FEDERAL COURT OF AUSTRALIA
Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615
PRACTICE AND PROCEDURE – summary dismissal – O 20 r 2 Federal Court Rules – whether applicant has standing – nature of rights sought to be enforced – whether private rights or public rights conferred – no consent of the Attorney-General sought to commence proceedings – whether statue confers rights such that applicant has standing
Held: Standing is to be determined by reference to whether the applicant is a “person aggrieved” in s 46P HREOC Act. Applicant does not have standing. Merely incorporating an association and giving voice to objects is not sufficient to create standing. The interests of the members of the body corporate do not equate with the interests of the body corporate. Applicant is not “aggrieved” in its own right. Applicant may not derive a special interest or status of “person aggrieved” from its members.
Acts Interpretation Act 1901 (Cth) s 15AA
Disability Discrimination Act 1992 (Cth) s 31, s 32
Federal Court of Australia Act 1976 (Cth) Pt IVA
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 3, 46P, 46PB, 46PO
Federal Court Rules O 20 r 2
Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 cited
Allan v Development Allowance Authority (1998) 80 FCR 583 cited
Allan v Transurban City Link Ltd (2001) 208 CLR 167 cited
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 cited
Anderson v Commonwealth of Australia (1932) 47 CLR 50 cited
Attorney-General (Gambia) v N’Jie [1961] AC 617 cited
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 applied
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 cited
Boyce v Paddington Borough Council [1903] 1 Ch 109 cited
Britannic Merthyr Coal Company Ltd v David [1910] AC 74 cited
Bropho v State of Western Australia [2004] FCA 1209 cited
Campbell v University of New South Wales (1992) 44 IR 56 cited
Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512 considered
Cooper v Human Rights & Equal Opportunity Commission (1999) 93 FCR 481 cited
Dajon Investments Pty Ltd v Talbot [1969] VR 603 cited
Davis v Commonwealth (1986) 68 ALR 18 cited
Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142 considered
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited
Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 distinguished
Farley & Lewers Ltd v AG [1963] NSWR 1624 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited
Gooley v Westpac Banking Corporation (1995) 129 ALR 628 cited
Gouriet v Attorney-General [1978] AC 435 cited
Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 cited
Groves v Lord Wimborne [1898] 2 QB 402 cited
“GS” v News Ltd (1998) Aust Torts Reports 81-466 cited
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 cited
Mallinson v The Scottish Australian Investment Company Ltd (1920) 28 CLR 66 cited
Manuka Business Association Inc v The Australian Capital Territory Executive and Minister for the Environment, Land and Planning [1998] ACTSC 86 distinguished
National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592 distinguished
North Coast Environment Council Inc v Minister for Resources (1994) 127 ALR 617 distinguished
Ogle v Strickland (1987) 13 FCR 306 cited
Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc (2006) SASC 114 considered
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 cited
Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 cited
Potter v Ferguson [1979] 1 NSWLR 364 cited
Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 cited
Re East, ex parte Nguyen (1998) 196 CLR 354 cited
Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 cited
Right To Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 applied
Robinson v Western Australian Museum (1977) 138 CLR 238 cited
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia (1995) 183 CLR 552 cited
SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 cited
Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 cited
Stokes v Royal Flying Doctor Service [2003] FMCA 164 cited
Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580 distinguished
Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 cited
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 cited
Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (1999) 200 CLR 591 cited
United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 cited
University of Newcastle v Chopra (1989) 85 ALR 321 cited
Victorian Chamber of Manufactures v The Commonwealth (1943) 67 CLR 335 cited
Western Australia v Ward (2002) 213 CLR 1 cited
Wool Sliping and Scouring Co Ltd v Central Wool Committee (1920) 28 CLR 51 cited
Stein LA (ed), Locus Standi (Law Book Company, 1979)
ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC v HERVEY BAY CITY COUNCIL
QUD76 OF 2006
COLLIER J
2 MAY 2007
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
QUD76 OF 2006 |
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BETWEEN: |
ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC Applicant
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AND: |
HERVEY BAY CITY COUNCIL Respondent
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COLLIER J |
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DATE OF ORDER: |
2 MAY 2007 |
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WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The application filed by Access For All Alliance (Hervey Bay) Inc on 5 May 2005 be dismissed.
2. Access For All Alliance (Hervey Bay) Inc pay Hervey Bay City Council’s costs of and incidental to the application, to be taxed if not otherwise agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
QUD76 OF 2006 |
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BETWEEN: |
ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC Applicant
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AND: |
HERVEY BAY CITY COUNCIL Respondent
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JUDGE: |
COLLIER J |
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DATE: |
2 MAY 2007 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
1 Before me is an application filed 19 August 2005, by the respondent to the substantive proceedings, seeking orders that:
· the application in the substantive proceedings be dismissed
· the applicant pays the respondent’s costs of and incidental to the application.
2 The respondent seeks dismissal of the substantive proceedings pursuant to O 20 r 2 Federal Court Rules.
3 The application in the substantive proceedings was originally filed in the Federal Magistrates Court. Following the filing and service of a notice on the applicant by the respondent pursuant to s 78B Judiciary Act 1903 (Cth) asserting that the Federal Parliament did not have power under the Constitution to enact s 31(1)(d)(ii), (v) and (vii) Disability Discrimination Act 1992 (Cth) (“DD Act”) or, in the alternative, to enact the Disability Standards for Access to Public Transport 2002 (“Disability Standards”) insofar as they purported to apply to the Hervey Bay City Council, the matter was transferred by consent to the Federal Court of Australia on 22 November 2005. However, at the hearing before me on 5 September 2006 the matter was adjourned in respect of this notice, because the respondent had not complied with prescribed requirements of service on a number of Attorneys-General. Accordingly, the sole issue with which I am concerned at present is whether the application originally filed 5 May 2005 and subsequently amended by an amended application filed 7 November 2005 should be dismissed pursuant to O 20 r 2 Federal Court Rules.
4 For convenience, I will continue to refer to the applicant to the substantive proceedings as “the applicant” in this judgment, and the respondent to the substantive proceedings as “the respondent”.
