Cooper v Human Rights & Equal Opportunity Commission

Federal Court of Australia|1999-03-04|Before: Madgwick J

REASONS FOR JUDGMENT 1 This is a review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision of the first respondent, the Human Rights and Equal Opportunity Commission ("the Commission"). The case concerns whether the Commission erred in holding that the second respondent, the Coffs Harbour City Council ("the Council"), was not in breach of the Disability Discrimination Act 1992 (Cth) ("the Act") by allowing the redevelopment of a cinema complex without requiring that wheelchair access be incorporated as a part of that redevelopment. In particular, this review concerns the proper construction of s 122 of the Act. The legislative framework 2 The objects of the Act, as expressed in s 3, are: "(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: (i) work, accommodation, education, access to premises, clubs and sport; and (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and (iv) the administration of Commonwealth laws and programs; and

(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community." 3 The Act defines "discrimination" in ss 5 and 6: 5. (1) 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. 6. 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." 4 Section 23, which is included under Division 2 ("Discrimination in … areas [other than work]") of Part 2 ("Prohibition of Disability Discrimination") of the Act, deals with access to premises. That section provides: "23. (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." 5 For the purposes of determining what constitutes "unjustifiable hardship", s 11 requires the Commission to take into account, among other relevant circumstances, "(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." 6 Section 122 extends liability for an auxiliary involvement in a contravention of the Act. It provides: "A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act." 7 At the relevant time, under s 47(3) of the Act, there was a limitation of liability under s 122 if a person was acting "in direct compliance with another law". Relevantly to this matter, s 90(1) of the Environmental Planning and Assessment Act 1979 (NSW) (since amended) required a local council, in determining a development application, to take into consideration a number of factors, including: "the circumstances of the case"; "the public interest"; and "any other prescribed matter". Under Reg 65 of the Environmental Planning and Assessment Regulation 1994 (NSW), one such prescribed matter was: "whether adequate provision had been made to enable disabled persons to gain access to the development or to the land on which the development is proposed to be carried out". The Council's consideration of the claim of unjustifiable hardship 8 In 1987 the Holiday Coast Cinema Centre ("the cinema") was built in Vernon Street, Coffs Harbour. The only access to the cinema was by a flight of steps from the street into the building, and then up further flights of steps within the complex into the auditoriums. There were for all practical purposes no means of wheelchair access to, or within, the cinema. 9 The Act came into operation on 1 March 1993. As outlined above, among other things, the Act made it unlawful, under s 23, for persons who own or operate premises to which members of the public may be admitted to, for example, fail to make provision for wheelchair access, unless the provisions of s 23 and/or s 47, that may limit liability in certain circumstances, were applicable. 10 In early 1995 the operators of the cinema, Mr and Mrs Madge ("the operators"), made an application to the Council for development approval in order to undertake building work in the complex. That work involved refurbishment of the interior of the cinema, reducing the number of seats in the two existing auditoriums, and building a third auditorium accessible only via a new flight of stairs. No provision was made for wheelchair access to the new auditorium or to the premises in general. The proposal, the operators estimated, would cost $100,000 (as will be seen, the actual cost of the development was substantially more than this amount). 11 Meetings were held on 8 and 11 April 1995 by the Council's Technical Liaison Committee during which the issue of access to the cinema for persons with a disability was raised. It was recognised that breaches of the Act might arise. On 13 April the Manager of Development Control wrote a memorandum to the Community Section of the Council stating: "As no access for people with disabilities is being provided, it is suggested that opinion be sought, as to Council's position in approving the DA from HREOC. It could be that the development contravenes the DDA but the clause of 'unjustifiable hardship' in this instance could well be applied as the entire redevelopment is only $100,000. The decision not to provide access is, in my opinion, morally reprehensible but the final decision as far as Council is concerned rests with the Human Rights and Equal Opportunity Commission." 12 Also on that day another memo was sent which considered whether the development application was in accordance with the requirements of s 90 of the Environmental Planning and Assessment Act. In that memorandum the Manager stated: "The existing building does not provide disabled access to the cinemas which are located at first floor level. The [Building Code of Australia - "BCA"] requires disabled access to new buildings. As the application is for structural modifications within an existing building Council has the discretion under Cl 20 of the LGA provisions to dispense with the requirements to require a full upgrade to comply with the BCA. As the cinemas are located at first floor level and the proposal provides for a decrease in patron numbers, the provision to require disabled access is not warranted. The applicants should however, be required to substantiate the proposal not [to] provide disabled access." 