State of Victoria v Macedonian Teachers Assn of Vic & Anor M105/1999 [2000] HCATrans 293 (26 May 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M105 of 1999

B e t w e e n -

STATE OF VICTORIA

Applicant

and

MACEDONIAN TEACHERS ASSOCIATION OF VICTORIA INC.

First Respondent

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

Second Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 26 MAY 2000, AT 9.33 AM

Copyright in the High Court of Australia

MR M.A. DREYFUS, QC: If it please the Court, I appear with my learned friend, MS M.J. RICHARDS, for the applicant. (instructed by the Victorian Government Solicitor)

MR W.B. ZICHY-WOINARSKI, QC: May it please the Court, I appear with my learned friend, MS D.S. MORTIMER, on behalf of the first-named respondent. (instructed by Erskine Rodan & Associates)

GLEESON CJ: Yes, Mr Dreyfus.

MR DREYFUS: If it please the Court, the issue here is the proper construction of the words "based on" in section 9(1) of the Racial Discrimination Act 1975 . It is, your Honours - - -

GLEESON CJ: Where do we most conveniently find the statutory provisions?

MR DREYFUS: It is set out in a number of places in the application book but it appears first at page 3 of the application book, which is in the reasons for decision of the hearing Commissioner, Sir Ronald Wilson.

GLEESON CJ: Thank you.

MR DREYFUS: Your Honours will see that it is a core provision of what we would submit is an important piece of national legislation and it is a decision on which there are now inconsistent decisions of intermediate appellate courts. We submit, your Honours, that the case is a suitable vehicle to examine the construction of these words "based on", which your Honours will see there in the second line of the - - -

HAYNE J: Why is that so, given that there seems to have been no debate before the hearing Commissioner or before any of the courts about the question of "purpose or effect of nullifying" et cetera? You never see the end element of the section considered anywhere, do you?

MR DREYFUS: That is so and it is because it was conducted on the basis that a threshold point or a threshold question in considering the section was these opening lines and, again, perhaps one could say, in answer to your Honour Justice Hayne's question, that it demonstrates the need for the question of how this section is to be construed to be settled.

HAYNE J: But it then becomes, does it not, if I say "academic exercise", that is the wrong flavour, but you have got three parts to the section "act involving a distinction" et cetera "based on.....purpose or effect". Now, how can you take out the "based on" question and say, "Well, let us focus on that and put it into the box marked `causative' or the box marked something else"? It seems to me to be an unreal dispute or unreal way of treating the dispute, rather.

MR DREYFUS: We can only say in answer to that question, your Honour, that that is the way in which both the Full Court of the Supreme Court of South Australia approached the question in the case that has been referred to in these decisions as the Hindmarsh Case and also how it was approached by another bench of the Full Federal Court in the Australian Medical Council v Wilson. It may well be, and this might emerge in fuller argument, that your Honour Justice Hayne is correct to say that all of these decisions have approached the construction of the provision in the wrong manner, but nevertheless we would repeat, your Honours, that this is, because the operation of section 9 was central to this decision, an appropriate vehicle within which the construction of the section should be considered.

GLEESON CJ: What stage has this dispute reached now, Mr Dreyfus? Is it to go back to the Commission to resolve the issues that arise out of the application of the remainder of the section?

MR DREYFUS: Yes, your Honour. The effect of the decision of both his Honour Justice Weinberg and the Full Federal Court is that the matter is to be returned to the Human Rights and Equal Opportunity Commission for reconsideration in accordance with the reasons and construction of the section that has been provided by his Honour Justice Weinberg.

GLEESON CJ: One of the problems with threshold points is that from the point of view of an appellate court they can produce what looks like an artificially truncated issue.

MR DREYFUS: We would accept what your Honour the Chief Justice has said but the question was fully considered by the hearing Commissioner, Sir Ronald Wilson, after consideration of all of the evidence and a full hearing. It is the fact that Sir Ronald Wilson determined the matter on the basis of what can be seen as a threshold question but it nevertheless was after a full hearing. Your Honours do not have in the application book all of the material that I am instructed was before the Full Federal Court but that consisted, as might be apparent from the judgment of his Honour Justice Weinberg, of transcript and other material that was before Sir Ronald Wilson - - -

HAYNE J: Do you in the end seek to support the construction of the Act adopted by the hearing Commissioner?

