Legal Outcomes
Commonwealth
HREOC Conciliations
- Difficult Access to Dental Surgery
- Inaccessible Artistic Venue
- Less Favourable Treatment in a Hotel
- No Accessible Toilets at Railway Station
- Unsatisfactory Sanitary Accommodation in Gymnasium
- Inaccessible Motel Accommodation
- After-hours Inaccessibility of Bank ATM
- Inaccessible Post Offices
- Inaccessible Showers in Swimming Centre
- Inaccessible Lift Call Buttons in Shopping Centre
- Restricted Seating at Adelaide Entertainment Centre
Agreements Prior to HREOC Determinations
- Shopping Centre Access Negotiated
- Agreement to halt building plans to make way for access revisions
HREOC Hearings
- Lack of Access to Telstra Telephone Service:Scott vs Telstra
- Guide Dogs in Restaurants: Jennnings vs Lee
- Venue for Employment Interview
- Inaccessibility of Cinema: Cooper and Others vs Holiday Coast Cinema Centres, 1997
- Cigarette Smoke in Nightclub: Francey and Meeuwissen vs Hilton Hotels of Aust. Pty Ltd
- Application by a Business for Exemption from Lift Installation
- Exclusion from Graduation Ceremony: Kinsella vs Queensland University of Technology
HREOC Conciliations
Following are summaries of the outcomes of conciliation conferences conducted by the Commonwealth Human Rights and Equal Opportunities Commission (HREOC) in response to complaints lodged with the Commission. The summaries are from HREOC's Disability Discrimination Newsletters and have been paraphrased by Rod Hunter, for ACAA.
1. Difficult Access to Dental Surgery
A patient complained that her dentist's surgery (which is leased) was difficult to enter because there are several granite steps leading up to the foyer and which have no handrail. She experiences problems of balance as a result of multiple sclerosis and therefore has difficulty walking up steps. The surgery is leased by the dentist.
When the patient raised her concerns with the surgery staff she was offered assistance if she phoned ahead that she was coming. She was dissatisfied with this solution and lodged a complaint with the Commission.
The Commission contacted the lessors (the owners) of the building, and they responded with a comprehensive proposal to enhance access to the foyer. This included the addition of handrails at either side (as suggested by the patient) and in the middle of the steps; the texturing of the surface of the steps to minimise the risk of slipping; and the application of white strips at the meeting edges of the automatic glass doors as a visual signifier of their position. The owners also agreed to complete the work immediately.
The complainant reported to HREOC that she was delighted with the outcome and sought no further action.
Back to top
2. Inaccessible Artistic Venue
Some complainants who have mobility disabilities lodged a complaint against Adelaide University in regard to Elder Hall. This is a major artistic venue and is used during the Adelaide Festival.
Following this, the University advised that it had allocated funds to modify access to the Hall and had consulted with the complainants about the building proposal. The University also guaranteed that the Hall would not be used for the 1998 Festival if it were not accessible by then. Work has since been completed. HREOC has lauded this outcome and has commended all parties.
Back to top�
3. Less Favourable Treatment in a Hotel
Two complaints were lodged with HREOC on behalf of a person who used a wheelchair and their two companions. It was alleged that hotel staff demanded that they move from where they were sitting and that hey were provided with less favourable treatment because of the disability of one of the group.
The complaint was referred for a Commission hearing but prior to the hearing the parties reached a settlement after a further conciliation conference with the Commission. The Hotel agreed to pay compensation, to write a letter of apology to each complainant, and to submit an article on disability discrimination to Hotel's relevant industry journal.
Back to top
4. No Accessible Toilets at Railway Station
A woman lodged a complaint against a state rail authority alleging lack of accessible toilets on stations throughout the state.
The rail authority advised that it had already adopted a strategy to make stations accessible by the year 2020 in accordance with the proposed national transport standards. It further advised that the station nearest the Complainant's home, a main transit station, was scheduled for imminent conversion, although this did not include provision of an accessible toilet. The woman proposed the installation of portable toilets as an interim step but this was rejected as impracticable for various reasons including problems of waste removal and security.
