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[2026] ACAT 39
ACT Civil and Administrative Tribunal
2026-07-13
Original judgment source is linked above.
Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT DT 6/2025 v DIRECTOR-GENERAL, TRANSPORT CANBERRA AND CITY SERVICES (Appeal) [2026] ACAT 39
AA 90/2025 (DT 6/2025) Catchwords: APPEAL – discrimination – where appellant claims to have tripped over a raised paver in a public space – whether appellant tripped or fell – relevance to finding of indirect discrimination whether appellant tripped – whether alternative pathways meant no condition or requirement for the purposes of indirect discrimination – whether condition or requirement reasonable in the circumstances – no material error
Legislation cited: Disability Discrimination Act 1992 (Cth) s 23 Discrimination Act 1991 ss 7, 8, 19, 70, 74, Dictionary (‘premises’)
Cases cited: Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 Applicant DT 6/2025 v Director-General, Transport Canberra and City Services [2025] ACAT 66 Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56 Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116 He v Qin & Ors [2021] ACAT 129 Phillips v Australian Capital Territory [2021] ACAT 22 Travers v New South Wales [2001] FMCA 18 Waters v Public Transport Commission [1991] HCA 49
Appeal Tribunal: Presidential Member D Stewart
Date of Orders: 2 July 2026 Date of Reasons for Decision: 2 July 2026 Date of Publication: 13 July 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 90/2025
BETWEEN: APPLICANT DT 6/2025 Appellant AND: DIRECTOR-GENERAL, TRANSPORT CANBERRA AND CITY SERVICES Respondent
APPEAL TRIBUNAL: Presidential Member D Stewart DATE: 2 July 2026
ORDER The Tribunal orders that:
The orders of the Original Tribunal are confirmed.
The appeal is dismissed.
……………………………….. Presidential Member D Stewart REASONS FOR DECISION
Introduction 1. The appellant claims that the respondent indirectly discriminated against her due to her disability after she tripped on uneven pavers outside the Kippax Fair 1 shopping centre. The Original Tribunal found that the appellant did not trip on the uneven paver she blamed for her fall, that the availability of alternative accessible pathways into the shopping centre meant that there was no condition or requirement placed upon the appellant within the meaning of indirect discrimination, and that the maintenance and reporting systems in place meant that the respondent had not failed to make reasonable adjustments. The appellant appeals against that decision.
This appeal has proceeded by way of a review of the decision of the Original Tribunal. To succeed on a review, the appellant must show that there has been an 2 error of fact or law in the original decision and the error affected the result. It is not enough for the appellant to say that a different finding of fact should be preferred on appeal; they must show that a material finding of fact made by the 3 Original Tribunal was “clearly wrong”. Some additional evidence from the appellant was accepted on the limited basis that it be used to demonstrate error on the part of the Original Tribunal.
I have found that the Original Tribunal was in error in concluding that there was no indirect discrimination because there was no condition or requirement placed on the appellant by the respondent. However, I have also found that error would not have affected the result as any condition or requirement imposed by the respondent was reasonable in the circumstances. I have therefore dismissed the appeal.
In the reasons that follow, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the
1 Applicant DT 6/2025 v Director-General, Transport Canberra and City Services [2025] ACAT 66 (original decision) 2 Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116 at [6] 3 He v Qin & Ors [2021] ACAT 129 at [47] presently constituted tribunal. When referring to the first instance decision, the Tribunal uses the expression ‘Original Tribunal’ or ‘Senior Member’. For ease of reference, references to the respondent in these reasons includes actions taken by the respondent's employees and representatives in relation to this matter. References to sections of legislation are from the Discrimination Act 1991 (Discrimination Act) unless otherwise indicated. Statutory background
The meaning of discrimination is set out in section 8 of the Discrimination Act: 8 Meaning of discrimination (1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else. (2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes. (3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes. (4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances. (5) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include— (a) the nature and extent of any disadvantage that results from imposing the condition or requirement; and (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
It was accepted by the parties that the applicant was claiming to have been indirectly discriminated against due to her disability, which is a protected attribute under section 7(1)(e).
