HMatter No H98/56 Timothy Allen v United Grand Lodge of Queensland Matter No H98/130 Timothy Allen v Kingaroy Masonic Lodge
Timothy Allen v United Grand Lodge of Queensland
Matter No H98/130
Timothy Allen v Kingaroy Masonic Lodge
Number of pages - 12
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
W. J. CARTER QC
BRISBANE, 30 November and 7 December 1998 (hearing), 12 April 1999 (decision)
#DATE 12:04:1999
Appearances
F W Redmond of Counsel, instructed by G T Down Solicitor, for the complainant
R V Hanson of Queen's Counsel, instructed by John C Walker Solicitor, for the
respondents
Order: complaints dismissed
W. J. CARTER QC
The complainant, who is a member of each of the respondent Masonic Lodges,
suffers from a condition known as Cerebellar Ataxia as a result of which he has
an uneven, unbalanced and unsteady gait. This is a disability within the
meaning of the Disability Discrimination Act 1992 (Cth) ("the Act").
On 2 September 1997 he lodged a complaint with the Human Rights and Equal
Opportunity Commission ("the Commission") pursuant to the Act against the
United Grand Lodge of Queensland whose Masonic Temple is situated at 309 Ann
Street, Brisbane and the Kingaroy Masonic Lodge whose premises are known as the
Kingaroy Masonic Centre. He complains that as a member of each Lodge he is
unable to access the premises of each because the premises can only be accessed
by stairs which because of his disability he is unable to utilise.
Attempted conciliation of the complaints having failed the Disability
Discrimination Commissioner referred the complaints to the Commission for
public Inquiry pursuant to s.76(1) of the Act.
The complainant alleges that by failing to provide means of access for him to
the subject premises, each Lodge has unlawfully discriminated against him on
account of his disability.
Section 23(1)(a) and (c) of the Act provides:
(1) It is unlawful for a person to discriminate against another
person on the ground of the other person's disability or a disability of any of
that other person's associates:(a) by refusing to allow the other person
access to, or the use of, any premises that the public or a section of the
public is entitled or allowed to enter or use (whether for payment or not); or(b) ...
(c)in relation to the provision of means of access to such
premises; or
The Application
When the matter came on for hearing by the Commission in Brisbane on Monday 30
November 1998 and Monday 7 December 1998 counsel for the respondent submitted
that by reason of certain statutory provisions the Commission should dismiss
the complaint before inquiring further, on the ground that the failure of the
respective Masonic organisations to provide acceptable access to their premises
was not unlawful.
Section 100(a) and (b) of the Act provides:
The Commission may, at any stage of an inquiry, dismiss a complaint
if:(a) the Commission thinks that a complaint is trivial, vexatious,
misconceived or lacking in substance; or(b) the Commission is satisfied
that the complaint relates to an act that is not unlawful under a provision of
Part 2; or(c) ...
During consideration of the matter after the hearing in Brisbane on 30 November
and 7 December 1998 I requested that counsel for each party prepare written
submissions with reference to certain questions which I raised in
correspondence with them. These submissions were received from counsel in
January/February 1999.
The Statutory provisions relevant to the application
Section 12 of the Act in its various sub-sections deals with the application of
the Act, given the constraint upon the Parliament to enact valid laws of the
Commonwealth in relation to the rights of disabled persons. Section 12(1)
provides that in the section "limited application provisions" means the
provisions of Divisions 1, 2 and 3 of Part 2 other than s.20, 29 and 30.
Section 23 which is the source of the complaints is one of the "limited
application provisions."
Section 12(8) provides:
(8) The limited application provisions have effect in relation to
discrimination against a person with a disability to the extent that the
provisions:(a) give effect to the Convention; or
(b) give effect to the
Covenant on Civil and Political Rights; or(c) give effect to the
International Covenant on Economic, Social and Cultural Rights; or(d)
relate to matters external to Australia; or(e) relate to matters of
international concern.