MR DREYFUS: Yes.

HAYNE J: That is a causative relationship?

MR DREYFUS: We would say that to describe the construction adopted by the hearing Commissioner as a causative relationship is to an extent an oversimplification, that the words used by the hearing Commissioner were following on, in effect, this Court's decision in Banovic which is, under the Sex Discrimination Act, the true basis and that is the way in which Sir Ronald Wilson proceeded, that form of words, "the true basis", was also the way in which the Full Court of the Supreme Court of South Australia approached the matter, which is not strictly to say it needed to be causative. Perhaps I am to an extent splitting hairs.

HAYNE J: Well, because the next question is, if causative, what are the two elements in the relationship of causation? What is causing what? Because I cannot get that out of the Act at the moment.

MR DREYFUS: We would prefer to say, your Honours, that it is not strictly - although his Honour Justice Weinberg approached the hearing Commissioner's decision as if it were a requirement that it be causative, to use your Honour's phrase, the better way to look at it is that it is the true basis or material factor, looked at another way, that it provides - - -

HAYNE J: But the whole subject matter of this direction was national or ethnic origin, was it not?

MR DREYFUS: Yes.

HAYNE J: That was the subject matter under debate. It seems to me that if that is so, the act, if the act relevantly is the letter, where its subject matter is national or ethnic origin is necessarily "based on" and the real killing ground of the case lies in "the purpose or effect".

MR DREYFUS: That is, of course, the distinction and the same problem, if you like, that was focussed on in the Hindmarsh Case because the subject matter there was Aboriginal culture and it is apparent from the judgment of his Honour Chief Justice Doyle, that it was acknowledged by all parties there that the subject matter was Aboriginal culture and that it only affected members of the Aboriginal race, but nevertheless that was not the complete answer to the question.

It is not enough, we would say, that the subject matter of the Premier's direction, which is the subject matter of this case, is something affecting a particular national group or people of a particular descent. It is necessary to go further and look at, to use the phrase in Banovic, what was the true basis. So it does not stop, we would submit, your Honours, with the question of what was the subject matter of the letter or the directive.

Now, we do say to your Honours that there are directly conflicting decisions, not only this decision that I have mentioned of the Supreme Court of South Australia in the Hindmarsh Case, but the decision of the Full Federal Court in the Australian Medical Council v Wilson where his Honour Justice Heerey expressly agreed with the reasoning and the construction adopted by Chief Justice Doyle. His Honour Chief Justice Black agreed on that issue and the other member of that particular full Federal Court, his Honour Justice Sackville, effectively agreed with that method of construction, although his Honour did not specifically refer to the Hindmarsh Case.

If I could perhaps take your Honours to that decision, that is the decision of the Full Federal Court in the Australian Medical Council v Wilson (1996) 68 FCR 46 and in particular your Honours will see at page 58 in the judgment of his Honour Justice Heerey a specific adoption of the analysis of his Honour Chief Justice Doyle in the South Australian decision. Your Honours will see there at paragraph D on page 58 the relevant paragraph from the decision of Chief Justice Doyle set out and an agreement by Justice Heerey with that approach. As I have said to your Honours, Chief Justice Black agreed and his Honour Justice Sackville at page 74 reached a similar construction of the Act.

GLEESON CJ: Could you summarise the point of departure between the construction you place on the Act and that of your opponents?

MR DREYFUS: Yes. The respondent urges that the way in which this is to be construed is simply that the Act needs to be "by reference to". That is the distinction that is drawn between "by reference to" or the construction favoured in these other decisions which I have taken the Court to, it being "the true basis or a material factor". Another distinction is the difference between "by reason of", which is the construction we would favour, and simply "by reference to", which is the construction urged by the respondent.

