Reasons for decision
This is an edited version of reasons for decision given orally on 12 August 2015.
Mr Edward Conroy has been a member of the Nelson Bay Golf Club, the respondent in these proceedings, for over 30 years. In about 2001 the Club introduced a cart or bike fee of $100 payable over two years. The fee was payable by members of the Club who elected to use their own motorised "golf cart/bike" on the Club's golf course.
In 2009 Mr Conroy lodged a complaint with the President of the Anti-Discrimination Board, alleging that the Club's action in introducing the fee, discriminated against him on the ground of disability. The parties reached agreement and the complaint was withdrawn before being referred to the Tribunal.
In August 2014 the Club again requested that Mr Conroy pay a fee to use his motorised golf cart on the course. While differently named, the fee in essence was the same as the fee originally in dispute. The fee had increased to $180 per year.
Mr Conroy again complained to the Anti-Discrimination Board that the decision of the Club to impose that fee constitutes unlawful discrimination on the ground of disability. That complaint has been referred to the Tribunal, which we are required to determine today.
Section 49O(2) of the Anti-Discrimination Act 1977 (the Act) makes it unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of disability by, among other things, subjecting the person to any other "detriment".
To succeed in his complaint Mr Conroy must establish that the facts as proven establish "direct discrimination" or "indirect discrimination" (respectively ss 49B(1)(a) and s49B(1)(b) of the Act). We indicated at the outset of this hearing our preliminary view that cast as a complaint of direct discrimination, Mr Conroy's complaint cannot succeed. Having reviewed the evidence and heard the submissions of the parties, we remain of that view. If I could take a moment to explain why we reached that conclusion.
To succeed as a complaint of direct discrimination, Mr Conroy must establish that in the same or similar circumstances the Club treated, or would treat, a person without his disability more favourably and, secondly, that one of the reasons for that less favourable treatment was his disability.
It is self-evident that neither element can succeed. The evidence makes clear that the cart fee applies equally to persons regardless of their disability, therefore, Mr Conroy cannot establish that in the same or similar circumstances an able bodied person would be treated more favourably. Furthermore, there is no evidence to suggest that one of the reasons for charging the cart fee was because of Mr Conroy's disability.
I think it is agreed that if the complaint were to be substantiated it would need to be cast as what is termed "indirect discrimination", as defined in s 49B(1)(b) of the Act.
This requires Mr Conroy to establish, first, that he suffers from a disability; secondly, that the Club imposed a requirement or condition; thirdly, that he was unable to comply with that requirement or condition; fourthly, that a substantially higher proportion of people, without his disability, are able or would be able to comply with that condition; and finally, that in all the circumstances the condition is not reasonable.
Turning to the first question - Does Mr Conroy suffer from a disability? - we note that the term "disability" is broadly defined by the Anti-Discrimination Act and includes the malfunction of part of a person's body. While the Club challenges the contention that Mr Conroy suffers from a disability, we are satisfied, on the basis of his evidence, which includes a certificate or a report prepared by medical practitioner Dr Barry Clark, that Mr Conroy suffers from a disability, namely arthritis of the feet and, as a consequence, is unable to complete the golf course on foot.
While challenged in its written submissions, we do not understand the Club to challenge that contention in its final submissions. In any event, for the reasons given we are satisfied, on the available evidence, that Mr Conroy suffers from a disability.
The second issue we must decide is the identification of the condition or requirement Mr Conroy contends he cannot comply with. As we understand Mr Conroy's case, the identified requirement or condition is that he pay an annual fee of approximately $180 to the Club to use a motorised vehicle on the course.
If that requirement or condition is adopted, the complaint of indirect discrimination must fail because, on his own evidence, Mr Conroy is able to comply with that condition. We note that the authorities, have emphasised that a person's "ability to comply" with a condition in the context of indirect discrimination, must be assessed in a practical and not theoretical sense. That said, there is no evidence to suggest that Mr Conroy is unable to comply with the condition to pay the annual fee of $180 and, in making that finding, we note that Mr Conroy is already paying a significant amount of money to the Club - approximately $2,000 a year - based on last year's figures, being a combination of membership and "green" fees.
That is not to suggest that we conclude that Mr Conroy would find it easy to find an additional $180 pa, but just that we are not satisfied that he has established a practical inability to comply.
It follows that if the condition or requirement is formulated as - the payment of an annual fee of $180 - the complaint must fail.
