mr Atkinson, a persons of English speaking background, was undertaken for the purpose of carrying out the scheme of benefiting persons of the particular races being those races identified in the evidence. [128] The Parks Community Health Centre targeted and designed health services to assist refugees who had recently settled in Australia and the existing Indo-Chinese communities of the Western suburbs.77 The requirement that new patients be of a non-English speaking background reflected the services actually provided by Parks. The requirement was appropriate and adapted to the implementation of the scheme to benefit those racial groups even though, on occasion, it would allow members of some other non-English speaking races to access Parks’ services. The scheme applied to the benefit of persons of a number of races, but was limited by a characteristic of disadvantage that those races generally shared. [129] As earlier observed, the evidence established the particular races that the health services were designed to benefit. A publication of the appellant’s defined “non-English speaking background countries” as all countries except for Canada, Hong Kong, Ireland, New Zealand, South Africa, the United Kingdom and the United States of America.78 The Parks Community Health Centre patients who came within that category included Vietnamese and Cambodian people living in the Western suburbs and refugees from Ethiopia, Burundi and Sierra Leone.79 [130] There is nothing in the words of s 65 which requires the scheme or undertaking to define itself by specific reference to the inclusion or exclusion of specified races, rather than by a characteristic shared by particular races. A scheme or undertaking that does, as a matter of fact, benefit persons of a particular race or races will come within the terms of s 65 even where there is no writing that establishes or documents the scope of the scheme or undertaking. It is difficult therefore to see how a requirement that a particular race or races be individually specified can be read into that section. [131] Further, such a limitation in the exception in s 65 does not achieve any relevant legislative purpose.80 The very same reasons that require a “particular race” to be construed to include the plural also militate against any implied requirement that the races be in some way separately identified. [132] A restrictive reading of s 65 is also inconsistent with the broad definition given to “race” in s 5, and to discrimination on the ground of race in s 51. Discrimination on the ground of race is broad enough to encompass discrimination on the basis on nationality, country of origin, colour or ancestry, as well as any other characteristic which appertains generally to, or is generally imputed to, persons of a particular “race”. [133] In the event, the scheme or arrangement which is the subject of Mr Atkinson’s complaint — that is the provision of health services to persons of “non-English speaking background”, particularly recent arrival refugees — falls within the protection of s 65 of the EOA. Age [134] In relation to the complaint of discrimination on the ground of age, Members Shetliffe and Jasinski agreed with the reasons of Rice J who held that there was direct discrimination on the ground of age. Rice J further held that the requirement imposed by the Northern Health Service did not fall with the exception in s 85P because the “under 25 years” age group is “simply too broad for any s 85P scheme”.81 [135] The Northern Health Service submitted that the tribunal erred in holding that the requirement imposed that patients be “under 25 years old” was too broad to constitute a scheme or undertaking for the benefit of persons of a particular age or age group in order to meet a need that arises out of, or is related to, the age or ages of those persons. [136] The evidence presented by the Northern Health Service demonstrated that persons within the relevant age groups had needs that it was reasonable to meet.82 The evidence identified two sub-groups within the “under 25 years” criterion. They were children under about 12 in one group and adolescents and young adults in the other. The tribunal accepted the evidence. [137] The tribunal’s further finding that a scheme to address the needs of the “under 25 years” age group was not a scheme under s 85P because it traverses persons of wholly different needs is inconsistent with the tribunal’s finding that: There is no reason to limit a scheme to a single or discrete purpose. A scheme may undertake or focus on a number of purposes all at the one time especially, as here, where