GLEESON CJ: Take a case that is very close to the present case. Suppose some person in authority said to administrative officers in a department, "In order to avoid confusion it will be convenient to distinguish whenever you are referring to Macedonian people between Macedonian people from the former Yugoslav Republic and what I might call Hellenic Macedonian people. It does not matter how you distinguish them, but just make sure you distinguish them so that somebody reading a departmental communication will be under no doubt as to which you are referring to." That is a distinction by reference to ethnic origin, is it not?

MR DREYFUS: Yes, it is.

GLEESON CJ: Is it not also a distinction by reason of ethnic origin? It is the differing ethnic origins that create the confusion that you are trying to avoid.

MR DREYFUS: We would say to your Honours, to not immediately directly your Honour's question, that the construction urged, that the construction urged by the respondents is one which says - and, indeed, this was the conclusion reached by Justice Weinberg - ignore the motive entirely and - - -

GLEESON CJ: In the example I gave you the motive is departmental convenience.

MR DREYFUS: Well, the first part of the example that your Honour gave a moment ago was to avoid confusion - - -

GLEESON CJ: Yes, confusion creates inconvenience for administrators.

MR DREYFUS: - - - and so it is confusion to administrators which is to be avoided. We would say that that would be a matter to be taken into account by the Human Rights and Equal Opportunity Commission or any court in considering whether or not section 9 was infringed. The respondents would say - - -

HAYNE J: But at what level of that section 9 inquiry? At the level of "based on" or at some other level?

MR DREYFUS: At the level of "based on".

GLEESON CJ: Well, a possible point of view is that if a fuss arose about a direction of the kind that I have just described, the way to resolve it would to be look at the concluding words of section 9(1).

MR DREYFUS: It might be, but we would say, your Honours, that it does not get to that. If the court in applying the section looks, first, at the whole of the circumstances in which the particular act was committed and concludes, as we say is an appropriate manner to proceed, that the true basis of the act was not simply an act by reference, that the true basis was some other purpose other than the making of this distinction.

GLEESON CJ: Another possible point of view is that the presence in section 9(1) of what I might call the second half of the provision is a reason for giving the first half a fairly neutral operation. I mean by that that there is only a contravention of the legislation if something has "the purpose or effect of nullifying" human rights et cetera.

MR DREYFUS: And that, of course, has to be accepted because there is specific reference, as your Honour the Chief Justice is pointing out, to "purpose or effect" in that second part of the provision, but we would say nevertheless to construe the words "based on" as if they meant simply "by reference to" some kind of general connection, which is the construction favoured by his Honour Justice Weinberg and the construction that is urged by the respondents, is to take the ordinary meaning out of these words, that "based on", as is made clear in these intermediate appellate decisions to which I have referred, should be given a meaning that goes to it being a foundation for or somehow the true basis of the particular decision. We do say to your Honours that the respondents' contention, which is squarely expressed in their summary, which suggests - perhaps it is worth taking your Honour to the way in which that is put - - -

HAYNE J: Just before you do, how is this coming up? It is coming from the hearing Commissioner to the Federal Court.

MR DREYFUS: Yes.

HAYNE J: What is the question before the Federal Court, error of law?

MR DREYFUS: Yes. It came before the Federal Court by the Administrative Decisions (Judicial Review) Act and what the - - -

HAYNE J: And relevantly for error of law?

MR DREYFUS: Relevantly the error of law was to identify - it was alleged that the error of law made by the hearing Commissioner was that he had misconstrued the relevant provision of the legislation. His Honour Justice Weinberg found in favour of the respondents, who had been unsuccessful before the hearing Commissioner, found in their favour that, yes, Sir Ronald Wilson had made an error of law in construing the statute. It then went to the Full Federal Court on appeal from Justice Weinberg on the same point. There is, of - - -

HAYNE J: But it is, therefore, enough for you, I take it, to say, "Full Court and trial judge wrong to find any error of law in the construction."?

MR DREYFUS: Yes.

HAYNE J: You have got to go that far.

MR DREYFUS: Yes.

HAYNE J: Yes.

