Law Society Journal 2008: When is performing a government function a service?

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An earlier version of this article was published in the NSW Law Society Journal in March 2008. The article has now been updated to include the decision of the Full Federal Court.

When is performing a government function a service?

By FRANCES SIMMONS

Frances Simmons is a lawyer at the Human Rights and Equal Opportunity Commission

What does performing a government function constitute a ‘service’ in the context of anti-discrimination law?

This question was considered in Rainsford v Victoria1where Sundberg J decided that the accommodation and transportation of prisoners were not ‘services’ for the purposes of the Disability Discrimination Act 1992 (Cth) (the DDA).

What constitutes a service?

Federal anti-discrimination laws prohibit discrimination in the provision of services. 2  The DDA defines services to include “services of the kind provided by a government, a government authority or a local government body”. 3

The question of what governmental activity will constitute a service was considered by the High Court in IW v City of Perth in the context of Perth City Council’s decision to reject an application for town planning approval for a centre for people with HIV.4

The members of the High Court took different approaches to the question of whether the Council was providing a service, and, if it was, how that service should be identified.5  However, they agreed that in some cases the performance of statutory duties may also amount to a ‘service’ to a particular individual.6

In subsequent cases, the Courts have held: 

• The provision of additional superannuation benefits under Retirement Benefits Regulations was a service;7
• A regulatory impact statement prepared by the Commonwealth Attorney-General for Cabinet in relation to a disability standard was not a service;8
• The alteration of a person’s sex on birth registration was a service.9

These cases show that the question of whether governmental activity amounts to a service will depend on the facts of the case and, in particular, whether the activity in question is beneficial.

Conferring benefits?

Whether the activities said to be services conferred benefits on the applicant was the critical issue in Rainsford.

Mr Rainsford alleged that the State of Victoria indirectly discriminated against him while he was prison in breach of s 24(1)(c) of the DDA. This section prohibits discrimination on the ground of disability “in the manner in which the goods and services are provided or facilities made available to the person”.

Mr Rainsford, who had injured his back before he was incarcerated, alleged that:

• The state of Victoria required him to travel in prison transportation vans for up to two hours without the opportunity the stretch and exercise his back.
• The state of Victoria placed him in a separation cell for nine days in conditions which aggravated his back injury.

Complex proceedings

In 2005 the Full Federal Court allowed an appeal against the decision of Raphael FM to dismiss Mr Rainsford’s application.10

In relation to the issue of whether the acts complained of amounted to services, Kenny J (with whom Hill and Finn JJ agreed) applied IW v City of Perth and found that that Federal Magistrate Raphael “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”.11

Her Honour continued:

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.12

Her Honour added that “[a]lthough the provision of transport and accommodation would ordinarily constitute the provision of services”, the question of whether the acts complained of by Mr Rainsford constituted services would depend on the findings of fact and the identification of the acts said to be services.

The Full Federal Court remitted the matter to the Federal Magistrates Court where it was transferred to the Federal Court and heard by Sundberg J. 

Findings

Sundberg J decided that the transportation of prisoners between prisons and the accommodation of prisoners in cells within the prison system where not ‘services’ or the ‘making available of a facility’ for the purposes of s 24(1)(c) of the DDA.13 

His Honour said that IW v City of Perth was authority for the following general propositions:

• not all government functions are services, although some undoubtedly are; and
• the way in which the service is identified is critical. 14

The question of whether a particular act constitutes a service will be a question of fact in each case.15

His Honour held that to establish that an act constitutes a service it is necessary to show that the act in question is helpful or beneficial to the class of persons to which the person alleging the discrimination belongs.

In this case, the correct question was whether the respondents provided a service for the benefit of the prisoners. The fact that maintaining a prison system provides a service for the benefit of general public was not the point.16

Sundberg J rejected Mr Rainsford’s submission that if a prisoner were not provided with a cell and transport he would have to survive in the elements and walk between prisons, observing that:

• If Mr Rainsford was not placed in the separation cell he would have remained in the general body of Port Phillip Prison which could “hardly be said to be beneficial”;17
• The lack of transport would be both helpful and unhelpful: prisoners would be unable to access medical facilities at other prisons but they would also be unable to be transported from court back to prison.18

His Honour added that speculating about what might happen if prisoners were denied accommodation or transport was “entirely hypothetical” because both of these activities were an “inherent part of incarceration”.19  The prison system could not function with transport or accommodation. Therefore, it was “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”.20

His Honour characterised the choice exercised by the Respondent in allocating prison cells as a “purely administrative and prison management matter” which did not, of itself, provide prisoners with a benefit.  The alleged services werebetter described as “part and parcel of the exercise of a statutory duty and can not be described as the provision of a service or services”.21

His Honour accepted that that certain facilities provided to prisoners may constitute ‘services’.22 However, he said that characterising the transport and accommodation of prisoners as services, “ignore[d] the fact that they are functions performed in order to comply with the sometimes competing obligations of prison management to its prisoners, its staff, the public and the good governance of the prison”.23

In case a contrary view was taken on the issues of services, Sundberg J also held that the acts Mr Rainsford complained of did not amount to indirect discrimination because there was no condition imposed on him that he could not reasonably comply with.24

Comment

Rainsford illustrates the importance of precisely identifying the activity said to constitute the service and demonstrating the activity provides a benefit to the person alleging discrimination.

Sundberg J’s comment that it is artificial to describe “a fundamental integer of a system over which those affected have no or almost no control” as a service25 is difficult to reconcile with the comments of Kenny J in the Full Federal Court’s decision to allow Mr Rainsford’s appeal.26 

Kenny J’s comments seem to support the view that the fact an act is a fundamental part of discharging a statutory duty to provide for people who are unable to provide for themselves should not, of itself, preclude a finding that the act is also a service.

The discharge of a statutory duty may meet obligations owed to the public and simultaneously provide a service to a particular individual.27 Given the remedial character of the DDA it is well-established that the word ‘services’ should receive a broad and purposive construction.28

The restrictive interpretation of services by Sundberg J may have particular implications for people who live under state control and who experience discrimination in the course of activities undertaken to discharge a statutory duty.

Appeal dismissed

In March 2008, an appeal against the decision of Sundberg J was dismissed by the Full Federal Court.

The Full Federal Court agreed with Sundberg J that there was no requirement or condition that Mr Rainsford accept transport or accommodation that did not cater for his disability. In addition, it was reasonable to require Mr Rainsford to obtain a medical certificate in order to use alternative transport and to take steps to demonstrate he was medically unfit for cell in which he placed. Therefore, the respondent’s conduct did not fall within the definition of indirect discrimination in s 6 of the DDA.29

Having dismissed the appeal on this basis, the Full Court considered it was unnecessary to decide whether Sundberg J erred in his interpretation of what constitutes a ‘service’.  However the Court noted that while the issue was not argued in depth, there was “some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility”.30

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