the intent was to provide an integrated health service for those identified as most in need, rather than being provided by independent organisational arrangements. The structure of s 85P and the structure of the EOA do not suggest any basis for implying that a scheme must be directed at persons within a narrow age group or needs that are similar. It does not provide any criteria against which the breadth of a scheme can be tested for validity. Page 20 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 [138] The proper construction and application of s 85P is assisted by recognising that unlike s 65 of the EOA, it is not sufficient that the scheme provides a benefit.83 The requirement that the benefit meet an age related need provides the only other limitation on the scope of a scheme or undertaking under s 85P of EOA. [139] A scheme or undertaking established to meet age related needs will come within the terms of s 85P. The imposition of an age requirement for the provision of services that is not related to the services that the provider does, or intends to, supply will not so qualify. [140] The evidence established that the Parks Community Health Centre directed its practice toward the medical needs of young people in the area of drugs, education, employment, poverty, mental health and family and sexual relationships. [141] The discrimination on the basis of age was permitted by the terms of s 85P of the EOA. Conclusion [142] The appeal should be allowed. The orders of the tribunal should be set aside. Mr Atkinson’s application should be dismissed. Kelly J. [143] I agree with the orders proposed by Gray J and with his reasons generally. [144] In my view s 65 of the Equal Opportunity Act 1984 (SA) must be read in the light of the stated objects and purpose of the Act which is to promote equality of opportunity between the citizens of this state, to prevent discrimination based on a number of grounds including relevantly race and to facilitate the participation of citizens in the economic and social life of the community. When viewed in that light I do not consider there is any inconsistency between s 65 and the RDA. 1 (1983) 153 CLR 280 ; 47 ALR 32 (Viskauskas). 2 Section 6A(1) of the RDA. 3 (1930) 43 CLR 472 at 483 ; [1930] ALR 377 at 380 . See also Viskauskas at CLR 291 ; ALR 40 Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ. 4 (1926) 38 CLR 441 ; [1927] ALR 66 . 5 Section 98(1)(b) relevantly provides: (4) An appeal under this section must be conducted as a review of the decision or order of the tribunal. (5) The Supreme Court may, on the hearing of an appeal, exercise one or more of the following powers: (a) affirm, vary or quash the decision or order appealed against, or substitute, or make in addition, any decision or order that should have been made in the first instance; (b) remit the subject matter of the appeal to the tribunal for further hearing or consideration or for rehearing; (c) make any order as to costs or any other matter that the justice of the case requires. 6 (1) A complaint alleging that a person has acted in contravention of this Act may be made— (a) by any person aggrieved by the act; (b) by any person aggrieved by the act, on behalf of himself or herself and any other person aggrieved by the act; (c) where a person aggrieved by the act has an intellectual impairment — by a person who is, in the opinion of the Commissioner, a suitable representative of the interests of the aggrieved person. Page 21 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 (1a) A person cannot make a complaint pursuant to subsection (1)(b) on behalf of some other person unless that other person has consented in writing to the making of the complaint. (1b) A person who consents to a complaint being made on his or her behalf is bound by any decision or order made on the complaint. (1c) A complaint— (a) must be in writing and set out the details of the alleged contravention; and (b) must be lodged with the Commissioner. (2) A complaint must be lodged— (a) when the alleged contravention is constituted of a series of acts — within 6 months of the last of those acts; (b) in any other case — within 6 months of the date on which the contravention is alleged to have been committed. (3) Upon a complaint being lodged under this section, the Commissioner must cause a written summary of the particulars of the complaint to be served, personally or by post, upon the respondent named in the complaint. 7 Section 109 of the Constitution provides that: When a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. 8 Section 10(1) and (3) have no application in this context. 