Section 12(9) provides:
(9) The limited application provisions have effect in relation to
discrimination by a foreign corporation, or a trading or financial corporation
formed within the limits of the Commonwealth, or by a person in the course of
the person's duties or purported duties as an officer or employee of such a
corporation.
One can immediately dismiss section 12(9) of the Act as irrelevant to the
Inquiry because each of the respondent Lodges is not an incorporated body for
relevant purposes.
The premises of the United Grand Lodge of Queensland are situated in the
central business district of Brisbane and the real and personal property of the
Lodge is vested in trustees. So too with the premises owned by the Kingaroy
Lodge. This Lodge is not an incorporated body and its real and personal
property is likewise vested in trustees.
The merits of the application fall to be determined with reference to section
12(8) and section 23 of the Act.
The competing submissions
Counsel for the respondents submitted that:
The Commission has no jurisdiction to entertain the complaints
because:
(a) the Act (or s.23 of the Act) does not apply because s.23 does
not give effect to the Convention or Conventions mentioned in s.12(8)(a)(b) or
(c);(b) the Act (or s.23 of the Act) does not apply because s.23 does not
"relate to matters of international concern" (s.12(8)(e))(c) in any event
s.23 only applies to "premises that the public or a section of the public is
entitled or allowed to enter or use"; the premises of each Lodge are not such
premises.
Counsel for the complainant submitted that:
(a) pursuant to s.12(8)(e) the limited application provisions have
effect in relation to discrimination against a person with a disability to the
extent that the provisions relate to matters of international concern;(b)
the rights of the physically disabled are a matter of international
concern;(c) the respondents premises at Brisbane and at Kingaroy are
"premises that the public or a section of the public is entitled or allowed to
enter or use."
Section 12(8) of the Disability Discrimination Act
Section 23, being one of the limited application provisions of the Act, may
have effect in relation to discrimination against a person with a disability to
the extent that it gives effect to the Discrimination (Employment and
Occupation) Convention 1958 (the "Convention"), the Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights.
It is common ground between the parties that the question of access to premises
by persons with a disability (s.23 of the Act) does not "give effect" to the
Convention or the Covenants referred to in s.12(8)(a)(b) or (c). These deal
with a variety of subject matter but not with the question of access to
premises by persons with a disability.
The question remains however whether s.23 has effect in relation to
discrimination against a person with a disability to the extent that the
provisions of s.23 "relate to matters of international concern" (s.12(8)(e)).
There is a notable and significant difference in language between
s.12(8)(a)(b)(c) on the one hand and s.12(8)(e) on the other. Whereas the
relevant inquiry may be in an appropriate case whether a limited application
provision gives "effect" to one or other of the international Covenants or the
Convention (s.12(8)(a)(b)(c)), the immediate concern here is whether this
limited application provision (s.23) "relates" to matters of international
concern (s.12(8)(e)). This issue became the focus of counsel submissions.
Matters of international concern
The statutory inclusion of "matters of international concern" within s.12(8) of
the Act probably has its origin in the judgement of Stephen J in Koowarta
-v- Bjeke Petersen 1982 153 CLR at pages 216-217.
It is for the courts, not the Commission, to determine whether the relevant
statutory provisions are a valid exercise of the legislative power of the
Commonwealth. It is however a matter for the Commission to determine in the
course of its Inquiry whether the relevant limited application provision,
namely s.23, "relates" to matters of international concern, given the facts and
circumstances of the particular complaint. That determination necessarily has
to address the fundamental question whether the complaint in question is a
proper matter for inquiry by the Commission given the terms of the statute
which limits its jurisdiction and function.
Some matters of international concern are well known and easy enough to
identify as such. For example, issues of nuclear disarmament and the
proliferation of nuclear weapons can be readily identified as matters of
international concern. Here the question arises:
Is the statutory prohibition in s.23 of the Act which makes unlawful
discrimination against a person on the ground of that person's disability, by
denying that person access to certain premises, a provision which relates to
matters of international concern?
The further question arises as to the form which such an inquiry might take in
determining whether any relevant matter is a matter of international concern.
