FEDERAL MAGISTRATES COURT OF AUSTRALIA
No BZ341of 2002
ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC
HERVEY BAY CITY COUNCIL
OUTLINE OF SUBMISSIONS OF THE ACTING DISABILITY DISCRIMINATION COMMISSIONER AS AMICUS CURIAE
A. SUMMARY OF SUBMISSIONS
1. The present application does not specify the sections of the Disability Discrimination Act 1992 (Cth) (‘the DDA’) relied upon in making out the claim of unlawful discrimination. The Acting Disability Discrimination Commissioner (‘the Commissioner’) makes these general submissions on the assumption that the applicant characterises the alleged discrimination as indirect discrimination (as defined by s 6) in the manner in which access to premises is provided by the respondent (as made unlawful by s 23).
2. As these submissions are being made prior to the hearing of the evidence, they are of a general nature. They do not seek to address all issues relevant to the present proceedings but only, consistent with the role of an amicus curiae, particular issues where the Commissioner believes that he may be able to assist the Court. The Commissioner may, with the leave of the Court, seek to supplement these submissions with brief oral submissions at the conclusion of the evidence.
3. The submissions of the Commissioner can be summarised as follows:
(a) In a case such as the present, relating to access to premises, the Court should first determine whether or not there has been indirect discrimination as defined by s 6 of the DDA. The onus of proving that there has been discrimination is on the applicant. In deciding this issue, the Commissioner submits that:
(i) in determining whether or not an applicant can ‘comply’ with a requirement or condition for the purposes of s 6(c), the Court should look beyond ‘technical’ compliance to consider matters of practicality and reasonableness; and
(ii) in assessing ‘reasonableness’ for the purposes of s 6(b), all relevant factors should be considered.
(b) If the Court finds that discrimination is made out, it should then determine whether or not the discrimination is made unlawful by s 23(1) which prohibits discrimination in the manner in which access to premises is made available. The onus of proving that there has been unlawful discrimination is on the applicant.
(c) The Court should then proceed to consider the issue of ‘unjustifiable hardship’ under ss 11 and 23(2), if raised by the respondent. The onus of proof in relation to unjustifiable hardship is on the respondent.
(d) The Building Code of Australia (‘the BCA’) and the Australian Standards have no direct legal effect under the DDA.
(e) The BCA and the Australian Standards are, however, relevant and persuasive in determining the following issues:
i) Whether or not a requirement or condition is ‘reasonable’ in the context of the definition of indirect discrimination under s 6 of the DDA; and
ii) The test of ‘unjustifiable hardship’ under ss 23(2) and 11 of the DDA.
4. Section 6 of the DDA defines indirect discrimination as follows:
6 Indirect disability discrimination
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.
5. Section 23 of the DDA makes discrimination unlawful in the area of access to premises in the following terms:
23 Access to premises
(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) in the terms or conditions on which the first mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c) in relation to the provision of means of access to such premises; or
(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the first mentioned person is prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use such facilities.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person’s disability in relation to the provision of access to premises if:
(a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and
(b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.
6. Premises are defined by a broad and inclusive definition contained in s 4 of the DDA as follows:
(a) a structure, building, aircraft, vehicle or vessel; and
(b) a place (whether enclosed or built on or not); and
(c) a part of premises (including premises of a kind referred to in paragraph (a) or (b)).
7. Section 11 of the DDA states the following in relation to ‘unjustifiable hardship’:
For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities—an action plan given to the Commission under section 64.
C. ‘PREMISES’ THE SUBJECT OF THE APPLICATION
8. The application relates to three areas:
(a) The ramp to the outdoor entertainment area at the rear of the Burrum Heads Community Centre (‘the Community Centre ramp’);
(b) The washbasins at the Scarness Foreshore Development (‘the Foreshore toilets’) and Freedom Park (‘the Park toilets’); and
(c) The picnic tables at the Scarness Foreshore Development (‘the picnic tables’).
9. In the submission of the Commissioner, the areas the subject of this complaint all fall within the definition of ‘premises’ for the purposes of s 4 of the DDA.
D. GENERAL APPROACH TO STATUTORY CONSTRUCTION UNDER THE DDA
10. In general, when construing legislation designed to protect human rights, the courts have a special responsibility to take account of and give effect to the purposes and objects of the legislation. 
