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catallaxy in technical exile

Courts and policy

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My prediction last November that overseas students had little chance of achieving their goal of public transport concessions has had a setback. Yesterday the NSW Administrative Decisions Tribunal decided an anti-discrimination case in their favour. It found that they had been discriminated against on the basis of their nationality, ie Australian university students can have concessions (subject to other conditions), but not overseas students. Though anti-discrimination law has a defence of statutory authority, it was found not to apply in this case because the distinction between the two types of students wasn’t actually in the statute; it was the result of a Ministerial determination. According to the Tribunal,

The Minister cannot use his or her discretionary powers in the Transport Administration Act to circumvent the obligations placed upon service providers by the Anti-Discrimination Act.

I still think the stronger argument is against extending concessions to overseas students. They are reasoning by analogy (they are students, we are students, everyone should be treated the same) when they should be reasoning from first principles (concessions are to assist the Australian poor, and like other welfare benefits they are not available to non-Australians).

Though the legal reasoning in the case seems sound, the legislation the ADT has been required to interpret has taken it into areas where judicial and quasi-judicial bodies should not go. Though it is only deciding the case before it, and its order is only that the applicants give proper notice of the remedies they will seek (which inevitably will be equal treatment for all overseas students – anything else will just trigger endless copycat cases), it is in effect requiring that overseas students should receive concessions, and that to make up for the lost revenue other unspecified persons should receive less government support or pay more tax. These are the kinds of trade-offs that should be made through the democratic rather than judical process. The courts lack both competence and legitimacy in situations such as this.

Presumably in this case the NSW government will move to put the distinction between student types into statute and so avoid the outcomes that will otherwise flow from the ADT’s decision. But on a small scale, this decision is an example of the dangers of letting the courts decide policy questions, as would occur if we had a Bill of Rights.

Written by Admin

March 24, 2006 at 9:00 pm

Posted in Uncategorized

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