MR DREYFUS: And, indeed, that the construction adopted by the hearing Commissioner was correct. There is, of course, as your Honours would have seen, a second ground that is sought to be raised which is a debate concerning the proper application of the test in Briginshaw to matters of this nature. We do not propose to say anything about that, your Honours, other than to say that it stands or falls with the first ground because it is necessarily dependent upon whether or not the construction is one which permits an examination of intention or motive or purpose at this level of "based on", and that is the approach adopted by Sir Ronald Wilson.

If it permits such an examination of the purpose, then Briginshaw will be something that may be relevant, depending on the particular case. If, on the other hand, the construction that has been adopted by Justice Weinberg and approved by this particular Full Federal Court is correct, then it can be accepted that the Briginshaw question will never arise.

The final point we wish to make was the one to point out to your Honours that the construction which is directly put in the respondents' summary at application book 99 that "it is irrelevant to consider the motive, motivation or intent of the alleged discriminator", that is at line 7. A range of authority is there cited, including some of the cases to which I have referred. We say that they do not go so far as to say that motive is completely irrelevant, which is the position adopted by Justice Weinberg and favoured by the - - -

GLEESON CJ: Well, suppose the motivation of the discriminator is personal convenience. Does that produce the result that the section cannot apply?

MR DREYFUS: It is perhaps a little bit difficult to answer it completely in a vacuum, your Honours, but we would say that it may be, depending on the conclusion that was reached about the true basis of the decision, yes, but if it was merely personal convenience, that the section would not apply.

GLEESON CJ: So that if an administrator for personal convenience puts up a sign saying, "Black people go through the left door and white people go through the right door. My reason for doing that is because it suits me as a matter of personal convenience to sort them out that way," there is no problem?

MR DREYFUS: To take that approach would be to say that the court would accept the stated reason and - - -

GLEESON CJ: Yes, that would just be an issue of fact.

MR DREYFUS: Yes, and it is always a question of fact. That is one of the conclusions reached by the hearing Commissioner, that it is a question of fact, and your Honour has there given an example that might be the stated reason given by the particular bureaucrat for taking a particular act but it would not be necessary for the court to accept that reason. It would examine, nevertheless, what the true basis was and because your Honour has used an extreme example it could readily be seen that that stated reason would not be accepted. The true basis would be said to be something else.

GLEESON CJ: Thank you.

MR DREYFUS: If your Honours please.

GLEESON CJ: Yes, Mr Zichy-Woinarski.

MR ZICHY-WOINARSKI: If the Court pleases. Your Honours, may we just at the very outset correct something that has fallen from our learned friend. Our position is not that the Act is based upon race, et cetera. Our position is that there is an Act which involves a distinction and the distinction is that which is "based on race" et cetera and that is, your Honours, highlighted or the point is made in our outline submission in paragraph 10 at page 100 of the application book where we say that:

The Full Court and Justice Weinberg were correct to find that a proper construction of s.9(1) of the Act required the Commissioner to inquire into whether the distinction imposed by the directive in the treatment of the Macedonian language was made "by reference to" -

et cetera, "reference to" being synonymous for our purposes with the words "based on".

Now, it is because of that, your Honours, which in part we say the vehicle which is currently before the Court is not an appropriate vehicle for the questions which it is sought to agitate. We say that initially for the obvious reason that is set out in our summary, that we say the decision of both the Full Court and Justice Weinberg with respect to the interpretation of section 9(1) is correct and certainly not affected with sufficient doubt.

GLEESON CJ: On your construction of the Act do those signs at the airport that say "Australian nationals line up in that queue and everybody else line up in another queue" involve a distinction based on national origin?

MR ZICHY-WOINARSKI: Your Honour, they would involve a distinction based on national origin but then one has to go on, as Justice Hayne has correctly said, to determine what follows from that distinction, whether there is a "purpose or effect" et cetera in accordance with the rest of the Act and - - -

GLEESON CJ: I understand that, but your construction of what might be called the first part of section 9(1) is that to do anything that involves a distinction by reference to "race, colour, descent or national or ethnic origin" brings you within that part of the provision.