13 On the same day, the Council then wrote to the Senior Policy Officer of the Commission, seeking advice in the following terms: "Advice is sought from the Policy Unit to assist Council in its determination of various applications for the construction of new buildings or the alternation/addition to existing buildings within the City area… An existing cinema complex is accessed via three separate stair flights - one flight to ticket sales, one flight to lounge and confectionery bar and the third flight to two theatres. It is proposed to alter the existing complex to comprise three theatres. There will be no increase in seating and, in fact, a reduction in seating numbers is proposed. The new theatre will be accessed via a fourth flight of stairs. The applicant is prepared to upgrade all stairways for access to the provisions of AS 1428.1-1988, Clause 10, however he will not consider a lift installation nor 'stair inclinator chairs' due to the complexity of the building floor plan (the three theatre complex will comprise four independent flights of stairs), the minimal usage of a stair inclinator chair system and cost (the inclinator system or lift cost would be disproportionate to the cost of building alterations). Your advice is sought as to Council's responsibility under the DDA in the approval process for this application. Must Council seek a report from the applicant in terms of 'unjustifiable hardship' and is this term defined? To the community's advantage, Council is currently considering an application for a new cinema complex within the City area which will, of course, have access and facilities for people with disabilities."

14 On 26 May the Commission responded to the Council's inquiry by providing some general information about local government planning and development responsibilities under the Act, and possible recriminations if a council was found to be in breach of those responsibilities. 15 On 26 April, the operators wrote to the Council the following letter in support of their development application: "We believe that any requirement that we provide disabled access to the cinemas as a condition of the above application would cause the owners unjustifiable hardship. Our investigations into the provision of access for wheelchair patrons have shown that [it] is physically impossible to provide either a lift or 'stair riser' in the Cinema Centre. There are too many levels that need access for a lift to be utilised, and no suitable position in the building to permit lift access to all the levels; 'stair risers' have an [extension] to their guide rails in order to allow level loading at each bottom level, and these rails would obstruct either the fire sprinkler valve room, the egress passageways at the foyer stairs, or the entry to the toilets. The cost of 'stair risers' is also prohibitive. If it were physically possible to install the units without causing obstructions, four units plus level tracks would be needed, for a total installed cost of over $100,000. This is as much as the total cost of constructing the third cinema. An application for five new cinemas has been approved for the Pacific Boulevard site, [the proposed new cinema complex the Council was considering] and this will have an extremely detrimental effect on our trading. Our costs need to be contained as much as possible, whilst increasing our cinema's appeal, and doubling the cost of the addition of an extra cinema would make it an uneconomical proposition. With the opening of the new cinemas in Bray Street later this year, an excellent facility for the disabled will be in place… far superior to any that could be provided at our site. The Bray Street cinemas will have dedicated disabled parking near the entry, and access to all cinemas and foyer facilities will be ramped in accordance with the current codes. At the Vernon Street cinemas, the nearest dedicated parking is at the Palm Centre car park, and access to the cinemas would be gained by using up to four separate mechanical devices. As the Bray Street cinemas will be showing all the films we have simultaneously, plus others that we cannot accommodate, any facility at the Vernon Street cinemas would not be used, in preference to the ease of access to the Bray Street cinemas. I am not one to wish my business go elsewhere, but the economics of the situation coupled with the inconvenience to the disabled at Vernon Street are clear." 