5 I note that Acting Disability Discrimination Commissioner (“the Commissioner”) sought leave at the hearing of 5 September 2006 to appear in these proceedings as amicus curiae. On 5 September 2006 I granted the Commissioner both leave to appear and to make oral submissions in the proceedings.
Background
6 The applicant is incorporated under the Associations Incorporation Act 1981 (Qld). By its statement of claim it describes itself as a volunteer community group, established to ensure equitable and dignified access to all premises and facilities, whether public or private, to all members of the community.
7 The respondent is a body incorporated pursuant to s 35 Local Government Act 1993 (Qld) and is the local government authority responsible for the Hervey Bay municipality. As such the respondent has responsibility for the management, maintenance and development of public transport infrastructure for buses in the Hervey Bay area of Queensland.
8 I understand that the applicant lodged a complaint in respect of this matter with the Human Rights and Equal Opportunity Commission (“HREOC”), however the complaint was terminated by the President of HREOC on 14 April 2005.
9 In summary, the applicant has claimed:
1. That the respondent has contravened the Disability Standards in respect of bus stop infrastructure installed or substantially changed since 23 October 2002; and
2. relief against the respondent pursuant to s 46PO Human Rights and Equal Opportunity Act 1986 (Cth) (“HREOC Act”) and s 31 and s 32 DD Act.
10 The relief sought by the applicant in the substantive proceedings is in essence:
1. a declaration that the respondent has, in its modification and/or installation of bus stops since 23 October 2002, acted unlawfully under s 32 of the DD Act by failing to ensure that the modification or installation was done in compliance with the Disability Standards made under s 31 DD Act.
2. an order that the respondent not repeat its unlawful conduct under s 32 DD Act.
3. an order that the respondent not continue its unlawful conduct under s 32 DD Act by ensuring that all bus stops installed or modified since 23 October 2002 be modified to comply with the Disability Standards, as amended.
4. an order that the respondent pay the applicant’s costs in the proceedings.
11 These claims, and the orders sought by the applicant, can be found in the applicant’s amended application and statement of claim filed 7 November 2005, statement of facts and contentions, and outline of submissions. The reason I note the additional documents is that in cll 1, 2, 3, 4 of the amended application, the applicant seeks orders under “sections 16 and 46PO...of the Federal Magistrates Court Act 1999”. There is no reference in the amended application to the HREOC Act, upon which it appears the applicant is relying. In the context of the application currently before me it appears that the respondent has accepted that the substantive proceedings are brought pursuant to the HREOC Act and the DD Act. At this stage it is unnecessary for me to comment further on what appears to be an error in the amended application.
Summary dismissal pursuant to Order 20 rule 2
12 The application for summary dismissal in this case is founded in O 20 r 2 Federal Court Rules.
13 Order 20 r 2 provides:
(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding
a. No reasonable cause of action is disclosed;
b. The proceeding is frivolous or vexatious; or
c. The proceeding is an abuse of the process of the Court
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1).
14 The power to dismiss an application summarily must be exercised with great caution and only in the clearest of cases to ensure that an applicant is not deprived of its opportunity for trial of its case: Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130. As Dixon J said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:
The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
Application for dismissal
15 There are two broad grounds upon which the respondent has applied for an order that the substantive proceedings be dismissed by this Court. They are as follows:
1. Primarily, that the applicant has no standing to prosecute this claim, either
a. because the rights sought to be enforced by the applicant are public rights and the consent of the Attorney-General has not been provided; or
b. because the applicant is not an aggrieved person; and
2. No instance of actual discrimination against a person has been identified and the applicant has not proven that the respondent has failed to provide equivalent access to an individual who cannot negotiate the public transport infrastructure by reason of a failure by the respondent to comply with the express terms of the Disability Standards.
16 Counsel for the applicant, the respondent and the Commissioner have provided helpful and extensive submissions to the Court for the purposes of this application. It is appropriate to consider these grounds in turn.
The relevant legislation
17 The unlawful discrimination claimed by the applicant in its application is referable to Pt 2 DD Act and in particular the Disability Standards. Section 32 DD Act provides that it is unlawful for a person to contravene a disability standard, which means standards formulated by the Minister pursuant to s 31 DD Act. So far as relevant, the section provides:
(1) The Minister may formulate standards, to be known as disability standards, in relation to:
(a) the employment of persons with a disability; and
(b) the education of persons with a disability; and
(c) the accommodation of persons with a disability; and
(d) the provision of public transportation services and facilities by:
(i) the Commonwealth; and
(ii) a State; and
(iii) a Territory; and
(iv) a public authority of the Commonwealth; and
(v) an instrumentality of a State; and
(vi) a public authority of a Territory; and
(vii) any other person;
to a person with a disability; and
(e) the administration of Commonwealth laws and programs in respect of persons with a disability; and
(f) the access to or the use of any premises, by persons with a disability, that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not).
(1A) For the avoidance of doubt, disability standards may require a person or body dealing with persons with disabilities to put in place reasonable adjustments to eliminate, as far as possible, discrimination against those persons.
18 It is not in contention that the Disability Standards the subject of these proceedings were formulated pursuant to s 31 DD Act.
19 The purpose of the Disability Standards is stated in cl 1.2 to be as follows:
1. The Disability Discrimination Act 1992 seeks to eliminate discrimination “as far as possible” against people with disabilities. Public transport is a service covered by the Disability Discrimination Act 1992.
2. The purpose of these Standards is to enable public transport operators and providers to remove discrimination from public transport services.
20 The Disability Standards are extensive, and include standards with respect to matters including manoeuvring areas for wheelchairs, boarding points and ramp access, handrails and grabrails, doorways and doors, street furniture and payment of fares. Guiding principles with respect to the Disability Standards are provided in the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3) (“Guidelines”). The Guidelines appear to be a non-legislative instrument which accompany the Disability Standards and assist in understanding and interpreting them. Of particular interest is cl 1.2(3) of the Guidelines which states, inter alia:
The Disability Standards prescribe national requirements that public transport service providers and facility operators must meet in order to comply with the Disability Discrimination Act 1992 in these areas. The Disability Standards detail mandatory performance outcomes covering a range of accessibility issues. Due to the very specific requirements in the Disability Standards, they are the national authority for compliance with anti-discrimination legislation in the areas specified in the Disability Standards.