MR ZICHY-WOINARSKI: To start off with, yes, your Honour, and, your Honour - - -

GLEESON CJ: And so the real battleground in most cases will be the concluding part of the subsection.

MR ZICHY-WOINARSKI: We believe that is so, your Honour, yes, and, of course, that is something that has never been even - it has been agitated before the Commissioner but the Commissioner never agitated it in his own mind, with respect to him, because what he did was to say that there was a threshold question, so to speak, which can be seen at page 7 of the application book, and the threshold question was - it starts at the very bottom of his decision. If you go to the very last line you will see he says:

one element in particular bears the burden of decision, although of course other considerations may remain for decision depending on the answer to the first issue. That element is whether the directive was "based on race, colour, descent or national or ethnic origin".

So what the Commissioner did was, despite all the evidence that had been agitated before him, he determined this simply on the basis was the directive, which we say is the act, "based on race, colour" et cetera. We say the Full Court and Justice Weinberg are correct in saying, firstly, it is not the directive; it is the distinction which is involved in that directive which has to be looked at.

GLEESON CJ: Well, take what Chief Justice Doyle said on page 8, applying it to the present case:

The inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act.

Well, the relevant act was performed because there is a racial distinction, was it not, in the present case?

MR ZICHY-WOINARSKI: We would say, yes, your Honour. We would say, yes, but the - - -

GLEESON CJ: The objective of the relevant act, as I understand it - correct me if I am wrong - was to recognise and accommodate in a certain respect the racial distinction.

MR ZICHY-WOINARSKI: The act, which was the directive, was done, as the Commissioner found, to restore peace and harmony in the community. The manner in which that intention or motive was carried out is the act which has to be looked at and the way in which it was done involved racial distinction.

GLEESON CJ: If the purpose in the sense that you have just mentioned is the test, why would it make a difference whether the act was done to restore peace and harmony or for the personal convenience of the administrator?

MR ZICHY-WOINARSKI: We say there is no difference, your Honour. We say there is no difference.

GLEESON CJ: It is not unlawful to suit your own convenience.

MR ZICHY-WOINARSKI: I follow that, your Honour. It is the purpose or effect that flows from your own convenience which the Act is dealing with.

HAYNE J: If we accede to these submissions, are we thereby choosing between conflicting decisions? Do you accept that there are conflicting decisions at intermediate level?

MR ZICHY-WOINARSKI: Your Honour, with respect, we say that is not so. Your Honours have been taken to Australian Medical Council v Wilson. Chief Justice Black concurred with the reasons - he said, "I agree generally with" the reasons of Justice Heerey. That is to be found at page 47. Then if one goes to the decision of Justice Heerey - your Honours were taken to a passage on page 58 opposite D, so if I could just ask your Honours to go there and your Honours will see there is a "Section 9(1) - "acted . . . based on" and Justice Heerey then quoted from Chief Justice Doyle's decision, but a little bit further on after that he says:

I respectfully with that approach. The application of the statutory criterion largely involves questions of fact,

And he refers to the Mt Isa Mines Case and then just after that, about three lines down, just above G, he says:

I agree generally with what Sackville J has written as to s 9(1) and its application to the present case.

And if one then goes to page 74, one sees what Justice Sackville had to say in that case and on page 74 at D, if your Honours could go to D at page 74, your Honours will see that Justice Sackville said:

the preponderance of opinion favours the view that s 9(1) does not require an intention or motive to engage in what can be described as discriminatory conduct.

And there is a reference to what the then Chief Justice Mason and Justice Gaudron had to say in Waters.

GLEESON CJ: Well, that must be right, must it not? You can engage in discriminatory conduct simply because you are an extremely insensitive person, not because you are intending to hurt anybody's feelings.

MR ZICHY-WOINARSKI: Certainly, your Honour, but what we say is that the preponderance of opinion - what we say is that quite clearly what is being said there is that motive or intention is not what has to be looked at to see whether the distinction is "based on" or, to use even the argument which the applicant is making, the act is "based on". So to answer the question, your Honours, we would say that there is not conflicting decisions in the way in which our learned friends have submitted to the Court.