The rail authority subsequently agreed to build a permanent accessible toilet within the station which has since been completed. HREOC reports that the Complainant is satisfied with the outcome.
Back to top
5. Unsatisfactory Sanitary Accommodation in Gymnasium
A woman lodged a complaint with HREOC against the University of Sydney. The woman had enrolled in a University fitness program that had been advertised as being held in a purpose-built gymnasium and providing exercise rehabilitation for people with spinal chord, brain or orthopaedic injuries from car accidents (the woman sustained spinal injury as a result of a car accident and uses a wheelchair).
The basis of the complaint was that the venue had no accessible toilet and change room facilities for people with physical disabilities.
The University agreed that there was no accessible toilet/change room facilities in or immediately near the gymnasium, and initially advised that it was not possible to install such a facility. They advised that an accessible toilet/change room facility was located in a nearby building that could be reached from the gymnasium by a pathway (that was unroofed). The University further advised that there would be accessible toilet/change room facilities in another nearby building that was proposed to be constructed.
Following conciliation conferences and a site visit, the University advised the Commission that a new accessible facility would after all be installed within the gymnasium building, and immediately. The University agreed to allow the complainant to view the completed modifications.
Back to top
6. Inaccessible Motel Accommodation
A motel guest lodged a complaint with HREOC against a Motel. He alleged that when he visited the motel it did not have suitable access and accommodation facilities for people who use wheelchairs despite being advertised in the NRMA Accommodation Directory as providing those services.
At a conciliation conference the Motel confirmed that, following discussions with an architect and trades people, alterations would be made to the motel rooms including the provision of shower chairs, adjustable body sprays in shower recesses, and accessible power points.
The Motel agreed that all motel and conference room staff would be properly instructed, by a local disability group, in assisting persons in wheelchairs and in the use of wheelchairs with foot extensions. It also agreed to ensure that guests using wheelchairs are provided with assistance and that they are made aware of the availability of this assistance.
Back to top
7. After-hours Inaccessibility of Bank ATM
A Bank Customer in a country town lodged a complaint with HREOC that he could not access his bank's ATMs after business hours. This was because he could only access them by a ramp and, because this was within the banking area, it and therefore the ATMs were unavailable after hours.
Proposed alternative options, for example by arranging ATM access via another bank's ATMs, were rejected by the Bank. Subsequently the Bank submitted a building development application to the Shire Council to install an accessible ATM in the front facade of the Bank. This proposal had been rejected by the Council some years earlier due to heritage concerns and anticipated other problems including those associated with queuing and other pedestrian movement in front of the Bank. A meeting was therefore held with the bank customer, the Bank, and council planning officers to discuss the proposed installation of the accessible ATM, and to discuss Council's earlier concerns with the proposal and other possible options.
Following this meeting Council approved the application. The customer has since advised HREOC that he is satisfied with the outcome.
Back to top
8. Inaccessible Post Offices
A representative of a disability action group complained about access to two local post offices. One had a ramp at the rear but no sign indicating this and the other was accessible only by steps. After investigation by the Commission, Australia Post placed a notice indicating access to the first post office, and is planning construction of a ramp to the second.
No further action with HREOC was taken by the complainant.
Back to top
9. Inaccessible Showers in Swimming Centre
A woman who uses a wheelchair and swims at a major aquatic centre, complained that she could not shower afterwards before going to work, because (although there are accessible toilets) there were no accessible showers. The Commission assisted with negotiations about an accessible shower and, following this, alterations (including new fittings, floor re-grading and lowered grab-rails) have been completed.
HREOC reports that it has been told many people with a disability, as well as the complainant, are now using the centre and the accessible shower.