9 (1983) 153 CLR 280 ; 47 ALR 32 (Viskauskas). 10 Commonwealth, Parliamentary Debates, House of Representatives, 25 May 1983, pp 923–4. Section 6A came into force on 19 June 1983. 11 The authority of Viskauskas decided that issue prior to the insertion of s 6A: at [11] above. 12 (1984) 158 CLR 447 at 454 ; 56 ALR 1 at 5 . 13 Sections 10 and 11 of the Sex Discrimination Act 1984 (Cth). 14 Section 13 of the Disability Discrimination Act 1992 (Cth). 15 Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 ; 214 ALR 24 ; [2005] HCA 9 at [88] per Kirby J. 16 Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 ; 215 ALR 253 ; [2005] HCA 28 at [35]–[36] (Palgo). 17 Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272–3 , 275 , 280 and 290 [1980] 2 All ER 696 at 699– 70, 701, 705 and 712 . 18 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 ; 12 ACLR 609 at 626 (Kingston) per McHugh JA, approved in Bropho v Western Australia (1990) 171 CLR 1 at 20 ; 93 ALR 207 at 216 . 19 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 321 ; 35 ALR 151 at 170–1 . 20 Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641 . 21 K Diplock, "The Courts as Legislators" in The Lawyer and Justice (ed B W Harvey), Sweet & Maxwell, London, 1978, p 263 at p 274, cited in Kingston at NSWLR 424 ; ACLR 627 . 22 New South Wales v Amery (2006) 230 CLR 174 ; 226 ALR 196 ; [2006] HCA 14 at [138] per Kirby J citing Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 260–1 ; 103 ALR 607 at 626–7 per McHugh J and Qantas Airways Ltd v Christie (1998) 193 CLR 280 ; 152 ALR 365 ; [1998] HCA 18 at [152] per Kirby J. 23 Re McComb [1999] 3 VR 485 ; [1999] VSC 311 at [22] . 24 IW v City of Perth (1997) 191 CLR 1 at 12 ; 146 ALR 696 at 702 ; [1997] HCA 30 per Brennan CJ and McHugh J (footnotes omitted). 25 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 ; 153 ALR 490 ; [1998] HCA 28 at [71] . Page 22 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 26 Commonwealth v Baume (1905) 2 CLR 405 at 414 ; (1905) 11 ALR 124 at 126–7 ; [1905] HCA 11 (Baume), per Griffith CJ; at CLR 419 ; ALR 128–9 , per O’Connor J; Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12–13 ; 110 ALR 97 at 101–3 , per Mason CJ. 27 Baume at CLR 414 ; ALR 126–7 . 28 (1691) 1 Show 106 ; 89 ER 480 . 29 Palgo at [37] . 30 R v Home Secretary; Ex parte Daly [2001] 2 AC 532 ; [2001] 3 All ER 433 ; [2001] UKHL 26 at [28] , per Lord Steyn. 31 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396–7 ; 141 ALR 59 at 63–5 ; 43 ALD 193 at 197–8 ; [1996] HCA 36 , citing R v Brown [1996] AC 543 at 561 ; [1996] 1 All ER 545 at 559 . 32 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 ; 60 ALR 509 at 514 ; 2 MVR 289 at 292–3 (K & S Lake City) (Mason J); Wik Peoples v Queensland (1996) 187 CLR 1 at 171 ; 141 ALR 129 at 222 ; [1996] HCA 40 per Gummow J. 33 Owen v South Australia (1996) 66 SASR 251 at 255–6 ; Thomas v Mowbray (2007) 233 CLR 307 ; 237 ALR 194 ; [2007] HCA 33 at [525] per Callinan J. 34 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 ; 141 ALR 618 at 634 ; [1997] HCA 2 . 35 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft [1975] AC 591 at 614 , 629 and 638 ; [1975] 1 All ER 810 at 814, 828 and 836 ; Wacando v Commonwealth (1981) 148 CLR 1 at 25–6 ; 37 ALR 317 at 335–6 ; Pepper v Hart [1993] AC 593 at 630 ; [1993] 1 All ER 42 at 60 . 36 Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 ; [1957] 1 All ER 49 at 53 , cited in K & S Lake City at CLR 312 and 315 ; ALR 511 and 512 ; MVR 290 and 291 . 37 Melville Homes Pty Ltd v Prime Ceramics Services Pty Ltd [1991] 2 VR 211 at 213 . 38 DC Pearce and KS Geddes, Statutory Interpretation in Australia, 6th ed, 2006, Chatswood, New South Wales, LexisNexis Butterworths, at [3.36], citing inter alia, Ory v Betamore Pty Ltd (No 2) (1990) 54 SASR 331 at 345 . 39 Pearce and Geddes, 2006, at [3.36], citing inter alia, Danziger v Hydro-Electric Commn [1961] Tas SR 20 at 24 . 40 Sections 25 and 26 of the Anti-Discrimination Act 1998 (Tas). 41 Section 21 of the Anti-Discrimination Act 1977 (NSW). 42 Section 82(1) of the Equal Opportunity Act 1995 (Vic). 43 Section 6. 44 Sections 104 and 105 of the Anti-Discrimination Act 1991 (Qld). 45 Section 51 of the EOA (WA). 46 Section 57 of the Anti-Discrimination Act (NT). 47 Section 7 of the Discrimination Act (ACT). 48 Section 8 defines “discriminate” by reference to attributes listed in s 7, which includes race. 49 South Australia, Parliamentary Debates, Legislative Council, 23 August 1984, p 501. 50 South Australia, Parliamentary Debates, Legislative Council, 30 October 1984, p 1573. 