Case: Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349
Outcome: cited
Part of the error I have just referred to comes from a failure on the part of Mr Rainsford to articulate with precision what service he contends for. The importance of this exercise was stressed by the High Court in Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349. In that case, McHugh J said at 404 5: "the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, eg, the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as 'the public transport system'. If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, 'transportation of members of the public by trams' might identify the service with sufficient precision to enable the relevant issues to be resolved." 76 In his outline of submissions, Mr Rainsford identifies the relevant service as "prison management and control, including the control of cell accommodation and transport between prisons". In my view, such a wide identification of service is meaningless; it is, in effect, no more than "prison management and control". The two activities complained of by Mr Rainsford are, first, the transportation of prisoners between prisons and between a prison and court and, second, the accommodation of prisoners in cells within the prison system. This is the appropriate level of precision with which to identify the alleged services. So identified, I am of the view that neither constitutes a service for the purpose of the DDA. 77 At [74] I postulated what would have happened had no transport been available to prisoners. The question is entirely hypothetical since transport is an inherent part of incarceration. Prisoners on remand must attend court for their hearings. Prisoners in low-security prisons who are re-classified must be moved to higher-security prisons. The prison system simply could not function without prison transport. It is an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or almost no control. 82 The discrimination that the respondents are alleged to have engaged in is indirect discrimination as defined in s 6 of the DDA. In order to satisfy this definition Mr Rainsford must show that he was required to comply with a requirement or condition. In responding to the requirements that Mr Rainsford claims he was unable to comply with, the respondents raised a number of different arguments. One argument was that the alleged conditions were negative and that the DDA does not apply to a negative condition. Another argument was that the conditions in Mr Rainsford's case were no more than inherent in the relevant services and that the condition must be over and above the service: see Waters [1991] HCA 49 ; 173 CLR 349. In my view the question whether Mr Rainsford was required to comply with a requirement or condition can be disposed of without answering these submissions of the respondents. All that needs to be done is to correctly identify the service and the requirement and to apply these to Mr Rainsford's case. Once this is done, it is apparent that for neither claim can Mr Rainsford demonstrate that he was required to comply with a requirement or condition.