Back to top
10. Inaccessible Lift Call Buttons in Shopping Centre
A woman who uses a wheelchair complained to HREOC that the external lift call buttons on her local shopping Centre's central lift were inaccessible because they were too high. She could therefore not use the cafes, shops or entertainment on the upper floors of the Centre.
The Shopping Centre agreed to install accessible panels on all floors and the work has since been completed.
HREOC reports that the complainant is reported to be delighted with the outcome.
Back to top
11. Restricted Seating at Adelaide Entertainment Centre
A man who uses a wheelchair complained that the choices available to him for seating at the Entertainment Centre were very restricted, and that he was unable to sit next to his wife.
The conciliation of this matter, in consultation with representative groups, has resulted in the Centre issuing a media release announcing its new arrangements. There now will always be a seat for an associate next to each designated wheelchair position, and provision for patrons using wheelchairs to sit immediately behind seats for other family or friends.
HREOC notes that, as for all people, such arrangements will depend on booking availability and that booking information is available from BASS. HREOC has urged other entertainment facilities to revise their arrangements similarly.
Back to top
Agreements Prior to HREOC Determinations
1. Shopping Centre Access Negotiated
Following extensive negotiation between developers and people with disabilities in Wagga Wagga (NSW), Woolworths agreed to improve access in its new shopping complex which was then nearing completion. The agreement, which was made public, resolved a complaint which had been made under the DDA and which was the subject of an application to HREOC for an interim determination.
Back to top
2. Agreement to halt building plans to make way for access revisions
A complaint was lodged against a retail shopping centre because it had not provided for wheelchair access at the front entry. The shopping centre owners were proposing to undertake major refurbishment of the front of the centre and plans had already been drawn up and submitted for building approval.
In view of the imminence of construction, the complainant sought an interim determination from HREOC to stop the plans being approved until wheelchair accessibility through the main entrance was included.
Before the interim determination could proceed, the complainant and the Shopping came to an agreement for a suitable ramp at the main entrance of the centre.
Back to top
HREOC Hearings
1. Lack of Access to Telstra Telephone Service: Scott vs Telstra
Mr. Scott, with others, complained that Telstra indirectly discriminated against him because it had not provided him with a telephone typewriter (TTY) in the same way it provides standard handsets to its other customers.
Telstra argued that it was not discriminating against Mr. Scott in supplying him a standard handset, not a TTY, as it did to its other customers because supplying TTYs was not one of its services.
The Commission acknowledged that the DDA could not direct a business to provide a service beyond that which it did normally. However, the Commission did conclude that Telstra was in the business of providing a telecommunication network, not a telecommunications network via a standard handset. Sir Ronald found that Telstra had required Mr. Scott to comply with a requirement or condition of being able to use a standard handset in order to have access to the network. It was accepted by the Commission that Mr. Scott and others like him could not comply with this requirement whereas a substantially higher proportion of people without a profound hearing loss could.
The Commission further found that the imposition of this requirement by Telstra was unreasonable because there were other options available to it, for example by supplying TTYs where needed but charging, if this was warranted, a different rental rate.
Telstra argued that the cost of supplying TTYs would cause it unjustifiable hardship. Whilst accepting part of the evidence for this claim, the Commission concluded that the cost would be offset by the "enormous benefits" of TTYs and therefore rejected this submission.
The Commission concluded that the respondent "failed to take seriously the impact that the enactment of the Disability Discrimination Act could have upon its operations".
The Commission ordered the provision by Telstra of $600 to Mr. Scott towards the purchase and/or maintenance of a TTY, with further provision later for a replacement TTY, and $250 for Mr. Scott's expenses in bringing his complaint. He also ordered similar provision for each household where a profoundly deaf person who is not eligible for the Commonwealth's means-tested TTY scheme is resident.
Telstra lodged an appeal against Sir Ron Wilson's decision with the Federal Court but later withdrew the appeal. Telstra announced that from March 1, 1996, vouchers would be issued for TTYs as ordered by the Commission. Telstra thanked all parties for their involvement in this matter and advised its intention to work in future with disability representatives to implement the Commission's decision.
