Case: Waters and Others v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349
Outcome: cited
To succeed in establishing a claim under s 9(1A) of the RDA that there was an act involving a distinction based on, or done by reason of, her race, colour, decent or national or ethnic origin, Ms Obieta must establish that a term, condition or requirement that was not reasonable in the circumstances was imposed upon her (see s 9(1A)(a)). As was held by McHugh J in Waters and Others v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 406 in reference to a similar provision in Victorian anti-discrimination legislation (see s 17(5)(a) Equal Opportunity Act 1984 (Vic)), such term, condition or requirement would need to be identified with precision. 216 Further, under s 9(1A)(b) Ms Obieta must established that she does not or cannot comply with the term, condition or requirement and under s 9(1A)(c), that the requirement has the purpose or effect of interfering with the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as Ms Obieta, of any relevant human right or fundamental freedom. 217 Section 10 of the RDA relevantly provides for a right of equality before the law and that the laws of the Commonwealth, States and Territories are to apply generally to all people regardless of their race, colour, national or ethnic origin. Ms Obieta must show that under a particular law, she does not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or that she enjoys that right to a more limited extent. Once this has been established then notwithstanding the particular law in question, by force of this section, she is entitled to enjoy the right to the same extent as persons of another race, colour or national or ethnic origin. 225 The question of causation that arises in the application of s 18C(1)(a) has been considered in numerous cases. In Purvis v New South Wales (Department of Education and Training) and Another [2003] HCA 62 ; (2003) 202 ALR 133 at 138 the High Court explained per Gleeson CJ, at 171-2 per McHugh and Kirby JJ, at 187 per Gummow, Hayne and Heydon JJ, that the accepted test for causation in the context of anti-discrimination legislation focuses on the 'genuine basis' or 'the true basis' or 'real reason' for the act of the alleged discriminator. The question of causation was also considered in Bropho 135 FCR at [71] wherein French J referred to the description by Kiefel J in Creek v Cairns Post 112 FCR at [28] of the key causation issue as 'whether anything suggests race as a factor' in the act in question. Kiefel J at [23] adopted the approach to the construction of statutory provisions similar to s 9 of the RDA taken by McHugh J in Waters 173 CLR at 401. 227 In Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 at [31] Carr J agreed with the adoption by Kiefel J of the approach taken by McHugh J in Waters 173 CLR. At 31 Carr J said: 'The authorities on the issue of causation in the context of the discrimination legislation were reviewed by Kiefel J in Cairns Post at [19]-[27]. It seems clear from what her Honour said at [22] that she regarded the assessment of a reason as being an objective one, but not one which excluded any evidence of the relevant person's intention or motive. Regard was to be had to all the circumstances. I respectfully agree with that approach.'