16 On 11 May 1995 the Council prepared a report recommending the approval of the development application. That report included: "Issues: The issue of access for people with disabilities to this public building is an important consideration in the determination of this application. Section 90(1)(s) of the Environmental Planning and Assessment Act requires Council to consider access for disabled people in the determination of a Development Application. The original cinema development was approved without access for disabled people. This was permissible under the building regulations in force at the time. Council's current policy requires access and facilities for the disabled to be provided to all existing buildings, where practicable, when a building is redeveloped. A new cinema complex would require access and facilities for disabled. The application before Council, however, is for the refurbishment of an existing building and, due to the complexity of the current and proposed floor plan layout, it is maintained by the applicant that compliance is not possible and, further, the applicant believes that any requirement by Council to provide disabled access would cause the owners unjustifiable hardship. Separate to Council policy on access and statutory requirements for access under the Building Code of Australia are the provisions of the Commonwealth Disability Discrimination Act, 1992 (DDA) which makes it against the law for public places to be inaccessible to people with a disability. Access under this legislation applied to existing places as well as new developments. This Act required modification of existing places to be accessible except where this would involve 'unjustifiable hardship'. The issue for resolution by Council is that whether to require the provision of access would cause the owners unjustifiable hardship. In making this determination, Council must be aware that is a complaint was lodged under the DDA against the developer of a building because of its lack of access, and the Council had approved the development of that building, the developer could either join the Council in the action under the DDA or, if it was found to have breached the DDA, sue the Council for negligent misrepresentation. Advice from the Policy Unit of the DDA confirms that claims under this Act have been largely untried and, accordingly, there is an absence of precedent to assist the determination of the current proposal. It is considered that the applicant has a fair claim for unjustifiable hardship in the particular circumstances. The existing complex is accessed by three separate stair flights and a fourth set of stairs will access the new theatre. The installation of a lift to service each level is impracticable and the installation cost, if proposed, would be disproportionate to the cost of the building works. Stair inclinator chairs are not a viable option due to the floor layout and cost." 17 A motion was subsequently passed to grant the development application and development consent was issued to the operators on 19 May, subject to the condition that a building application was made and granted by the Council. That building application was approved on 23 June. Work on the cinema commenced in August 1995. Proceedings before the Commission - (1) the cinema operators 18 On 7 August 1995 the applicant, Mr Cooper, on behalf of a rights group called North Coast Disability, Information, Advocacy and Lifestyle ("D.I.A.L."), lodged a complaint with the Commission against both the cinema operators and the Council, on the basis that, among other things, the Council had approved the construction of the new cinema with the knowledge that it would be inaccessible to wheelchair users. The applicant sought an interim determination to prevent the continuation of the construction until adequate provision for wheelchair access was incorporated into the plans for redevelopment. The President of the Commission declined to make that interim determination. 19 In June 1997 the case against the operators was heard by Commissioner Keim. For reasons given on 29 August, the Commissioner found that the cinema operators had unlawfully discriminated against the applicant and others in breach of s 23 of the Act by requiring them to use the stairways to gain access. As a matter of fact, the Commissioner found that the cost of the renovations was quite substantially more than that which had been represented to the Council at the time of the development application. In his reasons, the Commissioner stated: "At the term of the interim application before Sir Ronald Wilson, it appeared that the approximate cost of installing the platform stairlifts then argued to be $130,0000.00 was quite massive in contrast to the expenditure on the building which was then represented as being $100,000.00. The true comparisons are significantly different to what was represented before the President. By the time the cost of refurbishment including new carpeting and new seating was taken into account, the cost of work was in the region of $400,000.00. The expenditure that would be needed to install platform stairlifts seems not quite so massive in comparison." 20 In the circumstances, the Commissioner found it appropriate to order that suitable access be provided by the cinema operators in the form of wheelchair platform stair lifts by September 2002. (2) Proceedings in respect of the Council 21 The complaint against the Council came before Commissioner Nettlefold on 3 December 1997. It was agreed between the parties that, among other things, the matter in dispute to be determined by the Commission was: "Whether pursuant to Section 122 of the DDA the respondent has aided or permitted an act that is unlawful under Section 23 of the DDA [being the act of discrimination found against the Cinema] by: (a) Approving Development Application No. 88/95 on 11 May 1995 without imposing a condition that [the Cinema] provide access to persons with disabilities to the premises. (b) Issuing a Building Notice of Approval to [the Cinema] on or about 23 June 1997 in respect of Building Application No. 529/95 without imposing any conditions requiring [the Cinema] to provide access to persons with disabilities to the premises. (c) Permitting [the Cinema] to operate the premises from about May, 1995 without a licence to operate as a place of Public Entertainment." 