51 See ss 95(9) and 26 of the EOA. 52 Which incorporates para 4 of Art 1 of the Convention. 53 Article 1.4 of the Convention. 54 Gerhardy v Brown (1985) 159 CLR 70 at 124 ; 57 ALR 472 at 512 (Gerhardy). 55 (1985) 159 CLR 70 ; 57 ALR 472 . 56 Gerhardy at CLR 124 ; ALR 512 . 57 See the long title to the EOA. See also Burch v South Australia (1998) 71 SASR 12 at 18 per Cox J and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ; 153 ALR 490 ; [1998] HCA 28 at [69] per McHugh, Gummow, Kirby and Hayne JJ. 58 See Gerhardy at CLR 130 ; ALR 517 per Brennan J; see also ss 47, 82 and 85P of the EOA. 59 Gerhardy at CLR 130 ; ALR 517 . Page 23 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 60 Gerhardy at CLR 130 ; ALR 517 . 61 Atkinson v Central Northern Adelaide Health Service [2008] SAEOT 5 at [87], [91], [103] (Atkinson); AB2, 626, 627, 629. 62 Section 51(c) of the EOA. 63 Atkinson at [99] ; AB2, 629; the respondent apparently did not complain about the criterion that a patient be “Aboriginal or Torres Strait Islander: Atkinson at [19] ; AB2, 614. 64 Atkinson at [101]–[102] ; AB2, 629. 65 Atkinson at [25] ; AB2, 616. 66 Section 51(b)(ii). 67 Atkinson at [66] ; AB2, 623. 68 Atkinson at [72] ; AB2, 624. 69 Atkinson at [72] , [95] ; AB2, 624, 628; see also Wright v City of Brighton (1991) 162 LSJS 85 . 70 Atkinson at [96] ; AB2, 628; these points are identical to those made at [68]–[70] in the reasons of Rice J; AB2, 624; also at [101] quoted at [17] of this outline above. 71 Section 26 of the Acts Interpretation Act 1915; Gerhardy at CLR 160 ; ALR 494 per Mason J. 72 (1985) 159 CLR 70 ; 57 ALR 472 . 73 Gerhardy at CLR 83 ; ALR 480 per Gibbs CJ, at CLR 100–1 ; ALR 491 per Mason J, at CLR 122 ; ALR 509 per Brennan J. 74 Atkinson at [101] ; AB2, 629. 75 See also the Concise Oxford Dictionary, J Pearsall (ed), 10th ed, Oxford University Press, Oxford, 2001 definition of “denoting a proposition in which something is asserted of some but not all of a class. contrasted with universal”. 76 Compare the earlier use of the word “different” in the Handicapped Persons Equal Opportunity Act 1981: see footnote 10 above. 77 Affidavit of Dianne Margaret Jones, 7 September 2007, at [15]–[21]; AB2, 391–393; Ex DMJ27; AB2, 407. 78 Affidavit of Dianne Margaret Jones, 9 March 2007, at [34]; AB1, 55; 79 Affidavit of Dianne Margaret Jones, 9 March 2007, at [38]; AB1, 56; Affidavit of Dianne Margaret Jones, 7 September 2007, at [20]; AB2, 393; see Ex DMJ37; AB2, 598. 80 Provisions of the nature of s 65 of the EOA are often referred to as special measure provisions. In Gerhardy at CLR 128 ; ALR 516 Brennan J explained the rationale for such provisions: … it has long been recognised that formal equality before the law is insufficient to eliminate all forms of racial discrimination. In its Advisory Opinion on Minority Schools in Albania, the Permanent Court of International Justice noted the need for equality in fact as well as in law, saying: “Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations. It is easy to imagine cases in which equality of treatment of the majority and of the minority, whose situation and requirements are different, would result in inequality of fact …” As Mathew J said in the Supreme Court of India in State of Kerala v Thomas , quoting from a joint judgment of Chandrachud J and himself: “It is obvious that equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations”.In the same case, Ray CJ pithily observed: “Equality of opportunity for unequals can only mean aggravation of inequality”. The validity of these observations is manifest. Human rights and fundamental freedoms may be nullified or impaired by political, economic, social, cultural or religious influences in a society as well as by the formal Page 24 of 24 Central Northern Adelaide Health Service v Atkinson, (2008) 252 ALR 168 operation of its laws. Formal equality before the law is an engine of oppression destructive of human dignity if the law entrenches inequalities “in the political, economic, social, cultural or any other field of public life”. 81 Atkinson at [77] ; AB2, 625. 82 Atkinson at [75] ; AB2, 625. 83 In this respect s 85P is similar to s 47 which is the relevant exception in relation to discrimination on the grounds of sex, sexuality, marital status or pregnancy, and which provides: 47 Measures intended to achieve equality This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of the one sex, or of a particular marital status, have equal opportunities with persons of the other sex, or of another marital status, in any of the circumstances to which this Part applies. End of Document