To be unlawful, the discrimination must occur in at least one of a number of specified areas. The appellant had complained about her access to premises as protected by section 19: 19 Access to premises (1) It is unlawful for a person to discriminate against another person— (a) by refusing to allow the other person access to, or the use of, any premises (public 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 discriminator is prepared to allow the other person access to, or the use of, public premises; or (c) in relation to the provision of means of access to public premises; or (d) by refusing to allow the other person the use of any facilities (public facilities) in public 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 discriminator is prepared to allow the other person the use of public facilities; or (f) by requiring the other person to leave public premises or cease to use such facilities.
The meaning of ‘premises’ is set out in the dictionary: premises includes— (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 paragraph (b)).
I do not understand it to be disputed that the paved area outside the Kippax Fair shopping centre was a public place.
As a general principle, the onus of establishing an exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it to avoid conduct being an unlawful act (section 70). The respondent in this case therefore had the onus to establish that any a condition or requirement was reasonable in the circumstances so as not to give rise to indirect discrimination. Errors of fact, law or discretion claimed by the appellant Fell or tripped?
The Original Tribunal described the appellant as suffering from a range of medical conditions that significantly affected her mobility and require her to use a mobility walker for support. The appellant had claimed to have tripped on a raised paver outside Kippax Fair shopping centre, and had identified the paver in photographs provided with her application. The Original Tribunal found, however, that the appellant fell to her knees while crossing a paved area, and that the fall occurred before the appellant reached the raised paver which the appellant had photographed. The Original Tribunal relied on CCTV footage of the incident as well as the photographs taken by the appellant and evidence given by the respondent’s witness who had calculated the respective locations of the raised paver and where the appellant dropped to her knees.
The appellant disputed the Original Tribunal’s characterisation that the appellant fell to her knees rather than tripped. The appellant claimed on appeal that it was clear on the CCTV footage and medical evidence that she tripped on a raised paver rather than just falling to her knees. The appellant also disputed the Original Tribunal’s description of her medical conditions and proclivity to falls as inconsistent with the medical evidence she had provided. She claimed that she had been able to safely walk from the car park on the day in question and many other occasions and that her walker prevents her from simply falling down. She provided a statement from her medical practitioner who added to their statement provided to the Original Tribunal that the appellant did not have a history of spontaneous falls and that her mobility walker appears very effective in preventing falls in ordinary circumstances.
The respondent submitted that the Original Tribunal’s findings were reasonably open on the evidence available. The respondent submitted that the Original Tribunal was merely describing the appellant’s medical conditions as a possible contributor to her fall which was open on the medical evidence provided. There was no evidence provided that the appellant’s walker would prevent her from falling to her knees as found by the Original Tribunal.
I am satisfied on the evidence presented to the Original Tribunal that the appellant tripped on a raised paver, falling to her knees and suffering injuries to her knees and foot. I consider that to be more consistent with the CCTV footage, injuries suffered by the appellant including to the big toe of her right foot, the damage to her sandal and her recollections of the incident as provided in evidence to the Original Tribunal. That finding is reinforced by the additional evidence provided by the appellant at the appeal hearing, including the additional medical evidence.
I accept, however, that the Original Tribunal’s conclusion was reasonably open. At the appeal hearing the appellant confirmed that the photograph of a raised paver was the one she had tripped on. The evidence before the Original Tribunal included how it was possible to calculate the position of that paver in the CCTV footage given the relative location of proximate blue coloured pavers which are visible in both the photograph and footage. It might also have been expected that there would be some indication in the CCTV footage that the appellant’s mobility walker was impeded by the raised paver before the appellant contacted it with her toe, though I note that this argument may not have been put to the appellant at the original hearing.
