Maguire v SOCOG
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
No H 99/115
BRUCE LINDSAY MAGUIRE
SYDNEY ORGANISING COMMITTEE FOR THE OLYMPIC GAMES
REASONS FOR DECISION
THE HON WILLIAM CARTER QC
Location of Hearing: Sydney
Hearing date: 27 - 28 September 1999
Reasons for Decision: 18 October 1999
Appearances: J Svehla and R Alkadamani, instructed by the Public Interest Advocacy Centre, for the Complainant.
J Oakley of Counsel, instructed by Barker Gosling, for the Respondent.
The Sydney Organising Committee for the Olympic Games, better known as SOCOG, on or about 30 May 1999 made available to all Australians the document referred to in this matter as the ticket book, exhibit 2, so that those who sought tickets to one or other of the several events at the Sydney Olympic Games in September 2000 could apply for them. On the next day, 31 May 1999, the complainant, a totally blind person who has had neither sight nor light perception since birth and who desired to apply for tickets for himself and his two children, inquired of the SOCOG office as to how he could obtain a braille version of the ticket book.
Braille is the complainant's primary medium of literacy. His early schooling was delivered largely through this medium, as has been his later educational development. His inquiries led to discussions on the telephone between himself and SOCOG officers until, on 7 June 1999, at about 1.30 pm, he received a phone call from Mr Paul Reading, who identified himself as the Group Manager, Commercial at SOCOG and who informed the complainant that SOCOG would not be providing any information concerning the ticketing for the Olympic Games in braille. Mr Reading, according to the complainant, indicated that the reason for this was simply "costs and percentages".
On the same day, 7 June 1999, the complainant made a complaint to the Human Rights and Equal Opportunity Commission (the Commission), alleging that, because SOCOG had not and did not intend to make the ticket book or the contents of it available to him in braille, he was being discriminated against, contrary to the provisions of the Disability Discrimination Act 1992 (Cth), (the Act).
As will appear, the complaint at the hearing of the matter was dealt with primarily as one of direct discrimination, on the ground of his disability. Alternatively, it was alleged to be one of indirect discrimination, matters to which I will turn shortly. It is common ground that the complainant's vision impairment is a "disability" within the definition of that term in section 4 of the Act.
On 5 July 1999, the Acting Disability Discrimination Commissioner referred the complaint to the Commission for inquiry, pursuant to sections 76(1)(a) and 76(1)(c) of the Act. Various procedural issues arose thereafter. Another complaint in respect of the same issue was received by the Commission for inquiry from another vision-impaired person but who was not skilled in braille. It was originally intended to inquire into both complaints at the same hearing but in the course of later directions hearings, it was agreed to deal with Mr Maguire's complaint concerning the unavailability of the ticket book in braille separately and at the outset of the inquiry process.
In the course of the directions hearings, the respondent, SOCOG, had indicated its intention to raise for consideration the question, whether in the circumstances of the case the Commission had the statutory jurisdiction to receive, inquire into and make any determination in respect of the complaint. It is unnecessary to deal with the issue at any length because, by letter dated 24 September 1999, the solicitors for SOCOG advised that, for the purposes of the Commission's inquiry, it was prepared to concede that SOCOG was a trading corporation for the purpose of establishing the Commission's jurisdiction but that the respondent reserved its rights to argue the jurisdictional issue, should the matter come before the Federal Court.
I should add that I am satisfied that the Commission has the jurisdiction to deal with the complaint within the statutory process designed by the Act, not only on the assumption that SOCOG is a trading corporation for the purposes of section 12(9) of the Act, but also on the ground that the relevant sections of the Act which are relied upon to found the complaint can properly be described as falling within the various headings referred to in section 12(8) of the Act. I need say nothing more on the point.
I return to the ticketing process established by SOCOG for the Olympic Games. The so-called ticket book is at the core of that process. Given its wide distribution within Australia, the fact that it was likely that some hundreds of thousands of applications for tickets would be received and the fact that the events to be contested at the Games would be many and varied, the ticketing choices and the allocation of same was likely to be a process of some complexity. Hence, the body of detail which is apparent upon a perusal of the ticket book itself.