CALLINAN J: Is Article 5 of the Convention anywhere in the application book?

MR ZICHY-WOINARSKI: Article?

CALLINAN J: Article 5 of the Convention. Is that in the application book?

MR ZICHY-WOINARSKI: Your Honour, off the top of my head I cannot answer that question. Page 14 of the application book, is it? Thank you. Thank you very much. Yes, Article 5 is at page 14 of the application book, your Honour. Your Honours will, of course, be aware that the effective words in section 9(1) from "distinction, exclusion" et cetera are a direct quote from the Convention itself and that point is made very clear by Justice Weinberg. The words have been effectively lifted from Article 1.1 of the Convention.

Now, your Honours, just getting back, we say that what the applicant is seeking to agitate are questions about whether the act was "based on", which is not what the Racial Discrimination Act is, in fact, about. We say it is, as we have said, a distinction "based on race" et cetera and "the purpose or effect", and obviously the effect in many cases will be more important and more relevant than the effect, and so for those reasons we also say that this is not an appropriate vehicle.

Your Honours, we will not repeat ourselves so far as our view of the distinction and what we have had to say about that is concerned, but if I can just turn to the Briginshaw point. The Briginshaw point, with respect to our learned friends, we say does not fall or survive with the first aspect, the section 9(1) aspect, because, in our submission, what the Full Court had to say about the Briginshaw principle is applicable whether or not this Court were to find that our learned friend's argument with respect to the words "based on" was correct or not. We still say that a finding that a government has breached the Racial Discrimination Act or has contravened the Racial Discrimination Act is not one which requires the application of the Briginshaw principle for its determination.

CALLINAN J: I was just looking at section 9(1) and comparing it with Article 1.1 at page 15 and in 9(1), the Act, on one view, seems to be written in a deliberately narrower way perhaps than Article 1.1.

MR ZICHY-WOINARSKI: Does your Honour mean by that the fact that Article 1.1 is a definitive term whereas section 9(1) makes it "unlawful for a person to do any act" then as defined?

CALLINAN J: Well, the Article says "shall mean any distinction.....based on". The subsection says "any act involving a distinction based on". It just seems to have been a deliberate choice to use somewhat different language. It may not be significant. I do not know.

MR ZICHY-WOINARSKI: Well, your Honour, however it is done, once there - I am sorry, I will rephrase that. At some stage one has to connect the conduct which is being sought to be prevented to an act or some conduct and you have to describe that act by way of conduct. What the statute does is to refer to the conduct as being "an act" and that that act is to involve - you are not to do an act which involves discrimination as defined and which is taken directly from Article 1.1. It is our submission, your Honour, that the way in which it is done has no significance at all.

The other matter which, if we could just mention briefly, your Honour, before we sit down, is that the other thing that does need to be considered is that section 9(1), which, of course, has the words "based on", section 9 has had included into it the indirect discrimination section, section (1A) and that picks up both the words "an act involving a distinction based on, or an act done by reason of", which, in our submission, as was identified by Justice Weinberg, is another good reason for not coming to the view, as is effectively being argued by the applicant, that the words "by reason of" have the same meaning and are intended to have the same meaning as the words "based on" because it is quite clear that both terms, "by reason of" and "based on", have been used separately in section 9(1A). If the Court pleases.

GLEESON CJ: Thank you. Yes, Mr Dreyfus.

MR DREYFUS: We would say, your Honours, that the arguments that have been advanced as to the construction and the reference to authority that our learned friends have made demonstrates the unsatisfactory position of authority on this question of construction at present.

HAYNE J: But does it demonstrate the hearing Commissioner made no error of law? That is the point you have got to get to, have you not? You can point to conflicting authority, but you have to say, "The hearing Commissioner made no error of law."