The medical evidence before the Original Tribunal about the appellant’s disability was also correctly characterised in my view as supporting the possibility of the appellant falling to her knees without necessarily tripping on a raised paver. There was no evidence before the Original Tribunal that the mobility walker used by the appellant would have prevented her from falling unless she tripped on the paver. The additional evidence provided by the appellant on appeal reports on observations that the walker appears to be effective in preventing falls in ordinary circumstances. It does not establish that it would be impossible, as claimed by the appellant, for her to drop to her knees without a raised paver causing her to trip.
In my view, the calculation of the location of the raised paver employed by the respondent and accepted by the Original Tribunal is not definitive and is outweighed by other evidence suggesting that the appellant tripped rather than fell. However, I am not satisfied that the Original Tribunal was clearly wrong in finding that the appellant’s injuries were not caused by the raised paver.
The Original Tribunal found that one of the appellant’s witnesses was not credible and did not give that witness’s evidence any weight. As I did not have the benefit of hearing from the witness, I am reluctant to overturn the Original Tribunal’s findings. Based on the witness statement and transcript of the evidence given at the original hearing, the concerns raised by the Original Tribunal about the credibility of the witness do not in my view suggest that all evidence from the witness is not credible and should not be given any weight. However, given the Original Tribunal stated that the witness’s evidence was not a determining factor in the Original Tribunal’s findings on the cause of the appellant’s injuries, I do not consider it necessary to form a view on the credibility of the appellant’s witness or what impact, if any, a different view of the witness’s evidence would have had on the outcome of the appeal.
I ultimately do not need to reach a conclusion on whether my disagreement with the Original Tribunal over the cause of the appellant’s injuries is sufficient to justify setting aside the Original Tribunal’s orders. This is because, as discussed below, I have concluded that even if the Original Tribunal was wrong and the appellant sustained her injuries by tripping over a raised paver, this would not have resulted in a different outcome. Any error by the Original Tribunal was therefore not material.
I should note that indirect discrimination occurs when a condition or requirement imposed by the respondent has, or is likely to have, the effect of disadvantaging 4 the other person because they have one or more protected attributes. Whether the appellant actually tripped on a raised paver does not prevent a finding that she was likely to do so. It was not disputed that there were raised pavers at the time the appellant claimed to have tripped, and that raised pavers could have led to the appellant falling and hurting herself as she had claimed. In my view, even if the appellant had not tripped on the raised paver she identified in the photograph, the evidence before the Original Tribunal was sufficient to establish that the presence of a raised paver was likely to have the effect of disadvantaging the appellant because of her disability. Therefore, the conclusion that the appellant did not trip over a raised paver was perhaps not fatal to her application, even if it may have
4 Discrimination Act s 8(3) affected any compensation which might have been available. That there was a condition or requirement imposed by the respondent is, however, required before a finding of indirect discrimination could be made.
Condition or requirement
The Original Tribunal had held that the respondent had not imposed a condition or requirement on the appellant as required for there to be indirect discrimination. The Original Tribunal considered a number of cases that had discussed the 5 requirement of a condition or requirement. The Senior Member concluded: The absence of a reasonable choice in the circumstances is important. A condition or requirement suggests that something must be done in order for the person to be able to have access to an area of public life. Indirect discrimination occurs when a condition or requirement is imposed as a pre-requisite to such access causing a disadvantage to a person because of their protected attribute. That is, the person with the protected attribute has no choice but to submit to or be bound by the terms upon which the alleged discrimination provides access to the goods or services and the terms cause 6 a disadvantage because of the protected attribute.
The Original Tribunal went on to contrast the appellant’s position with “the entire area leading to Kippax Fair [being] constructed with uneven pavers and there were no other means of reaching Kippax Fair shopping centre or Kippax Post 7 office”. Given the appellant’s mobility challenges, the Original Tribunal considered that the appellant should have been mindful of the possibility of tripping on paving and chosen to use one of the other disability accessible paths available. The Original Tribunal therefore concluded that the respondent had not imposed a condition or requirement upon the appellant to navigate her way across uneven paving to reach the Kippax Post Office or the shopping centre and therefore the appellant had not been indirectly discriminated against.