The ticket book was tendered as an exhibit. It can be expected that most Australians have some familiarity not only with its contents but also with the designed process required to be undertaken by any person who applied to SOCOG for tickets. It need hardly be emphasised that the Sydney Olympic Games in 2000 will be a spectacular event that will engage the attention of Australians, indeed, the whole world, for the duration of the Games.
The receipt of ticket applications, the processing of them, the allocation of ticketing in the predictable event that applications for some events would involve over-subscription and the like, including the marshalling of huge sums of money, was clearly a major undertaking for SOCOG. Detailed planning and the establishment of fixed terms and conditions were a necessary prerequisite.
It was therefore inevitable that the publication of the ticketing information and the process to be undertaken by intending applicants would when applying for tickets be necessarily detailed. By any reasonable standard, the application process can fairly be described as complex, in the sense that it necessarily required that an intended applicant be properly informed and thoroughly familiar with the large body of material contained in the ticket book. This could only be properly absorbed by giving close attention to a large body of information concerning various sports, particular sessions, individual events, times, dates, venues and the like, and, in the event that any applicant desired to see a variety of events in different sports at different venues, considerable planning was essential. It was also likely to be a time-consuming business.
A core requirement imposed by SOCOG was that a successful application for tickets necessarily depended upon the receipt of a valid application; that is, an application which complied in all material respects with the imposed requirements for the ticketing process. Not surprisingly, the statement in the ticket book by Mr Hollway, the chief executive of SOCOG, emphasised the need for any applicant to take care. He said, in his statement in the ticket book, inter alia, "So read thoroughly your official Olympic Games ticket book carefully to make the most of your choices."
It is impossible here to identify all of the difficulties that need to be negotiated if an applicant is to make a successful application. Clearly, that process imposes on any person two basic requirements: firstly, that care be taken in applying for tickets; and, secondly, that the process will take time. Mr Hollway, in his statement, emphasised the need for care. The second requirement, that of time, is emphasised by Mr Taylor, in his statement, on page 2, "Even though it takes time to fill in, this is a terrific opportunity to get the tickets you want."
The ticket book speaks for itself. It consists of 47 pages. The majority of it contains essential information. There is some advertising and promotional material which can be readily discarded. Briefly stated, the features of the ticket book for an intending applicant are:
(1) pages 6 to 7 set out a step-by-step guide on how to select and order tickets day by day or sport by sport;
(2) page 38 emphasises that incomplete or incorrectly completed forms will not be processed;
(3) on pages 8 and 11 there are maps or plans as to the location of venues;
(4) there is a detailed breakdown on a day-by-day basis of sessions in respect of each sport, detailing the nature of the session; the events; whether the event is a preliminary round, a quarter final, semi-final or final, the time; the venue (which is cross-referenced to the maps on pages 8 and 11); the category of seating; the number of tickets to be purchased and the price of each category;
(5) very importantly, because of the real chance of over-subscription in many events, there is a requirement for a first preference and alternatives, all of which need to be identified by the relevant session code;
(6) the book on each page provides "help tips";
(7) there is included a planning sheet at pages 9 and 10. This is an important document, designed to enable an applicant, in a preliminary way, to attempt to maximise the preferred choices and to make final decisions in relation to ticketing choices before committing oneself to the completion of the formal application;
(8) pages 38 and 39 set out in detail the conditions of the offer by SOCOG and page 39 details the offer of free transport to venues and related matters;
(9) the presentation of the various events, sessions, times, etcetera, is in detailed tabular form and is included from page 12 to page 36, both inclusive.
A person of average intelligence would need to allow considerable time to digest the information before making final and alternative choices. More importantly, the successful negotiation of the process necessarily requires a process of noting references on one page and cross-referencing to other pages. The information cannot be comprehended at one reading. Necessarily, one needs to absorb information provided at one part of the ticket book before finding and absorbing other information at a different page of the same book. Note-taking seems to be a necessary part of the process. Hence, the need for the planning sheets.
SOCOG has gone to commendable lengths to facilitate the ticketing process for those who seek tickets. It is hardly surprising that it has been necessary to publish the necessary information with the degree of detail provided and with apparent complexity, that is apparent on a first reading of the ticket book. It necessarily assumes that the successful completion of the process by any person will require care in identifying relevant details and will be time-consuming.