MR DREYFUS: And we do say that, your Honours, that the hearing Commissioner made no error of law, but what is put forward now and what has fallen from our learned friends is, to use the precise words, that motive or intention is not what has to be looked at and our learned friend went to the passage in the judgment of his Honour Justice Sackville, which is not what is said there. What his Honour is, in fact, saying, and it is consistent with a decision of this Court in IW v City of Perth, is that, in effect, intention is not a necessary component but may be relevant in considering this question of whether or not the act is "based on" the relevant distinctions. His Honour Justice Sackville is not there saying, as is now contended for by the respondent, that motive or intention is entirely irrelevant and - - -

GLEESON CJ: Just putting intention to one side, what do you say is the relevance of motive?

MR DREYFUS: That it may be something which can be taken into account in considering the true basis of the act. It will not be - - -

GLEESON CJ: In the expression "the true basis", does the adjective "true" add anything to the noun "basis"?

MR DREYFUS: We would say, yes, your Honour, to draw a distinction between perhaps what might have been put forward as the basis by the alleged discriminator as distinct from what was actually the basis and that is what the qualifier, we say, does, but not more. The single other piece of authority to which I would wish to take the Court is the decision of this Court in IW v City of Perth, just dealing with this point of whether or not intention or motive is relevant and it is directly contrary, we would say, to the construction that is being urged by the respondent.

The particular passage to which we would take the Court is at page 59 in the judgment of his Honour Justice Kirby where, at the paragraph 4, his Honour - and, of course, it is appreciated this is dealing with the Equal Opportunity Act and the particular phrase is "on the ground of" but very many of these anti-discrimination statutes use that phrase rather than "based on" - what his Honour there said was:

it is unsurprising that the weight of authority supports the proposition that it is unnecessary for the complainant to show that the alleged discriminator intended to discriminate or set out with that motivation and purpose. Some doubts have been expressed concerning this opinion -

and his Honour referred to Waters, a judgment of his Honour Justice McHugh -

Certainly, where the alleged discriminator is shown to have been actuated by a deliberate discriminatory purpose, that fact, if proved, will make the breach of the statute easier to establish -

His Honour said, and this is the point that has been raised in argument -

But much discrimination occurs unconsciously, thoughtlessly or ignorantly. It would subvert the achievement of the purposes of the Act if it were necessary for a complainant to establish that the alleged discriminator intended, or had the motive, to discriminate. All that need be shown is that the alleged discriminator has acted "on the ground of" (s 66K of the Act), relevantly, impairment. That involves an objective characterisation of the discriminator's "ground" for its conduct, for which subjective intention may be relevant but is not decisive.

That is quite contrary to the position that was adopted by his Honour Justice Weinberg and approved by the Full Court and is urged now by the respondent, that - - -

HAYNE J: But is that opinion of his Honour there an opinion shared by a majority of the members of the Court in IW? I notice his Honour dissented in the result.

MR DREYFUS: His Honour dissented in the result and that because his Honour had approached the case in an entirely different manner - I refer the Court to it because it is, we would say, a correct statement of the place that consideration of intention is to take in this kind of anti-discrimination legislation and it is consistent with his Honour Justice Sackville's analysis which says that intention is not necessary but may be relevant.

GLEESON CJ: Could I use a more neutral term than has been used so far. If you used the expression "differentiate" instead of "discriminate", the intention of the directive in the present case was to differentiate, was it not?

MR DREYFUS: Yes, it was. It was to provide a means of differentiating a particular language.

GLEESON CJ: So this is a case about motive rather than intention, is it not?

MR DREYFUS: Which may perhaps be the same in some circumstances, your Honour, but it is accepted that they are different concepts but can be the same.

GLEESON CJ: Yes, thank you, Mr Dreyfus.

MR DREYFUS: If the Court pleases.

GLEESON CJ: We will adjourn for a short time to consider the course we will take in this matter.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.19 AM:

GLEESON CJ: Having regard to the course that the proceedings in this matter have taken to date, the Court considers that the present is not a suitable vehicle for considering the questions of construction of subsection (1) of section 9 of the Act which are sought to be agitated. The application for special leave to appeal is refused.

Can you resist an order for costs, Mr Dreyfus?

MR DREYFUS: No, your Honour.

GLEESON CJ: The application is refused with costs.

AT 10.21 AM THE MATTER WAS CONCLUDED