Case: IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1
Outcome: considered
Some assistance on this question is to be gained from the obiter comments of Kenny J (with whom Hill and Finn JJ agreed) in the Full Court in this case. To begin with, however, it is important to note Kenny J's caveat at Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 at [52] : "The absence of findings of fact makes it very difficult indeed to provide any guidance to the parties on any substantive matter. An expression of opinion by this Court may be misleading because it is based on a misconception of the facts that are ultimately found ... With this in mind, only some very brief comments may be made about [the Federal Magistrate's] reasons in relation to the ['service'] question." Her Honour made those brief comments at [2005] FCAFC 163 ; 144 FCR 279 at [54] [55]: "[54] Section 4(1) provides an inclusive definition of services and that, amongst other things, unless the contrary intention appears, "services" includes "services of the kind provided by a government, a government authority or a local government body" (par (f)). As [the Federal Magistrate] recognised, on account of its remedial character, the DDA is to be generously construed and the word 'services' includes all matters which ordinarily fall within that notion: see IW v City of Perth at 11-12 per Brennan CJ and McHugh J; 22-23 per Dawson and Gaudron JJ; 27 per Toohey J; 39, 41-42 per Gummow J; and 69-70 per Kirby J. The identification of the 'service' at issue in any case is a question of fact for the trier of fact: see Waters at 361 per Mason CJ and Gaudron J, with whom Deane J relevantly agreed (382); 394 per Dawson and Toohey JJ; and 404-405 per McHugh J; and also Catholic Education Office at [12]-[13] per Tamberlin J and [102] per Sackville and Stone JJ. The question of whether an activity is a service for the purposes of s 24 of the DDA is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12-13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J. The Federal Magistrate erroneously relied on a distinction that he drew between the provision of services pursuant to a statutory discretion and "the situation ... where no discretionary element exists": see [17]. [55] In addition to the management and security of prisons, the purposes of the Corrections Act 1986 (Vic) include provision for the welfare of offenders. The custodial regime that governs prisoners under this Act is compatible with the provision of services to them: see, eg, s 47. Indeed, this proposition is fortified by the provisions of the [Prison Services] Agreement to which counsel for Mr Rainsford referred on the hearing of the appeal (see [21]). In discharging their statutory duties and functions and exercising their powers with respect to the management and security of prisons, the respondents were also providing services to prisoners. The fact that prisoners were unable to provide for themselves because of their imprisonment meant that they were dependent in all aspects of their daily living on the provision of services by the respondents. Although the provision of transport and accommodation would ordinarily constitute the provision of services, whether the acts relied on by Mr Rainsford will constitute services for the DDA will depend upon the findings of fact, which are yet to be made and, in particular, the identification of the acts that are said to constitute such services." 66 In IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1 the High Court considered the meaning of 'service' in the Equal Opportunity Act 1984 (WA), the provisions of which are for present purposes identical to those of the DDA. The case was a discrimination claim brought on behalf of an association of people with AIDS. They had sought and been refused planning approval from the City of Perth to build a drop-in centre for people affected by AIDS. They alleged that the decision to refuse the planning permit discriminated against the group on the basis that its members had AIDS. The majority of the High Court found against the association. 67 Brennan CJ and McHugh J said that a council considering planning approvals is not engaged in the provision of a service. They said, at IW 191 CLR at 11: "The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance'; 'the organised system of apparatus, appliances, employees, etc, for supplying some accommodation required by the public'; 'the supplying or the supplier of water, gas, or the like to the public'; and 'the duty or work of public servants'. But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop." Further on, at IW 191 CLR at 18, they said: "The process by which the Council considers applications for approvals is not in our view arguably describable as a service that it provides to applicants for planning approval. Rather it is a power to process applications for the protection and general benefit of the residents of the City." (Emphasis in original) 68 Dawson and Gaudron JJ took a somewhat different view. They began by noting, at IW 191 CLR at 23, that "'services', a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context". However, where Brennan CJ and McHugh J found that the Council did not provide a service, Dawson and Gaudron JJ held that there was a service, but that it needed to be properly identified. They identified the service as "the exercise of a discretion to grant or withhold planning approval", and when so identified it was apparent that the Council had not failed to provide a service. The Council had considered the application for planning approval and had exercised its discretion, albeit contrary to the wishes of the association. 