Back to top
2. Guide Dogs in Restaurants: Jennnings vs Lee
A woman lodged a complaint against a restaurant in relation to her guide dog.
The woman has a vision impairment and had just started using her guide dog.
Upon entering a restaurant with friends she was asked to leave her dog outside. Even though she and a companion explained that guide dogs are allowed in restaurants, and are trained not to take food from tables, the Restaurant would not allow the dog to remain inside. Mrs. Jennings and her friends left soon after.
The woman asserted that the distress she experienced contributed to her later decision to give up her guide dog.
Attempts to conciliate this matter by HREOC were unsuccessful so it was referred to a Commission hearing.
At the hearing the Restaurant did not contest the matter and advised that it had not understood that guide dogs were allowed in restaurants.
As a result of the hearing, the Restaurant gave the woman an unreserved public apology. The Commission awarded the woman $3,000 by way of compensation for injured feelings and the distress and embarrassment caused her by the Restaurant's conduct.
Back to top�
3. Venue for Employment Interview
A woman who has muscular dystrophy responded to an advertisement offering employment (on a ship). The advertisement did not specify any physical requirements for the position. The woman was invited to an interview and informed the prospective employer by phone of her mobility disability, inquiring also about access to the venue for the interview. She was told there would be five steps. She indicated she could manage this, with assistance, but no more than this.
The woman alleged that the prospective employer told her there would be no point in attending the interview as the position required working where there were many stairs. The woman deferred this discussion until her interview.
Upon arriving at the venue the woman was confronted by sixteen, not five, steps. The interviewer came out and spoke to the woman while she remained in the taxi and an interview was scheduled for the next day at an alternative venue.
The Commission found that the arrangement of the interview in an inaccessible building that had sixteen steps, despite the complainant informing the respondent of her inability to access such a building, was unlawfully discriminatory and awarded $2,130 damages to the woman.
Back to top
4. Inaccessibility of Cinema: Cooper and Others vs Holiday Coast Cinema Centres, 1997
A person, on behalf of himself and fellow members of an organisation who are confined to wheelchairs, lodged a complaint under the DDA with HREOC about a cinema complex in Coffs Harbour.
The complaint was that it was impossible for a person in a wheelchair to independently enter the cinemas; that even though assistance was available it was unacceptable and that therefore the patrons who use a wheelchair were indirectly discriminated against. Evidence was given about the apprehension experienced by a wheelchair user in being carried up stairs lest serious injury be caused to the person being carried and to those doing the carrying.
The cinema complex was an existing one that contained two cinemas. It was refurbished and another cinema added. The resulting complex has five levels with four flights of stairs.
It was concluded by the Commission that lifts and ramps were not possible or practical within the cinema complex and that platform stairlifts were the only feasible means of providing for independent wheelchair access to all levels.
In arguing against the installation of stairlifts, the Cinema asserted that the installation would be financially crippling and cause the cinema to be closed, having repercussions for cinema staff, the cinema-going public, and the local community generally. The Commission acknowledged this but concluded on evidence that the installation could be accommodated within the typical seven year refurbishment cycle of the cinema and that the cost could be amortizable over this time.
The Commission found that indirect discrimination had occurred because there was effectively a requirement or condition that persons wishing to gain access to the cinema complex be able to climb stairs. This was a requirement or condition with which the complainants and other persons with similar disabilities could not comply, and which was not a reasonable condition or requirement.
The Cinema was directed to install within or by the end of five years efficient and effective platform stairlifts to provide access to all levels of the cinema.
Back to top
5. Cigarette Smoke in Nightclub: Francey and Meeuwissen vs Hilton Hotels of Aust. Pty Ltd
A person lodged a complaint against Juliana's Nightclub, in the New South Wales' Hilton Hotel, in relation to attendance by her and a friend at the nightclub. The woman has asthma.