Before turning to the relevant provisions of the Act, it is necessary to note other personal details relating to the applicant and certain factual details of matters occurring subsequent to the lodegment of the complaint, on 7 June 1999.
The applicant, as has been noted, is an experienced braille reader; it is his primary literary medium. He holds a Bachelor of Arts Degree from Macquarie University, with majors in Linguistics and Philosophy. Almost all of the material used for his Degree was in braille - lecture notes, textbooks, examination papers, examination answers were all submitted in braille - and included subjects such as mathematics, statistics, mathematical statistics and mathematical logic. He has completed units of a Graduate Diploma in Computer Applications at Riverina-Murray Institute of Higher Learning and is currently engaged in a Master of Policy and Applied Social Research Degree at Macquarie.
Needless to say, he is highly proficient in braille and can read braille at a speed which equates with a sighted person's capacity to read print. During the hearing, there were unrehearsed occasions when this was demonstrable. Again, not surprisingly, his lifestyle is one of significant independence, which he obviously values. This is reflected not only in his significant academic achievements but socially and in the small business that he conducts.
I am satisfied that his was a genuine desire to participate with his children in the Sydney Olympics, as was his original request to SOCOG on 31 May 1999 for information as to the availability of the widely-distributed ticket book in braille. It has been pointed out above that, on 7 June 1999, Mr Reading of SOCOG informed the complainant that the ticket book was not and would not be made available in braille, and that the complainant thereupon complained to the Commission, under the Act.
The evidence of Mr John Basiljevac, the Program Manager, Ticketing at SOCOG, is clear that at no time did the SOCOG organisation, to his knowledge, contemplate the production of the ticket book in braille.
Shortly after the receipt of the complaint, it is clear, from the evidence of Ms Vanessa Briggs, Coordinator, Public Tickets at SOCOG, that the need to accommodate the requirements of vision-impaired people was recognised and discussed, and a decision was taken to establish a so-called Helpline for the visually-impaired. There was, at the time, an excess of lines available to the main SOCOG Call Centre and some of these were redesignated to the Helpline. This Helpline commenced operation on 17 June 1999. The official deadline for the receipt of ticket applications had, from the outset, been set as being 16 July 1999.
In the course of his earlier inquiries at SOCOG before the lodgement of the complaint, the complainant had spoken to Mr John Flower, a SOCOG officer, who informed him that, as a result of his (the complainant's) inquiries to SOCOG, he (Mr Flower) was in the process of obtaining a quote from the Royal Blind Society, New South Wales, for the production of the ticket book in braille. According to the complainant, Mr Flower told him that, subject to a satisfactory quote, SOCOG would "probably produce the ticket book in braille". In his conversation with Mr Reading on 7 June 1999, the complainant referred to his earlier conversation with Mr Flower but was advised that Mr Flower was apparently acting in excess of his authority. Mr Reading confirmed that the ticket book would not be available in braille.
The material made available to the Commission by the Royal Blind Society, New South Wales makes it clear that a quote for a braille edition of the ticket book was sought by SOCOG but such an edition was not produced. The evidence therefore makes it clear enough that subsequent to the complaint to the Commission, on 7 June 1999, the respondent, SOCOG, considered the issue raised by the complaint. It is a clear inference that the two options canvassed were, on the one hand, a braille edition of the ticket book and, on the other, a telephone Helpline.
The latter was the preferred option. Again it can be inferred that this option had the advantage of both convenience and cost. The relevant lines were already established and were merely redesignated for the purpose of establishing the Helpline. The production of a braille ticket book obviously involved a cost that, as Mr Reading had told the complainant on 7 June 1999, SOCOG did not propose to incur. It will be necessary to return to the cost of producing a braille ticket book at a later stage.
On 27 June 1999, the complainant received certain advice from Mr Fittler, another vision-impaired person, who had also lodged a complaint with the Commission under the Act. Mr Fittler, who was not proficient in braille, had sought from SOCOG a copy of the ticket book in electronic format. On 1 July 1999, the complainant, Mr Maguire, received from SOCOG two ASCII text files, and, on 12 July, a further two computer files, which purported to present the ticket book information in electronic format. I will later deal with the Helpline issue and with the presentation of the material in electronic format.