It seems clear from s.98 of the Act that for the purposes of the inquiry the
Commission may inform itself of any matter in any manner it sees fit. It is not
bound by the rules of evidence which may require proof of a particular matter.
Rather its inquiry must be conducted with as little formality and technicality
as is appropriate.
Inquiries reveal that on 4 March 1994 the General Assembly of the United
Nations adopted a resolution confirming Standard Rules on the Equalisation
of Opportunities for Persons with Disabilities. The document itself relates
the historical background to the Resolution and cites, inter alia, the UN
initiative in establishing 1981 as the International Year of Disabled Persons.
Part of the introduction to the Rules read:
1. There are persons with disabilities in all parts of the world
and at all levels in every society. The number of persons with disabilities in
the world is large and is growing.2. Both the causes and the consequences of
disability vary throughout the world. Those variations are the result of
different socio-economic circumstances and of the different provisions that
States make for the well being of their citizens.3. Present disability
policy is a result of developments over the past 200 years. In many ways it
reflects the general living conditions and social and economic policies of
different times. In the disability field, however, there are also many specific
circumstances that have influenced the living conditions of persons with
disabilities. Ignorance, neglect, superstition and fear are social factors that
throughout the history of disability have isolated persons with disabilities
and delayed their development.4. Over the years disability policy developed
from elementary care at institutions to education for children with
disabilities and rehabilitation for persons who become disabled during adult
life. Through education and rehabilitation, persons with disabilities became
more active and a driving force in the further development of disability
policy. Organisations of persons with disabilities, their families and
advocates were formed, which advocated better conditions for persons with
disabilities. After the Second World War the concepts of integration and
normalisation were introduced, which reflected a growing awareness of the
capabilities of persons with disabilities.5. Towards the end of the 1960s
organisations of persons with disabilities in some countries started to
formulate a new concept of disability. That new concept indicated the close
connection between the limitations experienced by individuals with
disabilities, the design and structure of their environments and the attitude
of the general population. At the same time the problems of disability in
developing countries were more and more highlighted. In some of those countries
the percentage of the population with disabilities was estimated to be very
high, and for the most part, persons with disabilities were extremely
poor.PREVIOUS INTERNATIONAL ACTION
6. The rights of persons with
disabilities have been the subject of much attention in the United Nations and
other international organisations over a long period of time. The most
important outcome of the International Year of Disabled Persons 1981, was the
World Program of Action concerning Disabled Persons, adopted by the General
Assembly by its resolution 37/52 of 3rd December 1982. The Year and
the World Program of Action provided a strong impetus for progress in the
field. They both emphasised the rights of persons with disabilities to the same
opportunities as other citizens and to an equal share in the improvements in
living conditions resulting from economic and social development. There also,
for the first time, handicap was defined as a function of the relationship
between persons with disabilities and their environment.
TOWARDS
STANDARD RULES
10 Guided by the deliberations in the General Assembly, the
Economic and Social Council, at its first regular session of 1990, finally
agreed to concentrate on the elaboration of an international instrument of a
different kind. By its resolution 1990/26 of 24 May 1990, the Council
authorised the Commission for Social Development to consider, at its
32nd Session, the establishment of an ad hoc open ended working
group of government experts, funded by voluntary contributions, to elaborate
standard rules on the equalisation of the opportunities for disabled children,
youth and adults, in close collaboration with the specialised agencies, other
inter governmental bodies and non governmental organisations, especially
organisations of disabled persons. The Council also requested the Commission to
finalise the text of those rules for consideration in 1993 and for submission
to the General Assembly at its 48th Session.11 The subsequent
discussions in the Third Committee of the General Assembly at the
45th Session showed that there was wide support for the new
initiative to elaborate standard rules on the equalisation of opportunities for
persons with disabilities."
For present purposes one need only refer to Rule 5 of the Standard Rules which
were adopted and which are set out in Part II headed Target Areas for Equal
Participation. Rule 5 identifies one such target area which is headed Accessibility. It states by way of introduction:-
"States should recognise the overall importance of accessibility in
the process of the equalisation of the opportunities in all spheres of society.