After being in the nightclub for about half an hour it began to fill up and people were smoking. The woman had to leave because of the smoke and her friend left with her.
The Commission held that the person had been indirectly discriminated against on the ground of her disability because, in effect, there was a requirement or condition that people using the nightclub be able to tolerate inhalation of tobacco smoke whereas the woman's condition prevented her from complying with this. The evidence showed that persons with such disabilities are less able to comply with this requirement than persons without such disabilities.
It was held that, although the Nightclub had not created the smoke, they had imposed the requirement for toleration of it because it was in the Nightclub's power to provide smoke free air (by prohibiting or limiting smoking or by using more effective ventilation systems). The Commission found that this was not a reasonable requirement or condition because the requirement to tolerate smoke would exclude about 10% of the population.
The Nightclub argued that there was no discrimination because it was the complainants' choice to attend the nightclub and they had been warned that smoking was allowed. However the Commission rejected this because, it pointed out, it was equivalent to arguing that there is no discrimination if people are advised that there will be.
The Nightclub argued that the various measures to remedy the situation would create unjustifiable hardship. Against this the Commission concluded:
- The Nightclub is evidently refurbished every three to four years.
- There was insufficient evidence that the respondent would lose a substantial sum of money in custom if smoking were prohibited or limited.
- There were measures in New South Wales to prohibit smoking in public venues that have no smoke extraction system.
The Commission awarded $2,000 to the woman, and $500 to her friend who had suffered detriment from the incident. It deferred a decision on ways of remedying the problem pending receipt of further submissions from the parties.
Back to top
6. Application by a Business for Exemption from Lift Installation
A business was intending to buy a building for renovation and subsequent use as its own premises. It proposed to have, from the outset, an accessible ground floor and, later, lift access to the first floor.
The business applied to HREOC for an exemption from the DDA on the grounds that it could not afford to install the lift at the outset, and because they were intending to deliver their service from the accessible ground floor. They wanted an exemption until they could afford the lift, that is, that it created unjustifiable hardship..
The Commission refused the application. It pointed out that exemptions should ordinarily only be granted when they contribute to the objectives of the DDA and that 'unjustifiable hardship' is a defence against a complaint rather than the basis for an exemption. If something causes, in terms of the DDA, unjustifiable hardship, then it is not prohibited under the DDA and therefore does not require an exemption.
The Commission advised that exemptions and 'unjustifiable hardship' do not prevent complaints being lodged, although each may contribute to defence against such complaints.
The Commission advised service providers with disability discrimination concerns to prepare a Disability Action Plan and to lodge it with HREOC to show that action is being taken to eliminate disability discrimination.
The Commission pointed out that application for an exemption would need to be supported by demonstration that the exemption would serve the public interest and advised that the procedure would be a more difficult than preparing an action plan.
Back to top
7. Exclusion from Graduation Ceremony: Kinsella vs Queensland University of Technology
Mr. Kinsela, who uses a wheelchair, complained to the Commission that, on completion of his Bachelor of Science (Human Services) degree he would not be able to participate on the same basis as his colleagues in the graduation ceremony because the ceremony was to be held in an inaccessible venue. Even though some arrangements were to be made to accommodate him on the stage, he would not be able to have the experience of participating in the procession with his year group and being part of the normal and significant experience of receiving his degree in the same way as everybody else.
Efforts to negotiate a change of venue with the University had been unsuccessful, and the matter went to hearing. The Commission found that the requirement that graduands be able to use steps to participate fully in the ceremony was not reasonable, and that there was an alternative venue which could be used. In considering the "unjustifiable hardship" provisions of the DDA, she found that there were other benefits that may accrue to participants and their families and friends, in the use of the more accessible venue, and that these outweighed the possible disadvantages for the University. She also pointed out that, despite the Concert Hall having been the traditional venue for these ceremonies, "the legislation has changed, and the rights that are expected by and afforded to persons with a disability have changed and so expectations must themselves change".