The Statutory Provisions
I turn to the provisions of the Act. It is the case for the complainant that the respondent, SOCOG, unlawfully discriminated against him in failing to provide the ticket book in braille, in that it was in breach of section 24 of the Act. Section 24 provides:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, 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 provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.
By section 4 of the Act, "services" is defined to include:
"(b) services relating to entertainment, recreation or refreshment";
"(f) services of the kind provided by a government, a government authority or a local government body".
For the complainant it is submitted that, inter alia, the publication and distribution to the members of the public in Australia of the ticket book was a relevant service comprehended by the definition of "services" in section 4 of the Disability Discrimination Act. Other related "services" are also identified by the complainant's case as falling within the definition and the section. I will deal with these shortly. It is an essential feature of the case that, so far as the complainant was concerned, because of his disabilities, those services were provided in a form which was discriminatory and therefore unlawful.
For the respondent it is submitted that the delivery of the information in the ticket book did not constitute the provision of services within the meaning of section 24. The ticket book, it is said, contains information, advertising material and some promotional material or propaganda. That constitutes neither goods or services or facilities. What SOCOG was providing, so it was submitted, was tickets to sessions at the 2000 Olympics. In that respect, there was no refusal by SOCOG to provide the same to the complainant, nor were there any terms or conditions attached by SOCOG to the provision of tickets to the complainant different from those on which tickets were made available to any other person. There is no provision in the Disability Discrimination Act, other than section 24, which the complainant identifies as the source of unlawful discriminatory conduct, based on SOCOG's admitted failure to provide to the complainant the ticket book in braille.
The complainant's submission identifies the services allegedly provided by the respondent in the circumstances of this case as follows: firstly, the publication and distribution to members of the public in Australia of the ticket book, so that members of the public in Australia could make application to purchase from SOCOG tickets to go to a particular session of the Olympic Games; secondly, the processing of valid applications made on the application form contained within the ticket book and the allocation of tickets for the relevant sessions; thirdly, the provision of all information reasonably necessary to enable an applicant to make a valid application for tickets for sessions at the Games, and to enable such applicants to maximise their chances of obtaining tickets for preferred sessions; fourthly, the provision of free public transport to and from most sessions for which an applicant is the successful purchaser of a ticket; fifthly, the provision to a valid applicant of the right to participate in the second-round offers, to the extent that the applicant's first choices are not available and the applicant's account is in credit.
I turn again to the definition of "services". The definition is drawn in a form which is inclusive. For example, "services", as defined, does not only include the provision of, for example, "entertainment" as a service but also services "relating to" entertainment. A person who, by acquiring a ticket for payment, so as to use his or her leisure or recreational time to watch the events at the Olympic Games, is engaged in entertainment or recreation. That is a service which is provided by the respondent, in which any person who acquires a ticket can participate. The ticketing process is an integral part of the service provided. Without a ticket, one cannot participate in the service.
Given the nature and extent of the entertainment services to be provided at the Olympic Games in Sydney in 2000, the provision of tickets to members of the public required of the respondent that it develop an efficient ticketing process and, at the same time, advertise it extensively, so as to ensure that all persons were properly informed on all matters necessary for and relating to their proposed participation in the entertainment provided by means of the Games program.
It seems to me that the publication of the ticket book and of the extensive information which it necessarily contains was a service "relating to" the entertainment to be provided by the Games spectacle. The other "services" allegedly provided by the respondent and relied upon by the complainant are ancillary to but essentially related to the provision of the ticket book and its contents. The processing of valid applications made on the ticket order form in the ticket book was a like service "relating to" the provision of the relevant entertainment. The other services relied on and set out above, including the provision of free public transport to a valid ticket holder, acquired through the process set out in the ticket book, are, in my view, "services relating to" the core service offered by SOCOG at the Games.
The section which relates to the provision of "goods or services" or "facilities" is drawn in broad terms. The definition of "services" is also drawn in a manner intended to be inclusive. The terms "includes" and "relating to" in the definition (section 4) suggest an interpretation that is broad and extensive, rather than one that is limited and narrow. I am satisfied that, in publishing and distributing extensively to members of the public in Australia the ticket book, exhibit 2, without reference to which and unless one had access to it, paid admission to the Games was, for all practical purposes, impossible, and in the manner in which it later dealt with applications for admission, the respondent, SOCOG, was providing "services" of essential relevance to the "entertainment" provided by the Games, the provision of which and the organisation of which was the very raison d'être for SOCOG's existence.
