Case: Executive Council of Australian Jewry v Scully (1998) 79 FCR 537
Outcome: distinguished
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. 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] HCA 19 ; (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) 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 [1982] HCA 27 ; 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. 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.