21 The power and processes to seek redress for unlawful discrimination are found in Pt II HREOC Act. “Unlawful discrimination” is defined in s 3(1) HREOC Act as meaning, inter alia, any acts, omissions or practices that are unlawful under Pt 2 DD Act. So far as relevant for the purposes of the application before me, the HREOC Act provides:
· The complainant must lodge a written complaint with HREOC, alleging unlawful discrimination (s 46P(1)).
· The complainant must be a person aggrieved by the unlawful discrimination on that person’s own behalf or on behalf of that person and one or more other persons who are also aggrieved (s 46P(2)(a)); two or more persons aggrieved by the alleged unlawful discrimination on their own behalf or on behalf of themselves and one or more other persons who are also aggrieved (s 46P(2)(b)); or a person or trade union on behalf of one or more other persons aggrieved by the alleged unlawful discrimination.
· The term “a person aggrieved” is not defined by the HREOC Act.
· If a complaint under the HREOC Act is terminated by the President, any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (s 46PO(1)). The unlawful discrimination alleged in the complaint to the Court must however be either the same as that the subject of the terminated complaint, or arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint (s 46PO(3)).
Ground 1(a): Private, public or statutory rights?
22 Notwithstanding legislative developments permitting proceedings by private citizens in respect of decisions by public bodies – the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) being an obvious example – the position with respect to standing to commence private proceedings in Court for breach of statute remains to some degree uncertain. This is reflected in the different approaches adopted by the parties to this case.
General principles
23 The traditional approach to standing in matters involving the enforcement of statutes was that while interference with private rights could be asserted by individuals, public rights could only be asserted by the Attorney-General representing the public, either in the name of the Attorney or at the relation of some complainant: Boyce v Paddington Borough Council [1903] 1 Ch 109, Gouriet v Attorney-General [1978] AC 435; Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, Davis v Commonwealth (1986) 68 ALR 18 per Gibbs CJ at 35-36; Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 261. As observed by Mason J in Australian Conservation Foundation 146 CLR at 547-8:
Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests...and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum (1977) 138 CLR 283 at 327-328: “The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another”.
24 Defining private rights for this purpose is a distinct challenge (note Heydon JD “Injunctions and Declarations” in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are “private rights” enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and “public rights” the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law – note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 – giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.)
25 Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth):
statutes may of course confer standing in express terms...they may also do so by conferring some right the denial of the enjoyment of which gives standing to sue to complain of that denial. Although that very denial might be thought to qualify as the suffering of special damage such as that of which Buckley J spoke, it is, perhaps, preferable in such a case to resolve the question of standing by the direct route of a search for enforceable rights conferred by statute, rather than follow the circuitous course of seeking, in accordance with Boyce’s Case, for the existence of special damage. (cf Gibbs J at 532)
26 Whether a statute confers upon individuals personal rights and standing to enforce those rights are matters to be determined on the construction of the statute, by reference to the subject, scope and purpose of that statute: Allan v Transurban City Link Ltd (2001) 208 CLR 167 at 174; cf McInerney J in Grand Central Car Park [1969] VR at 74, Kaye and Marks JJ in Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 at 486 and Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841.
This case
27 The respondent made written submissions to the following effect:
a. the applicant is doing nothing other than attempting to enforce the public law as enacted by the provisions of the DD Act and the Disability Standards
b. there is no right subsisting for the benefit of the applicant or its members personally that is sought to be asserted through this litigation
c. the application by the applicant is one to assert the effect of the public law of the Commonwealth and the applicant therefore faces the difficulty in relation to standing as the application is a bare attempt to assert a public right or duty: Australian Conservation Foundation 146 CLR 493. The applicant has no special interest or private right asserted by the litigation, and there is no statutory basis providing standing in respect of the complaint: Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (1999) 200 CLR 591
d. no relator action is brought in the name of the Attorney-General at the applicant’s request that such proceeding be undertaken: Farley & Lewers Ltd v AG [1963] NSWR 1624
e. this is not a case where the interference with a public right is such that the applicant suffers special damage peculiar to itself from the interference: Boyce [1903] 1 Ch 109
f. the applicant does not have standing to bring the prosecution. Accordingly, the complaint does not disclose a reasonable cause of action and should be struck out: Australian Conservation Foundation 146 CLR 493.
28 The applicant submitted in summary:
a. the issue of standing to commence an action under the HREOC Actor the DD Act is to be determined on the proper construction of those Acts, not by reference to provisions of other enactments or common law principles: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290
b. given that the legislation is for the benefit of a burdened class of the public, in the event of ambiguity the legislation should receive a beneficial interpretation: Cooper v Human Rights & Equal Opportunity Commission (1999) 93 FCR 481
c. contravention of a standard may be cause for complaint under s 32 DD Act
d. section 46P(2) HREOC Act defines who may lodge a complaint under the HREOC Act. The section contemplates a complaint by an “aggrieved person” on the basis of “alleged unlawful discrimination”
e. the provisions of the HREOC Act and the DD Act make it plain that they confer private rights with respect to “unlawful discrimination” as defined in s 3 HREOCAct
f. the proceedings in the Court involve a determination of the allegations of unlawful discrimination as set out in the complaint, and are circumscribed by the complaint which was terminated by the President
g. the applicant’s complaint concerns ss 31 and 32 DD Act, and the terms of the complaint and the proceedings before the Court raise the issue of a contravention of the Disability Standards
h. the HREOC Act operates to allow complaints to be made about non-compliance with the Disability Standards. Section 46P(1) HREOC Act creates a private right to make a complaint based on s 32
i. the material clearly identifies a dispute between the applicant and the respondent, namely the failure on the part of the respondent to comply with the Disability Standards
j. Australian Conservation Foundation 146 CLR 493 is not relevant in this matter because the High Court found that the provisions of the relevant legislation in that case did not create private rights
k. the approach taken by the High Court in Truth About Motorways 200 CLR 591 confirms that the provisions of the HREOC Act and the DD Act permit the applicant to proceed in this Court.