I have concluded that, in the provision of the ticket book, the respondent provided services within the meaning of the definition and of section 24 of the Act. It is also clearly arguable that the same conclusion is available if one had regard to the reference to "recreation" in subparagraph (b) of the definition and to paragraph (f) thereof.
Whilst the original complaint, written by the complainant on 7 June 1999, referred to his allegation that he was the victim of indirect discrimination, the case was argued by counsel on the basis that the facts supported a finding of direct discrimination or, in the alternative, indirect discrimination.
Direct discrimination is traditionally thought to have been defined by section 5(1) of the Disability Discrimination Act. It reads:
"For the purposes of this Act, a person - ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability".
Section 6 defines indirect discrimination in these terms:
"For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply".
The first question therefore is whether the respondent, SOCOG, discriminated against the complainant in the manner in which the ticket book and the information therein and the ancillary services referred to were provided by SOCOG to the complainant.
In determining whether the alleged discrimination was comprehended by section 5 of the Disability Discrimination Act, the primary inquiry is whether the respondent treated or proposed to treat the complainant, on the ground of his disability, less favourably than in the same circumstances it treated or proposed to treat a person without the disability.
The circumstances in which the respondent treated or originally proposed to treat the complainant and those persons in Australia who are not so disabled were the same. The form of the ticket book, its manner of distribution, the requirements that it imposed for valid ticketing were, in all material respects, the same for all persons. The manner in which the relevant services were provided or delivered is apparent on the face of exhibit 2, the ticket book. Both classes of individuals, the blind complainant on the one hand and those members of the public who were not so vision-impaired on the other, were presented with the same material, in the same form and made subject to the same terms and conditions if they sought tickets to the Olympic games.
The crucial issue for present purposes is whether, in the circumstances that prevailed relating to the ticketing process for seats at the Olympic Games, SOCOG treated him less favourably than a sighted person because of his disability.
By providing the relevant service in print form and not in braille, it meant that, ipso facto, the complainant was effectively denied access to the ticket book and the consequential services provided by the respondent, and, accordingly, the complainant was denied the opportunity to make a valid application for tickets to the Olympic Games. He was unable to read the document. He could only complete a valid application form if some other person were to inform him of the contents in a manner that was comprehensible to him, so that he could make the appropriate decisions and complete the necessary form. Unless the complainant could access the particular information, having regard to the manner and form in which it was presented to him, and thereby be properly informed so that he was able to complete the application form to validly acquire tickets, he was being treated less favourably, because of his blindness, than was a sighted person without the disability.
The respondent, however, would contest the allegation of less favourable treatment on three bases: firstly, as was said by Mr Reading to the complainant, he (the complainant) could have had somebody read the ticket book to him; secondly, on or after 17 June 1999, he had access to the telephone Helpline established by SOCOG, and the assistance of a SOCOG officer to enable him to access the material, so that he was able to provide to SOCOG a valid application form consistent with his decided choices; and, thirdly, from on or about 1 and 12 July 1999, he had access to the required information in electronic format.
In respect of the first of these three alternative submissions, it is the fact that, upon receipt of the ticket book, the complainant enlisted the aid of his sister to inform him of its contents. His evidence is that that process was unsatisfactory and unsuccessful for a number of reasons. It was a very tedious and time-consuming process. The mere reading of the written contents of the document was said to require several hours of reading. More importantly, however, it stands to reason that attempting to access the required information in that way presented obvious difficulties that were effectively insurmountable. The form of the material, for example the detailed tabulation of the relevant events and associated critical information, if read aloud, and unless seen at the time of its being read, would be largely incomprehensible. Furthermore, such an oral presentation would require an extraordinary feat of memory if the information was to be usefully retained.