The appellant submitted that the Original Tribunal had not considered the extent to which the paved areas outside the shopping area were themselves public premises for the purposes of section 19 of the Discrimination Act. She also submitted that someone with mobility issues should not have to walk much
5 Including Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915, Travers v New South Wales [2001] FMCA 18 and Phillips v Australian Capital Territory [2021] ACAT 22 6 Original decision at [64], footnotes omitted 7 Original decision at [65] further to access the different areas of the shopping centre using the accessibility ramps provided.
The respondent submitted that the question of indirect discrimination should be considered independently of the area of public life in which the discrimination is said to occur; there has to be discrimination before it can be unlawful. They submitted that the appellant had to show that there had been indirect discrimination, including that the respondent had imposed a condition or requirement on her, before considering whether that discrimination had involved access to premises so as to be unlawful under section 19.
In my view the Original Tribunal was wrong to conclude that there was no relevant condition or requirement imposed on the appellant. Unlawful discrimination under section 19 relates to any public premises, which, under the definition of premises, includes a place (whether enclosed or built on or not) and a part of a premises. The availability of alternative means of accessing other areas of the shopping centre may have meant that the uneven paving was not a condition to accessing those other areas, but that it could still be a condition to access the paved area in question. As the Original Tribunal discusses, a condition or requirement should be construed broadly to include any form of qualification or 8 pre-requisite. That necessarily involves the question of what is being qualified or pre-conditioned. The Original Tribunal has looked to the appellant’s objective of accessing parts of the shopping centre for which there were alternative accessible pathways. However, it is not clear why that view of the appellant’s subjective purpose is appropriate; the appellant similarly had a choice to do her shopping somewhere else, or to ask for assistance in travelling across the paved area.
Section 19 deals with unlawful discrimination with respect to access to premises. Section 19(b) makes it unlawful to discriminate “in the terms or conditions on which the discriminator is prepared to allow the other person access, or use of, public premises”. Section 19(c) makes it unlawful to discriminate “in relation to
8 Citing Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56 at [10] per Dawson J; at [10] per McHugh J; Waters v Public Transport Commission [1991] HCA 49, at [23] per Dawson and Toohey JJ; at [8] per McHugh J the provision of means of access to public premises”. Both these provisions seek to protect against discrimination in relation to public premises without qualification as to the purpose for which those premises were being accessed or used. It is inconsistent with the protection against discrimination in relation to access to premises for indirect discrimination to depend upon frustration of the purpose for seeking to access the premises in question.
I should note that the appellant’s submissions before the Original Tribunal referred to section 23 of the Disability Discrimination Act 1992 (Cth). However that section is in similar terms to section 19. It is not clear whether the argument before the Original Tribunal included whether the paved area could itself be considered a public premises such that making it hard to access that area could itself be unlawful discrimination under section 19. In any event, the issue of whether there was indirect discrimination in impeding access to the paved area itself was in my view sufficiently raised by the applicant’s general submissions before the Original Tribunal.
I therefore accept the appellant’s submission on appeal that the Original Tribunal erred in concluding that there were no conditions or requirements placed on the appellant which disadvantaged her due to her disability. In my view, whether there is a condition or requirement involves considering if there is anything that might prevent or qualify access to the public premises in question. Whether the appellant had a choice not to access the premises in question, in this case at least, does not prevent there being a condition or requirement imposed for the purposes of establishing indirect discrimination. Therefore, by making it a requirement to access or use the paved area that a person be able to navigate uneven or raised pavers, the respondent was imposing a condition or requirement that disadvantaged the respondent due to her disability.
Whether the condition or requirement was reasonable in the circumstances
The question of whether the appellant could have chosen not to access the paved area is relevant, however, to whether having raised pavers was reasonable in the circumstances.