11. Further, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object; s.15AA Acts Interpretation Act 1901 (Cth). This approach does not only apply in circumstances where there is an ambiguity or inconsistency in the Act. 
12. The stated objects of the DDA include: ‘to eliminate as far as possible, discrimination against persons on the ground of disability in the areas of … access to premises’ (s 3, emphasis added).
13. To give effect to this object the Court should construe broadly those provisions which make unlawful discrimination against persons on the ground of disability, including those provisions defining discrimination for the purposes of the DDA. Conversely, exemptions and other provisions which restrict rights should be construed narrowly. 
14. In undertaking a task of statutory interpretation, the Court should also apply the principle of the common law that a statute is to be interpreted and applied, so far as its language admits, in a manner which is consistent with established rules of international law and which accords with Australia’s treaty obligations.  That approach is not limited in its application to ambiguous statutory provisions.  Rather, wherever the language of a statute is susceptible to a construction which is consistent with the terms of the relevant international instrument and the obligations which it imposes on Australia, that construction must prevail. 
15. Most relevant to the present case is the Declaration of the Rights of Disabled Persons (‘the Declaration’)  to which Australia is a party, which provides for:
(a) The inherent right of people with disabilities to respect for human dignity and the right to ‘enjoy a decent life, as normal and full as possible’ (Article 3);
(b) An entitlement to measures designed to enable the self-reliance of people with disabilities (Article 5); and
(c) An entitlement to have the special needs of people with disabilities taken into consideration at all stages of economic and social planning (Article 8).
E. STATUS OF THE BCA AND AUSTRALIAN STANDARDS UNDER THE DDA
16. Neither the BCA nor the Australian Standards have any legal status under the DDA.  They are to be distinguished from ‘disability standards’ as provided for by s 31 of the DDA.
17. A breach of the BCA and/or Australian Standards will not necessarily result in there being unlawful discrimination under the DDA. Conversely, the fact of compliance with the BCA and/or Australian Standards will not be, of itself, a defence to a claim of unlawful discrimination under the DDA. Indeed, the Australian Building Codes Board has acknowledged inconsistencies between the BCA and the DDA; see Annexure MS1 to Affidavit of Michael Small, 5 May 2003, para 10.
18. There are a number of reasons for this “gap” between the requirements of the BCA and the Australian Standards and the DDA. Most obviously, the BCA and Australian Standards are designed to meet a variety of needs and satisfy a variety of concerns, only one of which is access to premises by people with disabilities. In addition, those documents are limited in their scope – they do not cover all aspects of buildings or the built environment more generally. Furthermore, even where the BCA and Australian Standards set standards for certain design features, compliance will not guarantee access for all persons with disabilities. As outlined in Annexure MS1 to the affidavit of Michael Small dated 5 May 2003, the Australian Standards have been designed to suit the physical access needs of “at least 80% of the most able in the disability group most affected” by a particular design feature. Whether the satisfaction of such a standard is, in the circumstances, “reasonable” for the purposes of the DDA is something that a Court will need to determine on a case-by-case basis.
19. The Commissioner submits, however, that as standards developed by technical experts in building, design and construction, the BCA and the Australian Standards are relevant and persuasive in determining the following issues:
(a) Whether or not a requirement or condition is ‘reasonable’ in the context of the definition of indirect discrimination under s 6 of the DDA; and
(b) Whether or not any hardship faced by the respondent in effecting an alteration to the premises the subject of the complaint would be ‘unjustifiable’.
F. INDIRECT DISCRIMINATION
(a) ‘Compliance’ with a requirement or condition
20. In determining whether or not a person is able to ‘comply’ with a requirement or condition within the meaning of s 6(c), the Court should consider issues of practicality and reasonableness. It is not enough that an applicant can physically or technically comply with a requirement or condition; Mandla v Dowell Lee  2 AC 548 (at 565-66), Sluggett v Human Rights and Equal Opportunity Commission (2002) EOC ¶93-234 per Drummond J at -.
21. In Travers v State of New South Wales  FCA 1565 it was accepted by the applicant that she would have been able to comply technically with a requirement or condition related to use of toilets, but that her compliance would have resulted in distress and embarrassment. In dismissing an application by the respondent for summary dismissal, Lehane J (at ) held that it was appropriate to adopt a ‘reasonably liberal’ interpretation of the expression ‘is able to comply’ such that it was not necessary for an applicant to demonstrate inability to ‘literally’ comply.