22 The Commission gave its reasons for decision on 18 May 1998. In those reasons, the Commission rejected the Council's argument that it had a valid defence under s 47(3) of the Act in that it had made its decision about disabled access "in direct compliance with" the requirements of s 90 of the Environmental Planing and Assessment Act. The Council had argued that, among other things, it was beyond its power to impose a condition to provide access for persons with disabilities, because that would, in effect, import into the assessment process factors that were beyond the scope of that Act. The Commission rejected that argument on the basis that such an issue was both a matter of "public interest", and constituted a relevant "circumstance of the case". As such the Council was authorised to consider wheelchair access under s 90. Furthermore, the Council had in fact taken provisions of the Act into account. 23 The Commission went on to consider whether the Council had acted unlawfully under s 122 of the Act. Relevantly to this review, the Commission held:

"The Referral Report discloses that the Council's response to the complaint was to decline to admit liability and state that it was aware of the requirements of the DDA at the time the Development Application was approved and it considered the applicant, Holiday Coast Cinema Centres Pty Ltd, may have an adequate defence of unjustifiable hardship. A consideration in any given case of the subject of unjustifiable hardship requires a consideration of the meaning of the phrase itself. The meaning is supplied by s.11 of the DDA. The phrase has a wide meaning. Section 11 requires that all the relevant circumstances of the particular case are to be taken into account. In this particular case, the relevant circumstances included the following matters, there being no attempt to be exhaustive:

The matters contained in the developer's letter to Council of 26 April 1995. On the basis of that letter, the Council could have reasonably concluded that the cost of providing access for people using wheelchairs was high, in comparison to the total cost of the work which was to be done. The Council could have reasonably concluded the factor of cost, together with other matters referred to in the letter, created a substantial risk that the work would not proceed if it insisted on stair-risers or any other form of wheelchair access. Council could have reasonably decided, in all the circumstances, that it was not prepared to run the risk of denying the community, including the building industry, the benefit of the project. No doubt, democratically elected councils come under a good deal of pressure in times of high unemployment and difficult economic circumstances. Surely, there is a natural reluctance to lose projects, or even have them delayed for a substantial period. On this point, one recalls the following important passage in the Report to Council on the Development Application: 'It is considered that the applicant has a fair claim for unjustifiable hardship in the particular circumstances. The existing complex is accessed by three separate stair flights and a fourth set of stairs will access the new theatre. The installation of a lift to service each level is impracticable and the installation cost, if proposed, would be disproportionate to the cost of the building works. Stair inclinator chairs are not a viable option due to the floor layout and cost.' A perusal of the Development Application file leads one to wonder whether stair risers are entirely satisfactory. Perhaps they are plainly in the second-best category, their cost needing to be assessed in that light. The relevant point being that a councillor considering the Development Application would be entitled to form a view about that.
On the other hand, a very important aspect was that, if adequate access was not provided, people who use wheelchairs would continue to suffer discrimination and inequality, a matter to be weighed in the light of the objects of the DDA (see s.3). But it must be kept in mind that any point, however important in the abstract, must be weighed in the light of economic viability; in some cases, the cost of a benefit means that it is not practical to provide it. At the end of the day, weighing up these factors was the duty of the councillors. When democratically elected councillors discharge such a duty a well instructed tribunal will hesitate before disagreeing. The Council had before it a careful Report which adverted to the various aspects. Council decided as it did. In the nature of things, we cannot know all of their thought processes. In all the circumstances the correct approach is to ask this question: could a reasonable council, properly advised, reasonably form the view it did on the issue of unjustifiable hardship? The correct answer to the question is yes. That being the answer to the question, it would be wrong to use s.122 of the DDA to treat the Council as if it had done an unlawful act. It did not do an unlawful act and should not be 'taken' (see s.122) to have done so. What it did was to discharge a public duty in the public interest. To use a provision like s.122 to visit liability on the Council in those circumstances would be to make an inappropriate use of the section. At this point, the 'Wednesbury Principle' should be recalled: 'It is for those who assert that the local authority has contravened the law to establish that proposition' (Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223). In this case, that proposition has not been established." 