The Original Tribunal considered this issue in responding to submissions from the appellant that the respondent failed to make reasonable adjustments to accommodate her disability. Section 74 of the Discrimination Act provides that there is a positive duty to make reasonable adjustments to accommodate another person’s particular needs arising from a protected attribute if discrimination on the ground of that attribute is unlawful. The Original Tribunal found that the respondent had fixed the uneven paver after they were notified by the applicant through the Fix-My-Street online portal. The Original Tribunal also considered that it would not have been reasonable for the respondent to ensure that each and every paver under its purview is always even. The Original Tribunal referred to evidence from the respondent on the maintenance and repair processes they have in place and concluded: The respondent does have a responsibility to repair raised and damaged pavers and for implementing a system where such pavers are regularly inspected and or where pedestrians can report issues with pavers, but it cannot be expected to ensure that trees or other phenomena don’t affect the evenness of pavers at any given time and cause them to be raised. The respondent has a two-tiered system for ensuring that pavers are managed, it has a regular inspection regime and an online portal via which issues can be reported. The Tribunal finds that these are reasonable and appropriate means of dealing with uneven pavers as they arise and the respondent has not failed 9 to make a reasonable adjustment in the terms articulated by the applicant.
The appellant submitted to the appeal Tribunal that the respondent knew or should have known that there were problems with uneven pavers outside the Kippax Fair shopping centre. The area was well used and had a number of trees which would have caused the pavers to raise. The issue of raised pavers was well known to locals and had been raised in Facebook groups, other community forums and during consultation processes. However, the appellant had not provided evidence to the Original Tribunal of these prior notifications and was not able to provide specific details at the appeal hearing.
On the evidence available to me I am not satisfied that the Original Tribunal erred in finding that the respondent had adopted reasonable and appropriate means of
9 Original decision at [76]-[77] dealing with uneven pavers and that there had been no breach of the obligation to make reasonable adjustments under section 74.
I also consider the findings of the Original Tribunal in relation to section 74 are relevant to the issue of whether any indirect discrimination was reasonable in the circumstances for the purposes of the definition of discrimination in section 8. Section 8(5) states that whether a condition or requirement is reasonable in the circumstances includes considering the nature and extent of the disadvantage resulting from the condition or requirement, whether the disadvantage can be overcome or mitigated, and whether the disadvantage is disproportionate to the result sought by the respondent. Both before the Original Tribunal and on appeal, the appellant’s concerns related to the unevenness of the paving and did not suggest any adjustments which could have been made to accommodate her disability. The Original Tribunal’s conclusions on the reasonableness of the respondent’s actions to maintain and respond to notifications of uneven pavers are also relevant to the reasonableness in the circumstances of the presence of uneven pavers.
The presence of alternative accessible pathways to access the shopping centre, the possibility of uneven pavers developing and the potential hazard they presented are also part of the circumstances in which reasonableness is to be assessed. The obligations on the respondent to maintain the evenness of a paved area may be greater where there are limited alternatives but to attempt to navigate the area or where the possibility of harm resulting from uneven pavers is not apparent. I accept that using the accessible pathways would have been inconvenient for the appellant, but I accept the Original Tribunal’s finding that it was “reasonable for the respondent to expect that the applicant remains mindful of the possibility of tripping on paving whether displaced or otherwise, and ought 10 to have chosen the even terrain to navigate her way to the Kippax Post Office”. The disadvantage to the appellant of having to navigate her way across uneven pavers or take an alternative more accessible path is not disproportionate to the
10 Original decision at [68] use of pavers in the areas in question, at least when the respondent’s system of maintenance and responding to reported problems is considered.
Conclusion
Orders
……………………………….. Presidential Member D Stewart
11 Discrimination Act s 70 Date of hearing: 24 April 2026 Appellant: In person Counsel for the Respondent: Mr S Whitfield Solicitors for the Respondent: ACT Government Solicitor
APPLICANT DT 6/2025
DIRECTOR-GENERAL, TRANSPORT CANBERRA AND CITY SERVICES (Appeal)