22. Such an interpretation is supported by the purpose and objects of the DDA (set out in para 12 above) as well as the ‘inherent right to respect for [the] human dignity [of disabled persons]’ as contained in Article 3 of the Declaration (see para 15 above). It would incompatible with respect for human dignity to find that a requirement or condition which compromised the dignity of people with disabilities, but with which they could ‘technically’ comply, was beyond the scope of the definition of discrimination in s 6 of the DDA.
23. In general, when considering whether or not a requirement or condition is ‘reasonable’, all the circumstances of the case should be considered, including the perspective of the respondent; Waters v Public Transport Corporation (1991) 173 CLR 349 (‘Waters’) per McHugh J at 411 cited with approval in Sluggett v Human Rights and Equal Opportunity Commission (2002) ¶EOC 93-234 per Drummond J at 46-47.
[Paragraphs 24-26 of the Commissioner's submissions were withdrawn following the decisions of the Federal Court in Clarke v Catholic Education Office (2003) 202 ALR 340, - (Madgwick J) and QBE Travel Insurance v Bassanelli  FCA 396, - (Mansfield J) in which the Court held that 'reasonableness' in the context of the DDA required an examination of all of the circumstances of the case.]
27. While compliance with the performance requirements of the BCA and/or Australian Standards will not necessarily satisfy the requirements of the DDA, the Commissioner submits compliance or non-compliance with the standards set out in those documents will be an important factor in determining the ‘reasonableness’ of any requirement or condition that is imposed on a person with a disability.
28. The Commissioner submits that a failure to comply with the performance requirements contained in the BCA and/or the Australian Standards will be a significant factor suggesting the unreasonableness of a requirement or condition that a person with a disability access and/or use the premises in that form.
29. It is noted that the scope of the BCA and Australian Standards is limited to certain aspects of the built environment. For those aspect of the built environment falling beyond the scope of the BCA and Australian Standards, the Commissioner nevertheless submits that the standards contained in the BCA and the Australian Standards constitute a useful guide to what are appropriate design features within the broader built environment and hence what may be considered ‘reasonable’ in a given situation.
30. In the case of the picnic tables, for example, they would appear to fall beyond the scope of the BCA and the Australian Standards. However, the provisions of Clause 15 of AS1428.1  relating to seating in places of public entertainment may be useful in determining the appropriate dimensions for seating spaces and paths of travel for other situations involving fixed seating, as in the case of the picnic tables.
31. Other specific factors relevant to the issue of reasonableness will include the number of people adversely affected by a requirement or condition which is said to be discriminatory; Francey & Another v Hilton Hotels of Australia Pty Ltd (1997) ¶EOC 92-903 per Innes Cr at 77,451.
32. Issues of the dignity and self-reliance of people with disabilities in access to, and use of, premises will also be relevant, consistent with the purpose and objects of the DDA and the rights protected by the Declaration.
G. UNJUSTIFIABLE HARDSHIP
33. The Commissioner submits that the following general principles have been developed in understanding the concept of ‘unjustifiable hardship’ under the DDA, and should be applied in the present case:
(a) The appropriate approach is first to determine whether or not the respondent has discriminated against the complainant and then determine whether or not the respondent is able to make out the defence of unjustifiable hardship; Sluggett v Human Rights and Equal Opportunity Commission (2002) ¶EOC 93-234 per Drummond J at  – ; Francey & Another v Hilton Hotels of Australia Pty Ltd (1997) ¶EOC 92-903 per Innes Cr at 77,452; Finney v Hills Grammar School  HREOCA 14 per Innes Cr at 49.
(b) The onus is on the respondent to establish the defence; Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481 at 491-492; Scott & Anor v Telstra Corporation Ltd (1995) EOC ¶92-717, per Wilson P at 78,401; Finney v Hills Grammar School at 49; see also House of Representatives Hansard, 26 May 1992 at 2753-2754 (Brian Howe, Minister for Health Housing and Community Services).
(c) The complainant may have an evidentiary role to play in assessing ‘unjustifiable hardship’. Determining exactly what accommodation a complainant will require to avoid discriminating against them and how it will best be achieved is an interactive process; Finney v Hills Grammar School per Innes Cr at 50.