69 Gummow J had a similar view to that of Dawson and Gaudron JJ, saying, at IW 191 CLR at 44, that: "There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions." Like Dawson and Gaudron JJ, Gummow J found that the Council had not refused to provide the relevant service, since it had considered the application and refused it. 70 Toohey J dissented on the services point. He agreed with Dawson and Gaudron JJ and Gummow J that the Council provided a service, but said that classifying the service as the consideration of applications for planning permits was too narrow. His Honour said at IW 191 CLR at 28: "If the service is seen as the consideration of the application and its disposition and if it appears that the Council refused the application on the ground of impairment, why is that not discrimination 'in the manner in which the first-mentioned person provides the other person with those ... services'? Consideration of an application is of itself hardly a service; it is the disposition of the application which either provides or refuses the service. In the manner of that refusal there may be discrimination." 71 Kirby J also dissented, concluding, at IW 191 CLR at 75 that "[t]he word 'service' is wide enough to sustain the appellant's submission." 72 The judgments in IW are clearly dependent on the particular fact situation of that case, but some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand, and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case. 73 Counsel for the State suggested that the touchstone for service should be whether the act involves helpful or beneficial activity: IW 191 CLR at 11 per Brennan CJ and McHugh J. I accept that this is a useful test, but in a qualified way. Most activities are helpful or beneficial to someone. That in itself does not make them services. The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs. There is little doubt that GSL provides a service to the State: there was in evidence parts of the Prison Services Agreement between the State and ACF and further evidence that ACF sub-contracted its obligations to GSL. Were it not for the decision of the Court of Appeal in Farah v Commissioner of Police of the Metropolis [1998] QB 65, I would have thought that the State, by maintaining a prison system, provides a service to the general public. However, in Farah , where the alleged discriminator was the police, it was held that assisting and protecting members of the public is a service but that pursuing, arresting and charging criminals is not. To my mind, the pursuit of criminals is so much a part of protecting the members of the public that a distinction between them is hard to justify, but I need not pursue this. These services for the benefit of the State or the general public are not to the point. The question in this case is whether the respondents provide a service to the relevant class to which Mr Rainsford belongs, namely prisoners. 83 For each of his two claims, that requirement or condition has been differently formulated. As the judgments in IW [1997] HCA 30 ; 191 CLR 1 demonstrate, the precise formulation of the requirement or condition is critical. For the transport claim, Mr Rainsford says that the requirement or condition was that he be transported between prisons without access to conditions which would have protected his back. For their part, the respondents say that there are two services and that the condition only relates to the second. The first service is the provision of regular scheduled transport available to all prisoners. The second is the provision of separate special transport in circumstances where the regular transport was unavailable or inappropriate. The condition (or at least one of them) attaching to this second service is that the prisoner first obtain a medical certificate demonstrating a need for particular special transport. 84 I do not think either Mr Rainsford or the respondents accurately states both the service and its condition. On the evidence it is not correct to say that prisoners were offered a transport service that did not allow them access to conditions relevant to any medical problems. On the contrary, the evidence established that there were alternative transport arrangements available to those prisoners who demonstrated a need for them. I therefore reject Mr Rainsford's formulation of the condition. The respondents' formulation artificially divides transport into two categories, one for the able-bodied travelling at times when the regular service is available, the other for those with special requirements or travelling when the regular service is unavailable. 85 In my view, if there is a service (which, for the reasons set out above, I reject) then it is appropriate to classify it broadly, so as to encompass prison transport generally. The relevant condition which attaches to the service is that a prisoner who for medical reasons is unfit to take the regular transport service must first obtain a medical certificate stating that alternative transport arrangements should be made.