24 The applicant brings this application for review on the ground that, among other things, the Commission erred in law in construing s 122 of the Act by, first, relying on the "Wednesbury Principle" in finding that s 122 did not apply to the Council, and second, by failing to construe s 122 with regard to the ordinary words of the section and the overall objects of the Act. Misapplication of "Wednesbury Principle" 25 With respect, it is clear that the Commission has misdirected itself as to the correct approach to be taken in understanding the meaning and effect of s 122. As a matter of construction, the proper approach is first to consider the terms of the section itself. These do not impose liability on the basis of determining whether a party's actions were "reasonable" in the circumstances. The question was thus, not whether a reasonable council could have reasonably formed the view that an applicant for development approval could have a "defence" of unjustifiable hardship under the Act. Rather, the sole question was whether it had been proven that the Council "caused, instructed, induced, aided, or permitted" the

cinema operators to discriminate unlawfully against persons with a disability, contrary to s 23. It is clear from the reasons which were given that the Commission failed to address that question. Futility of relief sought? 26 Such a conclusion would ordinarily result in an order of this Court remitting the matter for reconsideration by the Commission. However, the Council submits in effect that, on a proper understanding of the elements necessary to make out a case under s 122 there is no evidence from which it might be concluded that the Council had so permitted a breach of s 23. Therefore, it is argued, it would be futile to have the matter reconsidered by the Commission and, consequently, the application to this court should simply be dismissed. Before considering the state of the evidence, it is necessary to consider the proper construction of s 122, under which the Council is allegedly liable. Requirements of s 122 27 The first step in establishing whether liability exists under s 122, for auxiliary involvement in the contravention of the Act, is to establish whether there was an unlawful act of a principal under Division 1, 2 or 3 of Part 2 of the Act, in this case under s 23. 28 The principle established by s 23(2) still applies that, in a provision of access case, if remedial work would impose unjustifiable hardship on the access-provider, the discriminatory provision of access is not unlawful. The Commission must therefore be satisfied in the case of an alleged s 122 permittor that, in fact, the alteration would not impose such hardship on the principal before a complaint could be sustained. In this case, the Commission satisfied itself of the Cinema's principal liability by way of Commissioner Keim's determination on 29 August 1997 that the Cinema operators had behaved in an unlawfully discriminatory manner in breach of s 23. That finding was not challenged and that instance of unlawfulness was an agreed fact between the parties. Section 23(2) - negative element or exculpatory exception? 29 Although there was no issue between the parties about the absence, in fact, of unjustifiable hardship for the cinema operators, it is nevertheless convenient to consider at this point the legal matters as to which the Commission must be satisfied to determine that the supposed principal is liable. Such a consideration may bear on the legal content of "permission" under s 122. Section 23(1) is concerned with an act of discrimination on the basis of a failure to provide access for disabled people to certain facilities or by failure to provide them with the use of certain facilities. In this case discrimination in relation to access to premises, s 23(1)(c) is in issue. Section 23(2) is concerned with the situation where unjustifiable hardship would be placed upon a discriminator who would be required by s 23(1) to provide that access. It is not immediately apparent whether s 23(2) operates as an element of liability under s 23, to be established negatively, or whether it operates to afford, as it were, a defence to liability that would otherwise exist under s 23(1). 30 Questions of determination of where the onus of proof of an issue lies have involved some elucidation of such questions. Whether an applicant or respondent (or the Crown) bears the onus of disproving some negative matter has been seen as depending on whether such negation is an element of a cause of action (or of a statutory offence), or whether the matter should be characterised as an exception and left to the defendant positively to raise and prove it. It is true that s 23(2) is cast, not in the language of an exception or a qualification, but merely of an explanation. Nevertheless, the substance of the section is that a principle of liability is stated which the enactment "means to apply generally" and that provision is made "for some special grounds of … exculpation depending upon new or additional facts", to use the phraseology employed in Vines v Djordjevitch (1955) 91 CLR 512 at 519-20. In making such a categorisation, it is not the form of such a provision but the substance which is important: ibid. Section 11 of the Act confirms the impression that s 23(2) is setting up a matter of exculpation rather than a negative element to be established before liability exists. Section 11 requires that some matters be taken into