29 The submissions of the applicant were supported by those of the Commissioner, to the extent that the Commissioner contended that:
a. the HREOC Act and the DD Act create private rights in relation to the Disability Standards
b. accordingly, the legal capacity of a particular person to bring proceedings must be answered by reference to the terms, subject, scope and purpose of the statute, rather than the application of concepts derived from the general law of standing
c. the right to bring a complaint of unlawful discrimination derives from the HREOC Act not the DD Act
d. “unlawful discrimination” is defined in s 3 HREOC Act as “any acts, omissions, or practices that are unlawful under...Part 2” of the DD Act. Part 2 includes s 32
e. it is unnecessary for the applicant to seek equitable remedies to restrain breaches of public rights; rather the HREOC Act provides a number of statutory remedies for a contravention of the standards and other acts of unlawful discrimination in s 46PO(4)
f. the standing of the applicant to bring a complaint of unlawful discrimination is better characterised as a question of whether the applicant has met any conditions imposed by the legislation for the commencement of the proceedings.
30 In this case, the respondent has drawn an analogy between the applicant’s claim and the difficulties faced by the Foundation in Australian Conservation Foundation 146 CLR 493, which was found by the High Court to have no special interest or private right to sustain proceedings. In my view however the relevant legislation in Australian Conservation Foundation 146 CLR 493 was very different to that in this case. A key difference was summarised by Stephen J in Australian Conservation Foundation 146 CLR 493, where his Honour observed that, with reference to the relevant legislation and legislative instruments in that case,
...the subject matter of the [Environmental] Procedures is such as to suggest that the appellant has no standing to enforce compliance with them. They are not a code of procedure, such as is familiar in town planning legislation, designed to ensure that those who are likely to be affected by the grant of some permit or the rezoning of some land are given a right to object and to have their objection heard and determined. (at 544) (emphasis added) (cf Gibbs J at 532)
31 In contrast, in the case before me the HREOC Act and the DD Act (including the Disability Standards formulated pursuant to s 31) provide a scheme which allows “a person aggrieved” by alleged unlawful discrimination - including, as I have already noted, conduct deemed unlawful by s 32 DD Act - to lodge a complaint with HREOC (s 46P HREOC Act); and in the event that the complaint is terminated, a person affected by the termination to make application to the Federal Court or the Federal Magistrates Court (s 46PO HREOC Act). Significantly, the HREOC Act also creates a specific structure sanctioning applications to the Court for remedies where the Court is satisfied that there has been unlawful discrimination, including payment of damages by the respondent, employment or re-employment an applicant, an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination as is sought in this case (s 46PO(4) HREOC Act). Indeed the point of the statutory scheme as constituted in this case by the HREOC Act and the DD Act is to make laws with respect to discriminatory conduct, and to allow those who are aggrieved by discriminatory conduct, personal rights to seek redress in respect of such conduct. To adopt the language of the majority of the High Court in Re East, ex parte Nguyen 196 CLR at 365, repeated in Western Australia v Ward (2002) 213 CLR 1 at 96,
The elaborate and special scheme...was plainly intended by the Parliament to provide the means by which a person aggrieved by a contravention ... might obtain a remedy, and thus was regarded by Parliament as fulfilling Australia’s treaty obligations, bearing always in mind the legal structure and system which formed the context in which the [legislation] was to operate.
(That those comments were in respect of the legislation as it stood prior to amendments, and the removal of provisions from the HREOC Act into the DD Act and other statutes, does not in any way minimise their relevance. As observed, in my view correctly, by Nicholson J in Bropho v State of Western Australia [2004] FCA 1209 at [26]-[29] and [51]-[52], they are equally applicable to the scheme as it presently exists.)
32 The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful, public rights are created. However the fact that legislation provides that conduct is “unlawful” does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; “GS” v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself.
33 Both the applicant and the Commissioner have submitted that in this case the issue of standing is to be determined on the proper construction of the HREOC Act and the DD Act, and not by reference to principles of general law. In my view this is correct. Findings supporting this submission were made by the Full Court in Stephenson v Human Rights and Equal Opportunity Commission 68 FCR at 296 in relation to provisions of the HREOC Act and the Sex Discrimination Act 1985 (Cth) Further, I note observations of the High Court in Allan v Transurban City Link Ltd 208 CLR at 174 that:
A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute.
34 It is clear on any consideration of the regime established by the HREOC Act and the DD Act that in determining whether the applicant has standing to sue, the critical question is whether the applicant is “a person aggrieved” in terms of s 46P HREOC Act. The regime established by these Acts clearly extends to conduct in breach of s 32 DD Act and any disability standards formulated pursuant to s 31 DD Act. The statutory scheme, and the entitlement of any person to seek any remedy under that scheme, is predicated upon a person being “aggrieved” by unlawful conduct. Statutory rights are created in favour of a person who is aggrieved. Such a person may seek remedies in accordance with the legislation as of right provided they can satisfy the Court that they are, in truth, “aggrieved”. In these circumstances the fiat or consent of the Attorney-General to the commencement of proceedings is not necessary.
Ground 1(b): Is the applicant an aggrieved person for the purposes of the HREOC Act?
35 Before me at the hearing, Mr Fleming QC made oral submissions as to whether the applicant, being an incorporated body, could be a person aggrieved by the complaints that have been made. In summary, Mr Fleming QC submitted:
a. cases where unincorporated associations have been accorded standing, for example Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, have no application in this case because the applicant is an incorporated entity
b. although the applicant is an association of people who have a genuine concern and interest in disability, this does not give them a greater interest in the matter than anyone else, and therefore does not make them “aggrieved”
c. no specific act of discrimination is pleaded, and therefore there can be no person “aggrieved”. For a person to be aggrieved the person must be prejudicially affected by an act
d. the applicant, an incorporated body, cannot be a person aggrieved in this context because a corporation cannot be aggrieved by conduct with respect to bus stops unless the corporation was affected, for example, by a wrong to one of its employees, and that is not the case here.