Given that Mr Conroy is self-represented, we have considered whether alternative formulations of the condition/requirement might be available. These include the requirement or condition to complete the course on foot or, alternatively, to complete the course on foot upon payment of the relevant membership and green fees and no additional fee. Or put simply, complete the course on foot without the payment of an additional cart fee.
Turning to the elements, we must address, firstly, the ability to comply. The evidence suggests that based on these formulations of the condition, Mr Conroy would probably be unable to comply.
The difficulty, however, is that if one of these alternative formulations were to be adopted, on the material before us we could not be satisfied of another element essential to establish a complaint of indirect discrimination, put simply, that a substantially higher proportion of people without Mr Conroy's disability are able to comply with that requirement or condition.
As we touched on earlier today, it is not an easy task to identify whether this element is satisfied. The approach to be taken was set out in Bonella & Ors v Wollongong City Council [2001] NSWADT 194, a decision of the Administrative Decisions Tribunal. It requires the Tribunal to first identify the "core" or "base" group. It may be that in the circumstances of this case, an appropriate base group is the 750 "full members" of the Club. Secondly, to identify those within that group who suffer from a disability and comply, or are able to comply, with the condition and, thirdly, to identify the members of the base group who comply, or are able to comply and who do not have a disability and, finally, to compare those proportions.
Now, no doubt to Mr Conroy this sounds like an extremely complicated exercise and he would be right. But, on the available evidence, we could not be satisfied that this element of the complaint of indirect discrimination is met because the material before us does not allow us to undertake that exercise. In reaching that conclusion we note that there is evidence which indicates that the people who use carts are not only those with disabilities, but based on the evidence given by the general manager includes a not insignificant number who do so because of personal preference and who apparently do not suffer a disability.
In the interests of completeness, we turn quickly to the question of reasonableness, which, if the other elements of indirect discrimination were satisfied, would need to be addressed.
It would fall to Mr Conroy to establish that in all the circumstances the condition or requirement was "not reasonable". The Courts have said that in making that assessment we must look at all of the circumstances, including the reason for the offending condition or requirement; the financial or economic impact of the condition or requirement on the alleged discriminator and also its effect on the person who claims to be the subject of the discriminatory conduct.
The evidence before us is this. The reason the Club introduced a levy was essentially for financial reasons. The rationale behind the policy was "user pays": to recoup some of the attendant costs of maintaining the greens. While the evidence before us about the damage issue is limited, we think it is probably reasonable to assume that some damage is caused to the course by the use of motorised vehicles. On what is before us, it is not possible to determine the extent of that damage and the extent to which it causes the Club to incur additional costs. The general manager properly conceded he was unable to estimate with any precision the cost to repair the damage to the course caused by the use of motorised carts.
The other issue, of course, is - what is the impact of that condition, or our reformulated condition, on, Mr Conroy. Is he able to comply? We have already addressed that. But I think it would be apparent that it would have a disproportionate impact on persons who suffer a disability.
In summary, the complaint cast as direct discrimination must fail. The complaint cast as indirect discrimination, formulating the condition as the requirement to pay a $180 cart fee, must also fail, primarily because we could not be satisfied that Mr Conroy is unable to comply with that condition. And, in the alternative, if we used our re formulated condition: the requirement to complete the course on foot or to complete the course on foot and not pay an additional fee to use a cart, the complaint would also fail because on the available evidence, we could not be satisfied that it would have a disproportionate impact upon people who suffer from a disability. So, cast as a complaint of indirect discrimination on the available evidence, the complaint must fail.
The Tribunal, however, would like to make this recommendation, that the Club give consideration to the adverse impact of the imposition of the cart fee on those persons who suffer from a disability. We strongly recommend that the Club give consideration to possibly introducing a waiver for those persons who are able to demonstrate that they are unable to complete the course on foot or without the use of a motorised vehicle.
The Tribunal has no power to make or enforce that recommendation but we suggest that the Club give careful consideration to it because it may be that in the future if a complaint was put in a different way the conduct might be found to constitute "discrimination" within the meaning of the Act.
That said, the complaint that has been referred to us by the President of the Anti-Discrimination Board in relation to Mr Conroy does not satisfy the test of discrimination set out in the Act and, for that reason, we must dismiss the complaint.
Thank you for your patience in listening to our reasons for decision and the hearing is now concluded.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 November 2015