Commissioner Atkinson ordered that the graduation ceremony be moved to an accessible venue.
Back to top
Victoria
Victorian Administrative Appeals Tribunal
1996.
Threshold Steps at Shops
In a Melbourne inner-suburb, premises housing a former supermarket were to be sub-divided into a smaller supermarket and 12 retail shops. The design, documentation, and permit applications were carried out by a firm of architects specialising in shopping centres.
A town-planning permit was issued by the Local Council, with the condition that entrance doors be constructed to accord with the Australia "access" standard AS1428.1 and to the satisfaction of the Council.
A number of planning approval amendments were later sought and granted, and a building permit also sought and obtained, from the Council (the building permit was obtained from a private building surveyor acting as delegate for the Council). The subsequent drawings prepared by the architects, and submitted for purposes of the planning approval amendments and building permit included details for steps at the entries to many of the shops. These details were not noticed or acted upon by the Council planning officers or the building surveyor.
Towards completion of the project, the Council became aware that there were steps at the entries of many of the shops. The council thereupon advised the architects that the project had not proceeded in accordance with the permit and directed, in effect, that the shop entries be modified to have no steps.
The architects lodged an appeal with the Tribunal against the directive.
The solicitor for the architects argued that:
- Notwithstanding the initial planning condition, the Council, by approving the subsequent planning amendments and building permit, in effect approved the steps at the shop entries.
- The condition was invalid because it was inconsistent with the Building Code of Australia, and
- It was an unreasonable directive.
In relation to 1, the Tribunal found that, whilst building plans for these approvals included details for the shop entries, there was no evidence that the subsequent approvals were, among other matters, specifically for the shop entries. It therefore found that that the issue of the subsequent approvals did not constitute Council's agreement that its initial planning condition had been met.
The argument for 2 was in effect that:
- requirements of the Building Code of Australia are maximum requirements, not minimum;
- small shops (under a particular floor area) are not required by the Building Code of Australia to be accessible to people with a disability,
- a planning permit cannot require a higher standard than a building permit.
The Tribunal rejected the first and last parts of this argument, finding that building regulations set minimum, not maximum requirements, and that planning permit conditions can set higher standards than may be contained in building regulations.
The argument for 3 was in effect that:
- the shops are small and are therefore not required by the Building Code of Australia to be accessible to people with a disability
- modifying the shop entries would be very costly and also disruptive to tenancy agreements.
In response to this the Tribunal stated:
".... the biggest surprise .... is that these shops were designed with two steps at their entries. The development involved the construction of a new floor, therefore the opportunity existed for the construction of shops with entrances at footpath level. It is difficult to understand why this was not done ....
The Tribunal accepted a submission on behalf of a post-polio group that "demonstrated how the shops .... completely deny access to people in wheelchairs, and make access difficult for the very elderly or infirm who rely upon walking sticks, walking frames and the like..... The Tribunal noted that "....technology and community attitudes mean that people who in the past may have been restricted to their own homes are increasingly found enjoying access to public facilities, in particular shopping centres. The Tribunal was not satisfied that the "mistake which has occurred in this case" that is, the oversight of the entry details,should be allowed to prevent the condition of the original planning permit being implemented, and which condition the Tribunal found reasonable.
The Tribunal directed that the original planning condition be upheld and that the steps therefore be removed from the shop entries.
Summary prepared by Hunarch Consulting
Back to top
Queensland
Queensland Anti-Discrimination Tribunal
24 August 1994
Brisbane Convention and Exhibition Centre: Kevin Cocks v State of Queensland
The Queensland Anti-Discrimination Tribunal ordered that the front entrance to the Brisbane Convention and Exhibition Centre, a major State project which at the time was under construction, be modified so as to include a lift at the entrance.
The Brisbane Convention and Exhibition Centre project was undertaken on a design and construct basis, with tenders called in August 1992. Tenderers were required to comply with AS1428.1 "Design for Access and Mobility". Leighton Contractors Pty Ltd were the successful contractors, undertaking to comply with Part 2, as well as Part 1, of AS1428.