36 Ms Eastman on behalf of the applicant submitted, inter alia, that:
a. the majority of the applicant’s constituents are people with disabilities who are resident in the Maryborough and Hervey Bay areas of Queensland, and who have the requisite interest associated with the actions of the respondent in the provision of goods and services within the Hervey Bay area
b. the applicant is an aggrieved person within the meaning of s 46P(2) HREOC Act
c. HREOC’s acceptance of the complaint would indicate that HREOC had accepted that the applicant was a person who could make a complaint for the purpose of s 46P(2) HREOC Act, and the respondent did not challenge that decision by way of judicial review under the ADJR Act
d. once a decision was made by the President of HREOC to terminate the applicant’s complaint pursuant to s 46PH(1) HREOC Act the applicant became an “affected person” as defined in s 3 HREOC Act. There is no requirement for the purpose of making an application to the Court that the applicant re-establish that it is an aggrieved person after the complaint was accepted by the Commission and investigated by the President. The applicant cites two decisions of the Federal Magistrates Court, Stokes v Royal Flying Doctor Service [2003] FMCA 164 and Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915, in support of this proposition.
“Person aggrieved” - relevant principles
37 The term “person aggrieved” is not defined in the HREOC Act. However in my view the following principles are applicable.
38 First, I do not accept the submission of the applicant which can be summarised as that, once a complaint has been terminated by the President of HREOC and the complainant then is an “affected person” for the purposes of s 46PO HREOC Act:
· the complainant automatically has standing before the Court as an “affected person”;
· the issue whether the complainant was “aggrieved” cannot be revisited by the Court; and
· the only avenue open to the respondent in the circumstances would have been to bring an application under the ADJR Act to challenge the acceptance by HREOC of the complaint.
39 I agree with the submissions of Mr Lenehan for the Commissioner which are in summary:
a. the jurisdiction of the Court is enlivened under s 46PO(1) HREOC Act where a “complaint” has been terminated by the President of HREOC
b. the complaint must have been a valid complaint for the purposes of s 46P HREOC Act, namely that the complaint was lodged by or on behalf of a “person aggrieved” by the alleged unlawful discrimination
c. in accepting the complaint under s 46P, HREOC is not making a determination which is binding on this Court as to whether the complainant is a “person aggrieved” for the purposes of s 46P. As Brennan J observed in Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 242 “It is the court’s judgment and not the administrative body’s opinion which defines the extent of...its statutory authority”
d. it is not the case that whether a complainant is a “person aggrieved” can only be addressed by judicial review of the decision of HREOC to accept the complaint. This is inconsistent with Parliament’s intention to create a process for handling discrimination complaints which would be efficient and unburdened by technicality (Human Rights Legislation Amendment Bill 1998 (Cth) Second Reading Speech, Honourable Daryl Williams, Commonwealth Parliamentary Debates, House of Representatives, 3 December 1998, 1276).
40 Second, resolution of whether a person is “aggrieved” in the circumstances of any case is not merely a question of law. As Beaumont and Foster JJ said in Cameron v Human Rights and Equal Opportunity Commission (1993) 46 FCR 509 at 515 (in considering s 22 Racial Discrimination Act 1975 (Cth) as it stood prior to amendment, and which is in similar form to s 46P HREOC Act as currently exists):
In our opinion, whether a person is “aggrieved by [an] act [that is unlawful by virtue of a provision of Part II of the Act]” is a mixed question of fact and law. (emphasis added)
41 Third, in order for a person to be “aggrieved” the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct (Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings (Australian Conservation Foundation 146 CLR at 547-548). The words do not include “a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests”: Attorney-General (Gambia) v N’Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37).
42 Fourth, the respondent’s submissions concerning this issue have substantially equated “person aggrieved” for the purposes of s 46P HREOC Act with principles articulated in Boyce [1903] 1 Ch 109 and the possession by a complainant of a special interest so as to enforce the public rights created by statute. Clearly, there is a different jurisprudential approach entailed by identifying whether rights created by statute are public rights permitting enforcement by an individual in circumstances only where the individual has a special interest, compared with considering legislation authorising a person aggrieved to enforce statutory rights created by the legislation. Nonetheless, it is certainly the case that Courts have explained the words “person aggrieved” in terms of special interest in the public law sense. So, for example, in Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 at 447, Bowen CJ and Franki J said the words “a person who is aggrieved”:
...are not to be confined to those who can establish that they have a legal interest at stake in the making of the decision. In our view they cover a person who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public. (see Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 per Ellicott J)
(cf United States Tobacco Company v Minister for ConsumerAffairs (1988) 20 FCR 520 at 527, Ogle v Strickland.)
43 The nature of the complainant’s interest was expressed slightly differently by Gibbs CJ in Koowarta 153 CLR at 183 where his Honour said:
The words “person aggrieved” have appeared in many statutes, English and Australian, and their meaning has been discussed in many cases. In the end of course the meaning of the words must depend on the context of the particular statute. It has often been said that the words connote a person with a legal grievance: see In re Sidebotham (1880) 14 ChD 458 at 465; Buxton v Minister of Housing and Local Government (1961) 1 QB 278 at 285 .The cases under the Trade Marks Acts to which we were referred are consistent with that view; they suggest that a person is “aggrieved” by an act which operates in restraint of what would otherwise have been his legal rights: Powell v Birmingham Vinegar Brewery Co (1894) AC 8 at 10, 12; Attorney-General (NSW) v Brewery Employee's Union of NSW (1908) 6 CLR 469 at 497, 519, 550; Continental Liqueurs Pty Ltd v GF Heublein and Bro Inc (1960) 103 CLR 422 at 427... (I)n determining the meaning of the expression “person aggrieved” in s 24 of the Act it is necessary to have regard to the remedies which such a person may obtain under s 25. These include damages in respect of loss suffered by the person aggrieved by the relevant act and loss of dignity by, humiliation to, or injury to the feelings of, a person aggrieved by the relevant act. If the refusal of consent proves to have been unlawful, Mr Koowarta may be able to obtain damages of that kind. In all these circumstances it seems to me that he is a “person aggrieved” and entitled to maintain the proceedings.