For persons with disabilities of any kind, States should(a) introduce
programs of action to make the physical environment accessible; and(b)
undertake measures to provide access to information and
communication."
Under the further subheading (a) Access to the Physical Environment it
is said:
1. States should initiate measures to remove obstacles to
participation in the physical environment. Such measures should be to develop
standards and guidelines and to consider enacting legislation to ensure
accessibility to various areas in society, such as housing, buildings, public
transport services and other means of transportation, streets and other outdoor
environments."
It is not necessary to set out the other provisions of Rule 5.
Section 23 of the Act is an example of the legislation which has been enacted
to ensure accessibility for the disabled of the kind referred to in the quoted
paragraph.
Clearly the United Nations Resolution and the Rules annexed evidence the joint
concern of Member States to promote the equalisation of opportunities for
persons with disabilities. The corollary of that proposition is that
discrimination by one person against another on the ground of the latter's
disability has to be rejected. The equalisation of opportunities for the
disabled is the very antithesis of a regime which condones discrimination on
the ground of one's disability. Therefore one can only conclude that the
equalisation of opportunities for the disabled and the avoidance of
discrimination on the ground of disability has become a matter of international
concern and one manifestation of that concern is the United Nations Resolution
referred to in some detail above.
Section 23 of the Act, one of the limited application provisions relates to
that particular matter of international concern. Section 23 has a direct
relationship with Rule 5 which identifies access to the physical environment as
one of the target areas for equal participation by disabled persons.
I am satisfied that the Commission has the statutory jurisdiction to inquire
into this complaint.
"Any premises that the public or a section of the public is entitled or
allowed to enter or use"
Argument was addressed to the question whether the premises of each respondent
were comprehended by s.23. Section 23 of the Act attaches "unlawfulness" to the
discriminatory acts referred to in the section, but it limits the scope of
potential unlawfulness, so far as access is concerned, to those premises only
which the public or a section of the public is entitled or allowed to enter or
use (whether for payment or not). Clearly the Act is designed to proscribe as
unlawful any discrimination on the ground of a person's disability in relation
to the provisions of access to such premises.
One therefore has to attempt to classify or categorise the premises to which
the complaint relates and the only statutory assistance which is provided in
the Act is provided by the words of the section "premises that the public or a
section of the public is entitled or allowed to enter or use (whether for
payment or not). It is only in respect of access to "such premises" that
discrimination on account of a disability may give rise to unlawfulness.
The phrase "the public or a section of the public" is the key component in
qualifying the premises to which the section relates. If in respect of the
premises in question those persons who constitute the public or a section of
the public are entitled or allowed to enter or use them then those premises are
premises defined by the section.
The evidence of Charles James Mansfield, the immediate past President of the
Kingaroy Lodge, makes it clear that at the Kingaroy Lodge premises non-members
of the Lodge are ordinarily denied access. The premises are specifically
designed for and occupied by members of the Lodge for the purposes of Lodge
meetings at which the members in common conduct their usual business. Entry is
denied to non-members except in very limited circumstances. Those members of
the public who have expressed an interest in becoming members of the Lodge are
shown onto the premises for the purpose of inspecting them. Secondly where a
Masonic member has recently died a ceremony known as a Lodge of Remembrance is
held in the premises to which non-Masonic relatives of the deceased member are
invited. The entry of non-members onto the premises therefore is exceptional
and subject to this exception the only members of the public who are entitled
or allowed to enter and use the premises are the initiated members of the
Lodge. No evidence was given with specific reference to the Ann Street premises
of the United Grand Lodge but it can be safely assumed that the measure of
privacy which attaches to the Kingaroy Lodge premises attaches also to the
premises in Ann Street, Brisbane, the property of the United Grand Lodge of
Queensland.