(d) Implicit in the concept of unjustifiable hardship is that some hardship will be justifiable. The concept of unjustifiable hardship ‘connotes much more than just hardship’; Finney v Hills Grammar School at 52, affirmed on review in Hills Grammar School v HREOC& Others (2000) 100 FCR 306 at , Francey & Another v Hilton Hotels at 77,453.
(e) The financial circumstances of the respondent are important, but must be considered in the context of the DDA’s objects – the financial burden may be justifiable; Francey & Another v Hilton Hotels at 77,453.
(f) The group of ‘any persons concerned’ to whom a benefit or detriment may apply extends beyond the immediate complainant and respondent; Scott & Anor v Telstra at 78,401, Francey & Another v Hilton Hotels at 77,452. It is appropriate to consider, for example, the families of people with disabilities who may gain a benefit from access; Cooper v Holiday Coast Cinemas  HREOCA 32 per Keim Cr at 6. Similarly, it is appropriate to consider hardship suffered by shareholders of a company, employees and other customers, including hardship that may be faced if an order were to force closure of a facility; Cooper v Holiday Coast Cinemas at 6.
(g) Possible hardship from other potential and unproved liabilities are not to be considered; Scott & Anor v Telstra at 78,402.
34. As in the case of ‘reasonableness’, the Commissioner submits that compliance or non-compliance with the BCA and/or the Australian Standards will be an important factor in determining whether any hardship is ‘unjustifiable’.
35. In particular, in circumstances where a respondent has constructed premises in breach of the BCA and/or the Australian Standards applying at the time of construction, this would be expected to weigh in favour of a finding that hardship imposed by a requirement to alter those premises is justifiable.
36. Furthermore, where a respondent has constructed premises in circumstances where it knew or should have known that those premises would give rise to a breach of the DDA (given, for example, resources that are available to assist in compliance such as the Commissioner’s Advisory Notes) , this would be expected to weigh in favour of a finding that hardship imposed by a requirement to alter those premises is justifiable.
Human Rights and Equal Opportunity Commission
5 May 2003
1. Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh J at 22-23, per Gaudron J, at 27 per Toohey J, at 39 per Gummow J and 58 per Kirby J; X v Commonwealth (1999) 200 CLR 177 at 223 Kirby J; and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J
2. Mills v Meeking (1990) 91 ALR 16 at 30-31, per Dawson J
3. X v Commonwealth (1999) 200 CLR 177 at 223 per Kirby J; Qantas Airways Limited v Christie (1998) 193 CLR 280 at 333 and footnotes 168-169, per Kirby J; Gardner v All Australian Netball Association Ltd  FMCA 81,  and -.
4. Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. See also Maxwell on the Interpretation of Statutes (7th Ed, 1929) at 127; Pearce, Statutory Interpretation In Australia (5th Ed, 2001) at [5.14].
5. See eg Brown v Classification Review Board (1998) 154 ALR 67 at 78 per French J; Secretary of State, Ex Parte Simms  2 AC 115 at 130 per Lord Steyn, 131 per Lord Hoffman. Even if the principle is confined to ambiguous statutory provisions, the concept of ‘ambiguity’ in this context is construed broadly: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.
6. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J. See also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ.
7. GA Res 3447 (XXX), UN GAOR, 30th sess, Supp No 34, UN Doc A/10034 (1975). See also schedule 5 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
8. It is noted that s 47(2) of the DDA provides an exemption for acts done ‘in direct compliance with a prescribed law’. No laws relevant to the present case (such as State laws which may regulate buildings or facilities in public places) are ‘prescribed laws’ for the purposes of the DDA; see reg 2A and Schedule 1, Disability Discrimination Regulations 1996 (Cth).
9. Similarly, the position under the DDA differs from that under the RDA or SDA which do not contain the concept of ‘unjustifiable hardship’; see for example Department of Foreign Affairs and Trade v Styles & Another (1989) 23 FCR 251. Note further that s 7C of the SDA places the onus on the respondent to show reasonableness, unlike under the DDA, and s 7B of the SDA also provides for matters to be taken into account in determining ‘reasonableness’, similar to the manner in which ‘unjustifiable hardship’ is defined under the DDA.
10. See Attachment C to Annexure MS1 to the Affidavit of Michael Small dated 5 May 2003.
11. See Attachment D to Annexure MS1 of the Affidavit of Michael Small dated 5 May 2003.
Last updated 7 July 2004.