44 Fifth, traditionally the term “person aggrieved” should not be interpreted narrowly: N’Jie [1961] AC at 634, Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a “special interest” sufficient to sustain litigation,
The rule is obviously a flexible one since, as was pointed out in [Australian Conservation Foundation], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.
45 Sixth, in interpreting “person aggrieved” in this context, it is appropriate to accord a construction that would promote the purpose or object underlying the relevant legislation rather than a construction that would not promote that purpose or object: s 15AA(1) Acts Interpretation Act 1901 (Cth). In light of the scheme created by the interaction of the HREOC Act and the DD Act for the purpose of permitting aggrieved persons to make complaints in relation to unlawful discrimination, it is prima facie appropriate to extend a consideration of the term beyond the purpose of the HREOC Act to include the purpose of the DD Act. This is particularly so given that the unlawful discrimination alleged derives from ss 31 and 32 DD Act. I have already noted observations of the High Court in Re East, ex parte Nguyen 196 CLR 354 as to the intentions of Parliament in relation to the scheme to provide the means by which a person aggrieved by a contravention might obtain a remedy. I also note the objects of the DD Act as stated in s 3 of the Act:
The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
46 Seventh, to the extent that the respondent submits that, as a general proposition, a body corporate cannot be an aggrieved person in the context of this scheme, I do not accept that submission. As noted by Mason J in Koowarta 153 CLR at 236 in considering the issue of standing under the Racial Discrimination Act 1975 (Cth) (in its then form):
By virtue of s 22(a) of the Acts Interpretation Act 1901 (Cth) a reference in a statute to a “Person” includes a reference to a body corporate, unless a contrary intention appears. It is submitted that because, generally speaking, human rights are accorded to individuals, not to corporations, “person” should be confined to individuals. But, the object of the Convention being to eliminate all forms of racial discrimination and the purpose of s 12 being to prohibit acts involving racial discrimination, there is a strong reason for giving the word its statutory sense so that the section applies to discrimination against a corporation by reason of the race, colour or national or ethnic origin of any associate of that corporation.
47 I also note other cases where standing as “aggrieved person” has been recognised in relation to corporate bodies, including National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592, Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580, North Coast Environment Council Inc v Minister for Resources (1994) 127 ALR 617 and Manuka Business Association Inc v The Australian Capital Territory Executive and Minister for the Environment, Land and Planning [1998] ACTSC 86.
48 Eighth, merely incorporating a body and providing it with relevant objects does not provide it with standing it otherwise would not have had. This point was made clear in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, particularly by Lockhart J at 67. The Court in that case approved similar comments of Lindgren J at first instance where his Honour said:
The applicant submitted that what distinguished it from ordinary members of the public was that it was organised, and since 1984 incorporated, with objects directly related to the subject matter of the decision sought to be challenged. But to accord the status of a “person aggrieved” for no more reason than this would be to elevate form above substance. It would allow individuals who were opposed to a decision, albeit sincerely and for unselfish motives, to acquire standing to challenge it by the procedure of devising an appropriate form of constitution, and if necessary procuring corporate form. It would, for example, distinguish between the unsuccessful Mr Cameron in Cameron v Human Rights and Equal Opportunity Commission noted above and an incorporated association of individuals organised under a constitution with objects of seeking a more equitable allocation of scholarships to Fijians. In my opinion, the issue of standing is not to be foreclosed by such a formal distinction. (Right to Life Association (NSW) Inc v The Secretary of the Commonwealth Department of Human Services and Health and Family Planning Victoria Inc, unreported, 23 September 1994, para 69)
49 Ninth, although entities incorporated pursuant to the Associations Incorporation Act 1981 (Qld) are fundamentally community organisations (note for example Associations Incorporation Bill, Second Reading Speech, Hon SS Doumany Minister for Justice and Attorney-General, 7 May 1981) and as a general proposition should not be equated with traditional trading corporations (note for example comments of Giles CJ in Rugby Union Players Association Inc v Australian Rugby Union Ltd, unreported 30 July 1997, in the security for costs context), nonetheless they are bodies corporate which may sue or be sued in their own name (s 21).
50 Tenth, to the extent that incorporated associations are bodies corporate which may sue or be sued in their own name, in assessing the interests of a body corporate the interests of its members are arguably irrelevant. So in Victorian Chamber of Manufactures v The Commonwealth (1943) 67 CLR 335 at 343 Starke J, without needing to decide the point, observed that an infringement of the rights of members of an incorporated body does of itself mean that the rights of the incorporated body are infringed, or that the incorporated body has standing to maintain an action (cf Lockhart J in Right to Life 56 FCR at 253 and Nicholson J in Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142). This may be distinguished from the position concerning unincorporated associations. A useful illustration of this point in this context is Scully 79 FCR 537, where an unincorporated association commenced proceedings under the Racial Discrimination Act 1975 (Cth) (in its then form), Wilcox J said:
I agree with Commissioner Nettlefold that, as Executive Council for Australian Jewry is not a “person” in the eyes of the law, it is incapable of being a ‘person aggrieved’ within the meaning of s 22(1) of the Racial Discrimination Act. Therefore it is not itself a competent complainant. However, this does not mean its complaint is a nullity. It is necessary to go behind the name and consider whether the juristic persons who constitute the unincorporated association are ‘persons aggrieved’ by the allegedly unlawful act. If they are, the complaint is competent in law, though not in name, as it was made by them. (at 548)
51 Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right (Australian Conservation Foundation 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a “person aggrieved” for the purposes of the relevant legislation (Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a “person aggrieved” (North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86).