The phrase "the public or a section of the public" has in various contexts
given rise to the need for judicial interpretation. As has been said
(Corporate Affairs Commission -v- Australian Central Credit Union (1985)
157 CLR 201 at 208 per Mason ACJ, Wilson, Deane and Dawson JJ) each and every
citizen can be said to be a member of the public and any group of persons of
two or more can be said to constitute a section of the public. However, as
their Honours hasten to add, the question whether a particular person or group
of persons is or are comprehended by the relevant phrase cannot be answered in
the abstract (see also Campbells Cash & Carry Pty Ltd -v- The Director
of Public Prosecutions). Clearly the phrase has to be understood in its
statutory context and interpreted in the light of the statutory objective which
the Act is designed to achieve. The Disability Discrimination Act is designed
to protect the rights of the disabled. Therefore it might be argued that the
relevant phrase should be interpreted broadly. At the same time the fact
remains that the words in question are words of limitation in the sense that
they are designed to exclude certain premises from the operation of the
section.
On one view it could be said that s.23 comprehends most if not all premises in
any given built environment if the custodian of the premises has granted an
approval or permission to even a handful of persons to enter and use such
premises. On this basis one could even include most domestic premises such as a
private home if approval or permission had been given to any number of persons
to enter it. On the other hand it seems more likely that the Parliament
intended that the words "that the public or a section of the public is allowed
or entitled to enter or use" are words designed to impose unlawfulness for
discrimination in respect of access, only in respect of those premises which
one might loosely describe as "public premises" as distinct from " private
premises". Ordinarily one would not regard a whole range of what might be
called "private" premises as distinct from public premises as premises which
the public or a section of the public is entitled or allowed to enter or use.
The difficulty lies in drawing the line in any particular case.
The reference to premises which the public or any section of the public is
entitled or allowed to enter or use dominates the context and must therefore
strongly influence the interpretation in limiting the application of the
section to those premises which are usually entered or used by the public or
any section thereof. It is in respect of those premises that any
discrimination, with respect to access, against another on the grounds of that
person's disability will give rise to the finding of unlawfulness. Premises
constructed, owned and occupied for the use only of members of a Masonic Lodge
would not in every day parlance be identified as premises which the public or a
section of the public is entitled or allowed to enter or use. Rather the
contrary. Those who are not Freemasons probably know little of the Masonic
Lodge, its fundamental beliefs and ideals, its practices and rituals. Some
publicity in recent years has been given by the movement itself to such matters
but in general one could not confidently assert that the general public in
Australia or any section of it, particularly those who are not Freemasons,
could or would claim an entitlement to enter and use Lodge premises or could
expect approval to be given to them for such entry or use. Lodge premises are
often described in one's experience as the Masonic Temple. Obviously the
premises have a specific religious or cultural existence, entry to which is
confined only to those who are Lodge members or in special circumstances to
specific persons who are either aspiring Freemasons or the relatives of a
deceased Freemason, and then only for a specific and limited purpose.
By way of contrast the public or a section of the public might by law or custom
or pursuant to some right or tradition be seen to have an entitlement to enter
certain premises or to be allowed to enter them. In the latter case the
allowance or permission is not so much dependent upon the specific grant of an
approval or permission to the public at large or to any section of it but
rather the allowed or permitted entry or use in favour of the public generally
or in favour of a section of the public is acknowledged and accepted. An
airport or railway terminal is only one of many such premises.
Some examples may assist a better understanding of what the Parliament
intended. In the case of "public" buildings like the Houses of Parliament, the
local Courthouse, the large Cathedral in a city, one can easily recognise such
premises as those which the public at large is seen to have an entitlement to
enter or to use or in respect of which the public is encouraged to enter and is
made welcome with the implicit approval or permission of the owner. Such
premises qualify as such because in common with others one does not need to
possess any particular personal characteristic or quality or attribute to
qualify for entry. Being a member of the public or of an identifiable section
of it is sufficient. The entrants whether entitled or permitted are
heterogeneous in character and are not restricted as a class by any particular
or specific set of criteria. Those who enter "public" building do so as mere
members of the public.
To be contrasted with this classification are premises which are essentially
"private" in character - premises to which the public generally or any section
thereof cannot lay claim to an entitlement or an implied authority to enter.