The Centre has 5 public levels and is served by 10 public entries distributed around the perimeter of the Centre. The Centre generally is served by steps, ramps and lifts (in the course of the hearing it was alleged that more than half of the entries were comprised of stairs and were therefore inaccessible to those who have an impairment that precludes the use of stairs).
One of the Centre's entries had been designed as the main entry to the Centre, its foyer being intended to contain works of art and a large registration desk for conferences. At the date of the hearing this entry was accessible only by a flight of 27 steps.
Lifts within one of the other entries, and which is suitable for use by people who use wheelchairs, are located approximately 43 metres away from the base of the steps to the main entry.
From March 1993 to July 1994 negotiations were held with the Leightons and Q Build (the Queensland construction authority) by the access and mobility committee of ACROD (an organisation representing the accessibility rights of people with a disability). The negotiations related to, among other accessibility matters, the lack of accessibility of the Centre's main entry. The solution proposed to Leighton and Q Build was the construction of a lift at the main entry.
In October 1993, a report of Queensland's Parliamentary Committee of Public Works was submitted to the Legislative Assembly. The Committee expressed concern at the lack of accessibility of the Centre, particularly the main entry; the effect of this in segregating the "disabled" from other persons using the complex; and the lack of consultation with "disabled" groups.
Notwithstanding the negotiations and the Government report, no changes were made to the main entry.
A complaint was subsequently lodged with the Tribunal by Kevin Cocks, a person who has quadriplegia and relies for mobility upon a wheelchair.
The Tribunal found: 'The failure to provide access to the front entrance of the Centre for persons with a mobility impairment is unlawful discrimination.... It is indirect discrimination on the ground of impairment in the provision of services and in the administration of State laws and programs to which no exemption applies.' The Tribunal ordered that a lift be constructed at the main entry, leaving the integration of the appearance of the lift with that of the Centre to the discretion of the Centre's architects, but stipulating that the appropriate design be developed within 14 days of the Order, and that failure so to do would result in the Tribunal determining the design.
In its reason for its finding, the Tribunal elucidated the difference between direct and indirect discrimination, citing McHugh J. in Waters v Public transport Corporation (1991): " .... discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different." The Tribunal observed that "Indirect discrimination occurs when a requirement or condition is imposed equally but has an adverse impact on persons with different attributes. In this regard it cited Dawson and Toohey, also in Waters v Public Transport Corporation: "Both direct and indirect discrimination .... entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable."
In terms of the Queensland Anti-Discrimination Act, which outlaws discrimination in the supply of goods and services, the Tribunal found that access to the main entry of the Centre is a service, a service provided with the condition that people be able to use steps.
In considering whether there was a case for unjustifiable hardship to the State of Queensland, the Tribunal concluded that, notwithstanding the estimated cost of over $m277 for construction of a lift at the main entry, this was a small amount in relation to the multi-million dollar cost of the project. In response to Q Build's concern at resulting project delays, the Tribunal was unmoved, observing that Q Build had the opportunity for some time to attend to the matter.
The Tribunal concluded: The detriment to the respondent is the cost and the aesthetic effect of the installation of the lift. The benefit to the impaired is that they would feel welcomed into a major public building and would not be excluded in fact from the principal entrance used by others. It would enhance their rightful acceptance as members of the community with equal dignity and worth ...."
The significance of this landmark case is that it establishes that accessible alternative or subsidiary entries to inaccessible main entries, even if they are relatively close to the main entries, are unacceptable at law. It also clearly establishes a precedent in relation to other building features and attributes.
Place of Hearing: Brisbane
Dates of Hearing: 22,23 August, 1994
Date of Decision: 24 August, 1994
R.G Atkinson , President of the Anti-Discrimination Tribunal
Summary prepared by Hunarch Consulting.
|