Consideration and findings
52 As I have already explained, to be a “person aggrieved” by breach of s 32 DD Act and the Disability Standards formulated pursuant to s 31, it is necessary to show that the complainant has more than an intellectual or emotional concern in the subject matter of the proceedings. Indeed, it is necessary to show that, if there has been a breach of the legislation (and the Disability Standards) the complainant can show a grievance which will be suffered beyond that of an ordinary member of the public.
53 It is clear in this case that the complainant does have an intellectual or emotional concern in the subject matter of the proceedings. I accept that the purpose of the applicant is to ensure that all members of the Hervey Bay community have access to all premises and facilities in the region. However merely incorporating an association and giving voice to such objects is not sufficient to create standing, or to establish that the association is a “person aggrieved”: Australian Conservation Foundation 146 CLR at 530, Right to Life 56 FCR at 67, 77.
54 As the cases have shown, it is possible that a body corporate can be the subject of racial discrimination where the association is the subject of discrimination by reason of the race, colour or national or ethnic origin of any associate of that corporation: Scully 79 FCR 537 and Koowarta 153 CLR 168. Similar principles potentially apply in relation to a body corporate which claims discrimination as a result of conduct in breach of the DD Act. So, for example, if an incorporated association representing disabled people was refused a lease of accommodation because of the objects of the association and the attributes of its members, it is arguable that the association itself would be a “person aggrieved” by that conduct. However as Mr Fleming submitted, it is more difficult to establish that the applicant, an incorporated association, is a person aggrieved within the meaning of the HREOC Act and the DD Act where the applicant is complaining about a breach of disability standards associated with accessing public transport.
55 Before me, Mr Fleming on behalf of the respondent submitted that the applicant represented a general body of people, which might include people without a disability but with a genuine concern as to disability, and that this does not give the applicant a greater interest in the matter than anyone else. Mr Fleming cites Australian Conservation Foundation 146 CLR 493 in support of this submission. There is a distinction between the case before me and such cases as Australian Conservation Foundation 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142, namely that in each of those cases it was clear that the members of the association had no more interest in the proceedings - be they concerning the establishment of a resort in Central Queensland, abortion drugs, bat rookeries or rabbit calicivirus disease - than ordinary members of the public. In this case, it appears that the applicant was incorporated to represent people who have an interest in, inter alia, accessing public transport in the Hervey Bay region, and it further appears that it does represent some people who live in the Hervey Bay region and some people who are disabled and who may be aggrieved by non-compliance with the Disability Standards in that region. Potentially, for example, those members who are both disabled and live in the Hervey Bay region have an interest in these proceedings more than ordinary members of the public.
56 I note that the applicant in its written submissions contended that the majority of its members are people with disabilities who are resident in the Maryborough and Hervey Bay areas of Queensland, and that those members have the requisite interest associated with the actions of the respondent in the provision of goods and services within the Hervey Bay areas. The applicant cited Scully in support of this submission.
57 However to my mind the reference to Scully 79 FCR 537, and the relevance of the possible interests of the members of the applicant, can be answered as follows.
58 First, in my view Scully 79 FCR 537 is of minimal assistance to the applicant. There is a clear and obvious distinction between unincorporated associations, as was the applicant in Scully 79 FCR 537, and incorporated associations such as the applicant. Whilst it is true that incorporated associations are community-based organisations and in many respects, as I have already noted, are not comparable with commercial companies operating for profit-making purposes, nonetheless it would be improper to ignore the status attributed to such associations by the Associations Incorporation Act 1981 (Qld). The applicant is body corporate which needs to establish that it is a person aggrieved in its own right. Unlike the applicant in Scully 79 FCR 537, it is not an unincorporated association which may derive a special interest or status of “person aggrieved” from its members.
59 Second, there is substantial body of authority, to which I have already referred, that the interests of members of a body corporate do not equate with the interests of the body corporate: Victorian Chamber of Manufactures 67 CLR 335, Right to Life 56 FCR 50, Defence Coalition against RCD 74 FCR 142.
60 Third, in any event I am not persuaded that the possible interests of the members of the applicant in this case are sufficient to distinguish this case from the general body of law represented by such cases as Australian Conservation Foundation 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142. I note that the nature of the membership of the association was taken into consideration in Manuka [1998] ACTSC 86 where Higgins J held that the complainant had standing as an aggrieved person because each of its members would have a real interest in the subject matter of the decisions. However in this critical respect Manuka [1998] ACTSC 86 is immediately distinguishable from the case before me. The evidence here does not disclose how many of the members of the applicant are people with disabilities or who live in the Hervey Bay region, or both. It is quite possible - indeed likely given that the applicant contends that the majority of its members have an interest associated with the actions of the respondent - that some of its members are neither disabled nor live in the Hervey Bay region.
61 The decision in Manuka [1998] ACTSC 86 may be further contrasted with, for example, Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc [2006] SASC 114 where Debelle J held that an association of 45 residents in the Whyalla area concerned with environmental issues involving the steel works operated by Onesteel [2006] SASC 114 was nonetheless not a “person interested” for the purposes of the relevant legislation because:
It is unable to point to any physical injury or harm. It has no property which is affected by the subject matter of the application. It has no interests of its own which might be affected other than indirectly through those of its members who might be affected. The evidence does not disclose how many of its members are affected. All that is known is that some of its members live, work or own property affected by dust from OneSteel’s plant. One possible corollary is that some of its members may not be affected at all. (at [30])
62 Notwithstanding the different term in consideration in Manuka [1998] ACTSC 86 the language used by his Honour appears to be precisely applicable in the case before me.