It was precisely these difficulties which rendered practically useless and incomplete the attempt by the complainant's sister to read to him the contents of the document. I accept his evidence, that, for practical reasons, the attempt was abandoned after some few hours. Even were it possible for the assisting person and the complainant to have time available as a matter of mutual convenience, it is obvious that, at best, it would take many hours of supplementary explanation of the document's contents. This assumes again the capacity of the complainant to fully comprehend and, more importantly, retain the spoken information and explanation. In short, it would be theoretically possible but only with considerable assistance, assuming the assistance was reasonably available.
I cannot avoid the conclusion that, to present the information to the complainant in that form and to require that level of assistance, even assuming it to be reasonably successful, was to treat him less favourably than the sighted person who could access the material without assistance at his or her leisure, by using that person's own resources and capacities to engage in the essential process of referencing and cross-referencing from page to page and thereby ensuring the completion not only of a valid application complete with alternatives but one which reflected in all respect the final decided choices of the person concerned.
Secondly, the provision of the Helpline, on and from 17 June 1999, is subject to the same defects. The process is necessarily required to be undertaken by telephone. On the other hand, it can be assumed that the SOCOG officer would be a person with a comprehensive knowledge of the contents of the ticket book and better equipped to make explanations. It was suggested that the complainant could have identified to the Helpline officer his preferences and that the latter could thereby have facilitated the completion of a successful application that reflected the wishes of the complainant. That suggestion, however, begs the question as to how a person in the position of the complainant could acquire any primary information in the ticket book which could then be perfected or developed by the officer in the course of a telephone conversation, since he would have been denied access to that information because of his disability. The dilemma inherent in this proposal is that, if he could have accessed the information for the purpose of maximising his intended use of the Helpline, he would not have needed to use the Helpline. The evidence of the complainant in this respect, on this issue, was clear and persuasive. It is supported by paragraph 22 of the statement of Ms Gillian Gale, an experienced and well-regarded expert in literacy and related matters concerning the blind. She is associated with the Royal Victorian Institute of the Blind and gave helpful evidence by telephone, which I accept. It seems to me that, even without the assistance of evidence from a person of Ms Gale's admitted expertise, logic and commonsense dictates that any attempt to inform this complainant adequately, by any audio process is necessarily imperfect and constitutes, in his case, less favourable treatment than that afforded to a person without the disability.
The third alternative proposed was based on the delivery to the complainant on 1 July and 12 July 1999, four days before the expiry date for tickets, of the information in electronic format. In his statement (paragraph 66 to 70, both inclusive) and in his evidence which I accept, the complainant recounted the very real and practical difficulties which he encountered in attempting to access the information in electronic form. The complainant is skilled in computer technology and its use. He has access to what is termed "refreshable braille", whereby text is provided electronically and the text on the computer screen is then converted to braille, but this facility only permits the presentation to the braille reader of each line at a time. The vital information in the ticket book is presented in tabular form. The format in which it was presented to the complainant was deficient for a number of reasons outlined in his statement and evidence. Not the least of these difficulties meant that that line scrolled off the right-hand edge of the screen, making it difficult to comprehend when the material was presented in braille form on the pad.
One has only to refer back to the nature and extent of the information in the ticket book, which must necessarily be digested for informed decision-making and the preparation of a valid application, to realise the difficulties inherent in an oral presentation or one provided by electronic means if an inadequate format is adopted.
I am satisfied that the complainant was, in practical terms, precluded from having a sufficiently reasonable degree of access to the information in the ticket book where he could be adequately informed so as to permit of his making the desired choices and thereby making a valid application. In the result, he was precluded from applying for tickets. On the other hand, the presentation of the material in braille would have meant that the complainant was in an equivalent position with that of a sighted person.
I noted earlier that the complainant can read braille at the same speed and with the same facility as a sighted person can read print. The provision to him of a ticket book in braille would have meant that he could have undertaken the same leisurely and ordered approach as would a sighted person in perusing and digesting the information in the ticket book and thereby have been able to make deliberate choices necessary for a valid application for tickets.
Section 24(2) of the Act relieves against a finding of unlawful discrimination:
"If the provisions of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available".