The private home is of course the prime example. But even this apparently
simple distinction is not necessarily decisive. For example a police officer(s)
may be entitled by law and hence entitled to enter and use premises for the
purpose of searching them for the purposes of the criminal law. Are such
premises comprehended by the language of s.23 so that the obligations created
by the section are imposed on the private home owner? And if not why not? It
may be argued that such police officers are not for the purposes of s.23 a
"section" of the public because they are a discreet selective or homogeneous
group as distinct from a diverse body of people who are an amorphous group and
who constitute quantitatively a section of the general public.
Again it is easy to nominate as a "section of the public" a group or discreet
class of persons whose essential defining characteristic or whose specific and
separate identity is based on a certain unity of purpose, for example, the
members of a football club or an order of religious women or monks. Are the
premises of each caught by the section if members of the public are invited to
the club premises or to the convent or monastery.
And to take this point to its logical conclusion - is the owner of the private
residence caught by the section if he/she issues a general invitation to other
residents of the street to attend the residence for a social function? If
he/she is, then it would follow that premises which are essentially private
premises would become "public" premises if and when the owner issued the
relevant invitation, a characteristic which would endure only for so long as
the "section of the public" took advantage of the limited permission to enter.
Since the objective of s.23 is to create unlawfulness the circumstances in
which the unlawfulness will attach should be able to be identified with
reasonable precision. It seems to be an absurdity that the owner of private
premises from which the public or any section thereof are ordinarily excluded
should be found to have acted unlawfully if for a discreet reason permission is
given to a section of the public to enter, but one such person cannot because
of a disability.
In s.23 "the public" is to be construed without limitation and is synonymous
with or coterminous with "any person". In short the section is concerned to
impose an obligation, for the breach of which unlawfulness will attach, in
respect of those premises only to which the general public, the public at large
or any member of the public is entitled or allowed to enter or use. In the
context, the term "a section of the public" has a like application. Whilst the
term "section of" necessarily imposes a quantitative limitation there remains
an intention that the "section" must have the same general diversity as that
which belongs to the whole.
Therefore what constitutes a section of the public for the purpose of s.23 will
be determined having regard to the nature of the premises and the purpose for
which the premises will normally be entered or used, the relationship between
the premises and the public generally, the degree of control which the owner or
controller of premises will lawfully exercise in respect of entry to and use of
those premises, the nature and extent of the person or persons who are the
usual entrants or users, whether any special relationship or connection exists
between the premises and the usual entrants or users and whether a section of
the public is comprised of persons possessing particular or specific
characteristics which bears some special relationship or connection with the
use of the particular premises.
Each case will fall to be determined by reference to its own facts and
circumstances.
The question immediately arises in this case as to whether those entrants who
have an entitlement or are the permitted entrants, that is the Lodge members
themselves, are for the purposes of the section a "section of the public".
There is obviously a close and necessary nexus between the Lodge premises and
the persons who are Lodge members. Their capacity to enter and use the premises
arises by virtue of their initiation to membership of the Lodge. Except in the
special circumstances identified other members of the public are excluded. To
borrow the phrases used in the joint judgement in the Australian Credit
Union Case supra at page 209 the membership of the respective Lodges would
be "both restrictive and well defined" and their capacity to enter and use the
premises "would have a perceptible and rational connection" with their
membership. In that case the question was whether a Credit Union was prohibited
from offering to its members for purchase a proportion of units in a unit trust
which owned certain premises on the ground that the members of the Credit Union
did not constitute "a section of the public". Brennan J said this at page
213:
"When an offeror contemplates the making of a particular offer to a
particular group, the question is whether or not that group is seen by a
reasonable person in the offerors position as a section of the public. The
answer to that question depends on whether there exists some particular
relationship between the offeror and the group whom he has in contemplation as
offerees which is apt to distinguish the group from a section of the public.
But when an antecedent relationship exists between an offeror and a group of
offerees and, by reason of that relationship, the offerees have a special
interest in the subject matter of the offer, there is ground for distinguishing
the group from the public.