63 Further, although of somewhat debatable significance (note comments of Lockhart J in Right to Life 56 FCR at 253), unlike in the North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 and National Trust of Australia (Vic) [1976] VR 592, there is no evidence before me that the applicant in this case is considered to be a peak body representing the interests of the disabled in the Hervey Bay region of Queensland, or that the applicant has been recognised by government as a body representing the concerns of the disabled in the Hervey Bay region of Queensland or had participated in official government decision-making processes. Further, while I note from correspondence attached to the affidavit of Mr Robin Andrew King sworn 8 November 2005 that the respondent has acknowledged the applicant’s interest in bus shelter infrastructure in the region and sought the input of the applicant and its members (annexure RK 3), and that the Disability Standards require, inter alia, that a provider must consult with “passengers with disabilities who use their service, or with organisations representing people with disabilities, about any proposal for equivalent access” (cl 33.2 Disability Standards), it is difficult to characterise the conduct of the respondent as being anything more than a willingness to consult an organisation which was willing to provide information. In this sense, a comparison may be drawn with the consultation with the Foundation in Australian Conservation Foundation 146 CLR 493. Accordingly, I do not find comparisons with North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 or the National Trust of Australia (Vic) [1976] VR 592 cases of assistance in these proceedings.
64 Finally, I have been directed to no aspects of the relevant legislation which support an interpretation that an entity such as the applicant would be a “person aggrieved”. Indeed, it is arguable that the reference by s 46PB HREOC Act to representative proceedings in human rights matters provides a framework such that matters of this nature should be brought as representative proceedings rather than under the aegis of an association incorporated to give voice to relevant concerns.
Conclusion
65 In Tooheys Ltd v Minister for Business and Consumer Affairs 54 FLR at 437 Ellicott J said:
The question whether an applicant is a person aggrieved is one of mixed law and fact and in many cases would best be determined at a final hearing when all the facts are before the court and the court has the benefit of a full argument on the matter.
66 However in this case the application currently before me specifically sought orders as to the standing of the applicant. Further, the applicant has not disputed the appropriateness of a determination of whether it is aggrieved in the context of the substantive proceedings. Indeed, the parties had the opportunity to put their cases on affidavit, and opportunity over the course of a hearing over one day to make their submissions. To adopt the language of de Jersey J in Speleological Society [1989] 2 Qd R at 535, there appears to be:
no particular deficiency in the manner of the presentation of the evidence going to standing... There is, in short, no reason for thinking that given more time the (applicant) would mount a case on standing significantly different...
67 I am mindful of the warnings given in such cases as General Steel Industries 112 CLR 125 and Dey v Victorian Railways Commissioners 78 CLR 62in relation to the power of the Court to dismiss an application summarily, and that it should be exercised with great caution. I am satisfied however in this case that it is appropriate to grant the orders sought by the respondents in the application currently before me. Notwithstanding its intellectual and emotional concern in the subject matter of the proceedings, the interest of the applicant is no more than that of an ordinary member of the public; the applicant is not affected to an extent greater than an ordinary member of the public, nor would the applicant gain an advantage if successful nor suffer a disadvantage if unsuccessful. To adopt the language of Lockhart J in Right to Life 56 FCR at 68:
Wide and liberal though the laws of standing should be, the courts of this country have drawn the line of demarcation between an open system and the requirement of some form of interest in the subject matter of the proceeding other than a mere emotional attachment or intellectual pursuit or satisfaction.
68 Although there may very well be a real question to be determined, whether of fact or law, it is not a question upon which the applicant has standing to prosecute as a person aggrieved.
69 This decision does not however prevent the members of the applicant who may be aggrieved by the conduct of the respondent from bringing their own proceedings, or alternatively combining to bring representative proceedings. Indeed as I have already noted representative proceedings are contemplated by s 46PB HREOC Act and Pt IVA Federal Court of Australia Act 1976 (Cth).
Ground 2: No act of discrimination pleaded and lack of equivalent access not proven
70 Although in light of my decision it is strictly unnecessary to deal with the second limb of the respondent’s application, I make the following observations.
71 The respondent does not appear to claim that the applicant’s pleadings are deficient. Rather, the respondent has claimed that the applicant’s application should be dismissed because the applicant has failed to establish that in relation to conduct which constitutes an act of discrimination by the respondent, the respondent has not provided “equivalent access” in its provision of public transport as contemplated by the Disability Standards.
72 The conduct of the respondent of which complaint is made by the applicant relates to breach of the Disability Standards formulated pursuant to s 31 DD Act. The applicant pleads the breaches of the Disability Standards, and that this breach is unlawful pursuant to s 32 DD Act. An example of pleading is para 26 and para 27 of the statement of claim in relation to the Ariadne Street Bus Stop.
73 I do not accept the submission of the respondent that the applicant’s claim should be dismissed unless the applicant proves that the respondent has failed to provide equivalent access to an individual, who cannot negotiate the public transport infrastructure by reason of a failure of the respondent to comply with the Standards. In my view, as submitted by the applicant, the provisions in the Disability Standards as to equivalent access go to conduct which may be raised in defence of alleged failure of the respondent to comply with the Disability Standards. It is not appropriate to determine issues relevant to equivalent access in the absence of the evidence, a hearing, and consideration of a key issue relevant to this case, namely whether the conduct of the respondent has breached the DD Act. In my view, this issue is not relevant to the issue of standing, or whether the applicant is an aggrieved person for the purposes of the HREOC Act and the DD Act.
THE COURT ORDERS THAT:
1. The application filed by Access For All Alliance (Hervey Bay) Inc on 5 May 2005 be dismissed.
2. Access For All Alliance (Hervey Bay) Inc pay Hervey Bay City Council’s costs of and incidental to the application, to be taxed if not otherwise agreed.
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I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
Dated: 2 May 2007
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Counsel for the Applicant: |
K Eastman |
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Solicitor for the Applicant: |
Public Interest Advocacy Centre |
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Counsel for the Respondent: |
K Fleming QC and R Green |
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Solicitor for the Respondent: |
MacDonnells |
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As Amicus Curiae |
C Lenehan |
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As Amicus Curiae |
Acting Disability Discrimination Commissioner |
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Date of Hearing: |
5 September 2006 |
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Date of Judgment: |
2 May 2007 |