Section 11 of the Disability Discrimination Act states what needs to be taken into consideration when considering the issue of unjustifiable hardship. In asserting a claim of unjustifiable hardship, the respondent has raised two major issues, firstly, that the proportion of blind persons in the community who use braille is relatively small and, secondly, the cost that would be involved in providing the ticket book in braille. In relation to the first point, the evidence is that there are in Australia approximately 17,000 blind persons of whom 1300 use braille.
Ms Gale explained that a significant number of blind persons in the community lose their sight when they are elderly and as a result of degenerative changes and ill health. On the other hand, braille users are generally those who are born blind and who acquire skill in braille in the course of early education. The submission is that it would constitute unjustifiable hardship to require the preparation of the ticket book in braille for such a minuscule proportion of the population.
The question of the cost of providing the ticket book in braille was dealt with by the evidence of Ms Linley Wallace, the General Manager of Library and Information Services for the Royal Victorian Institute of the Blind. I accept generally the content of her statement and her evidence which also was given by telephone. Paragraphs 19 and 20 of her statement are her reasonable estimates of converting the ticket book from print text to braille. The file preparation is by far the most difficult and expensive part of the process. This involves the complete conversion of the text from print and the preparation of materials such as tactile graphics so as to permit its production into braille form. Her estimated cost of $1150.00 for this is, in her view, reasonable and represents a commercially viable quote. The conversion to 230 standard braille pages would reasonably cost $85.10 per copy. In the result, the production of, say, 200 copies of the ticket book in braille would have cost $17,250.00 or thereabouts. It is submitted for the complainant that such a cost, if incurred, is minuscule in terms of the SOCOG budget. The SOCOG budget for the year ended 30 June 1998 was for a total net revenue of $2.597 billion and a total expenditure of $2.567 billion, leaving a surplus of $30 million. Similar figures are to be found in the 1999 budget.
It is noted that the contingent expenditure provided for in the 1999 budget was fixed at $142.7 million. The cost of printing and distributing the ticket book was in fact $7.18 million. In the context of the budgets and the cost of printing and distributing the ticket book, the question remains as to whether in terms of increased costs, the expenditure of $17,500 on the preparation of, say, 200 copies in braille would constitute an unjustifiable hardship for the respondent. I would think not.
But section 11 requires the consideration of other matters also. The provision of the ticket book in braille would have benefited the complainant and others similarly disabled. It is said that only three blind persons accessed the help line. That evidence is equivocal. Whether it was because of the difficulties inherent in the oral presentation of the information or for some other reason, one can only speculate. The benefit to a section of the blind community was obviously considerable and at a relatively small cost if the ticket book had been produced in braille.
On the other hand, the braille production of the ticket book, if well publicised, would probably have benefited the sale of tickets. A dominant issue on this point, in my view, is the fact that the complainant and perhaps others similarly disabled were effectively denied access to the ticketing process. I have referred to the financial capacity of SOCOG to bear the additional expense. I am satisfied that in the circumstances the respondent cannot properly avoid an adverse finding of discrimination on the ground that the provision to the complainant of a ticket book in braille would have constituted unjustifiable hardship within the meaning of section 11 of the Act.
I turn to the alternative assertion of indirect discrimination in terms of section 6 of the Act. It seems to me that were it necessary, a finding of indirect discrimination could be properly made. In the circumstances, the "requirement or condition" with which the complainant had to comply was that he be able to read print. He could not comply with that requirement or condition. It was, on the other hand, one which a substantially higher proportion of persons without this disability could have complied with. Furthermore, it was not in the circumstances of the case a reasonable requirement or condition.
For the complainant, a man of mature age, it is unlikely that he will again have an opportunity to attend the Olympic Games. It is said that the opportunity is somewhat unique. In my view, it was not reasonable to require him to comply with a requirement or condition that the ticketing facility be able to be accessed only by those who can read print.
In my view, the failure of the respondent to produce to the complainant a ticket book and its contents in braille constituted, because of his disability, less favourable treatment in the same circumstances than that afforded by the respondent to persons without the disability. Were it necessary to so find, I would also conclude that the alleged discrimination was comprehended by section 6 of the Act.
Having regard to the terms of section 103 of the Act, I turn to the form of relief. In terms of section 103(1)(b)(i) I find that the complaint has been substantiated and I make a declaration that by failing to provide the ticket book to the complainant in braille, the respondent unlawfully discriminated against the complainant in breach of section 24 of the Act. The consequential relief which ought to become available to the complainant, as a result of that declaration, raises practical difficulties which I now seek to address.