Whilst the statutory and factual context in that case is very different from
this, it is nonetheless permissible, by analogy, to ask whether the owner or
custodian of the relevant premises or indeed any reasonable person would be
likely to distinguish the Lodge membership from "a section of the public" for
the purpose of determining those who would be entitled or permitted to enter or
use the premises. Because of the "antecedent relationship" between Lodge
members and the premises in question and because of the "special interest"
which Lodge members have in entering and using "their" premises, there is in my
view "ground for distinguishing" the Lodge members themselves from the public
or a section of the public. Such a determination would have to been seen as
resting on its own facts and circumstances and upon the special and exquisitely
private relationship existing between the subject premises and its exclusive
class of entrants or users.
In my view the premises of each respondent are not premises to which the public
or a section of the public is entitled or allowed to enter or use (whether for
payment or not), but are premises which are designed and occupied for a
specific purpose and which are entered and used only by a special category of
persons whose relationship with the premises is based on that special purpose
and in respect of which the public or any section thereof is normally
excluded.
I have also considered the question whether each respondent Lodge is a "club or
unincorporated association" (see s.27 of the Act). Whether or not each
respondent satisfies the statutory definition of "club" (see s.4), it is my
view that the question of access to these premises remains to be determined by
reference to s.23 of the Act rather then by reference to s.27. Phrases such as
"access to any benefit" which appear in s.27 and also in s.22 (Education) are
not intended to comprehend physical access to premises, which is dealt with
exclusively in s.23.
It may be useful to note that there are in the community a variety of "club"
premises designed to cater in a variety of ways for its members or permitted
entrants. These range from the most humble to the most sophisticated of
premises. Which premises will qualify for inclusion within the terms of s.23
and those which are to be excluded will fall to be determined on the facts and
circumstances of each case.
Nor in my view should the application of s.23(1) to any premises be allowed to
be unduly influenced by the terms of s.23(2) - the "unjustifiable hardship"
provision. One might argue for a construction of s.23(1) which has the widest
application to premises because relief or exemption on the ground on
unjustifiable hardship is always available under s.23(2). However the primary
function for the Commission in this case is to determine whether the particular
premises, the subject matter of the complaint, fall within the class of
premises defined by s.23(1). If they do and the lack of suitable access
involves discrimination against a person with a defined disability on the
ground of that disability then a finding of unlawfulness will be made. It is
only after that finding has been made that relief from such a finding is
available pursuant to s.23(2). It is important that the fact that such relief
is available in certain circumstances should not be allowed to determine the
question whether a finding of unlawfulness should be made in the first place.
The making of that finding will depend firstly on the proper classification of
the premises, that is, whether they are premises which the public or a section
of the public is entitled to or allowed to enter or use and secondly on the
question whether the access to the premises is such that a person is
discriminated against on the ground of that persons disability.
Finally it is necessary to deal with the fact that the premises of the
respondent United Grand Lodge of Queensland in Ann Street, Brisbane are
included in the Schedule to the Heritage Buildings Protection Act 1990 (Qld) as
a Heritage Building. The premises are identified in the Schedule as "Masonic
Temple of the United Grand Lodge, 309 Ann Street Brisbane." Neither that Act
nor the Queensland Heritage Act 1992 nor any other Heritage legislation of
which I am aware provides for any entitlement or implied approval to the public
or any section of the public to enter or use heritage buildings. This
legislation is concerned to provide for the conservation of Queensland's
cultural heritage and in order to achieve that objective it provides for the
process of entry of certain premises onto the Heritage Register. It also
governs the statutory constraints upon development applications in respect of
such premises. The legislation does not touch the question of the entitlement
or permission of the public or any section thereof to enter or use such
premises.
In my view the complaints against each respondent is not substantiated in view
of my conclusion that the premises of each respondent are not premises to which
the public or a section of the public is entitled or allowed to enter or use
(whether for payment or not).
Accordingly, pursuant to s.100(b) of the Act, the complaints are dismissed.