As a result of the discriminatory act found, the complainant could not and did not apply for tickets. According to the evidence of Mr John Bosiljevac, referred to earlier, as a result of the initial round of applications all sessions of triathlon, cycling, artistic and rhythmic gymnastics, the opening and closing ceremonies, swimming and the equestrian three-day event are among the 244 sessions of the Sydney 2000 Games which have been over-subscribed and balloted in the first round of ticket orders.
However, because Australians ordered widely, tickets still remain available for 25 of the 28 sports, including 60 gold medal sessions. Individuals who have already ordered tickets will shortly receive a letter outlining the tickets that they have successfully purchased, an indication of any credit balance in their SOCOG account and a booklet outlining the classes of tickets and sessions in which tickets remain available. From 8 October 1999 until 22 October 1999 these people will have an exclusive opportunity to purchase additional tickets on a first-in first-served basis.
Pausing there. It would be consistent with the first declaration to make the further declaration, pursuant to section 103(1)(b)(ii), that the respondent provide to the complainant forthwith the booklet which is to be made available to those who made original applications and which outlines the classes of tickets and sessions in which tickets remain available. Again, consistent with my findings, that booklet should be made available in braille. However, there are obvious practical difficulties, because that offer will be available only between 8 and 22 October 1999. It is unlikely that the respondent could provide a booklet in braille by 8 October 1999, one week from today.
Besides, the Commission ought to be reluctant to make a declaration, the practical effect of which might be seen to impose obligations on third parties of whose circumstances the Commission has no information. On the other hand, the respondent should not be able to be advantaged by its own default. Had the respondent made the original ticket book available in braille, the complainant could have made an original application and thereby have become eligible to receive the second booklet in braille. That, I expect, is now practically impossible.
Therefore, I propose to make a declaration in these terms, in respect of which there are also obvious difficulties, but which I will address shortly. Pursuant to section 103(1)(b)(ii) of the Act, I make a declaration that the respondent provide to the complainant forthwith the second booklet and that prior to 8 October it conference with the complainant and inform him as best it can of the classes and sessions for which tickets remain available and thereupon assist him in furnishing to the respondent an application in respect of the remaining tickets by 8 October 1999.
In making the declaration in those terms, I have in mind the following matters:
1. The remaining tickets are to be made available on a first-in first-served basis;
2. The complainant should be put in as good a position as is possible, given the finding that he was excluded from the original ticketing process because of unlawful discrimination;
3. While I am satisfied that an oral presentation of the original information could not have accommodated the complainant's disability, the circumstances are now materially different. The choices are much more limited. No alternative choices are proposed. The complainant has, during the last three months, had to focus on issues relating to games ticketing and from numerous discussions and this hearing, he seems to have a better appreciation of the ticketing process and what is involved in it. The process is now much simpler, given that the allocations will be on a first-in-first-served basis;
4. It is incumbent on the respondent to proactively attempt to ensure that the complainant be given the best possible opportunity to participate in the process between 8 and 22 October 1999.
Mr Bosiljevac's evidence also provides as follows. From 23 October 1999 until shortly prior to 3 December, all Australians will have a further opportunity to purchase tickets, regardless of whether or not they have already made an application for tickets. Again, this opportunity will be on a first-in first-served basis. A supplementary booklet detailing the sessions in which tickets are still available will be made available to the general public. SOCOG presently has no plans to produce the supplementary ticket book in braille. On 3 December, the ticket-ordering process will cease and all ticket allocations will be converted into physical seat allocations. All tickets purchased prior to that date are allocations for tickets rather than actual physical seats. Between 3 December 1999 and early February 2000, all allocations will be physically translated into seats.
Consequently, I make the further declaration that, should the complainant desire to engage in the final ticketing process and the respondent is unable to provide to the complainant the third booklet in braille by 23 October, the respondent provide to the complainant immediately it becomes available the third booklet and that on or about 23 October 1999 it again conference with the complainant and inform and assist him in the same terms as are set out in the second declaration above. In my view, this is not a case in which monetary compensation should be assessed.