account which can only sensibly be considered to be within the knowledge of the party claiming hardship. For instance, "(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship." 31 Thus, in accordance with Vines v Djordjevitch, if the proceedings before the Commission were judicial and adversarial, and not administrative and inquisitional, the onus of proof, in a case against an alleged principal discriminator, would be upon the party asserting that unjustifiable hardship would be imposed by the alteration to the premises necessary to make than accessible to a disabled person. The proceedings before the Commission are, however, both administrative and inquisitorial. In such proceedings, it is not correct to speak of an onus of proof as between parties. Rather, it is a question of the matters as to which the inquisitor needs to be satisfied, on the evidence; see the discussion of this matter by Merkel J in Kirushanthan Paramananthan v Minister for Immigration & Multicultural Affairs (Federal Court of Australia, Full Court, 21 December 1998) at 26 and Bushell v Repatriation Commission (1992) 175 CLR 403 at 424-5, per Brennan J. 32 More importantly for present purposes, the above analysis shows that the essential elements of the principal discriminator's liability do not include the negative proposition that there be no unreasonable hardship to such discriminator. That conclusion is also more comfortably reached because the liability for such discrimination is merely civil and merely compensatory. No question of either a criminal or a civil penalty is involved: s 41 and s 103. 33 But that does not, of itself, determine the essential elements of which the Commission must be satisfied in order to determine that liability exists under s 122 as an accessory or auxiliary discriminator. Liability as a s 122 permittor - the possibilities 34 The degree of knowledge, if any, required to establish liability as a supposed "permittor" under s 122 is unclear on the face of the legislation. There are several possibilities: (1) on the analogy of the criminal law, see Giorgianni v The Queen (1985) 156 CLR 473, it might be that, in the absence of any material that could affirmatively satisfy the Commission that an alleged permittor knew or believed that unjustifiable hardship would not be involved, the alleged auxiliary could not be found to have permitted an unlawful act constituted by failure to provide means of access; (2) if there were some material before the Commissioner that could point to unjustifiable hardship, it might be that before a person could be said to have permitted an unlawful discriminatory act by another, the Commission would need to be affirmatively satisfied that that person knew or believed that unjustifiable hardship to that other would not be involved; (3) on the analogy of Proudman v Dayman (1941) 67 CLR 536, if the Commission was in fact satisfied that the alleged permittor knew or believed that unjustifiable hardship would be involved, liability under s 122 would not have been established; (4) such last mentioned knowledge or belief is quite irrelevant, and all that need be shown is that permission was given to discriminatory provision of access.

The Yorke v Lucas argument 35 As to the analogy of the criminal law, Yorke v Lucas (1985) 158 CLR 601 at 668 was relied upon. That case, of course, concerned s 82 of the Trade Practices Act 1974, which adopted the term "involved in a contravention" of the Act to fix civil accessory or ancillary liability on persons allegedly indirectly involved in a non-compliance with the Act. The phrase was defined in s 75B(1)(a). Section 75B(1)(a) used the traditional criminal law formula, "aids, abets, counsels or procures". Notwithstanding that s 75B dealt with civil rather than criminal liability, it was held that: "s 75B … makes use of an existing concept drawn from the criminal law and unless the context requires otherwise, there is every reason to suppose that it was intended to carry with it the settled meaning which it already bore … its derivation is to be found in the criminal law and there is nothing to support the view that the concepts which it introduces should be given a new or special meaning … " (at 667-668 per Mason ACJ, Wilson, Deane and Dawson JJ). 36 Accordingly, applying Giorgianni v The Queen, it was held that a person could only be brought within s 75B(1)(a) if he intentionally aided, abetted etc., a contravention of s 52, notwithstanding that it was not necessary to prove intent to show that a corporation had directly contravened s 52. I note parenthetically that the term "induce" was used in s 75(1)(b) but, as the same Justices held, in the context of the statutory provision then under consideration the word clearly required intent based upon knowledge. The same may not be true here. 37 There are several reasons why it is inappropriate in this instance to adopt the high standard of knowledge required to attribute to accessories in criminal cases. The Sex Discrimination Act 1984 has a provision in similar terms to s 122 (s 105 thereof) whilst the Racial Discrimination Act 1975 does not. Section 122 has, it seems to me, been carefully drafted. Care has, in my view, been taken not to employ the traditional formula of the criminal law, "aids, abets counsels or procures", to define accessory liability. Instead the phrase used in s 122 is "causes, instructs, induces, aids or permits". It is clear that the s 122 concepts are wider than the traditional criminal law concepts; one might certainly "permit" an act without aiding, abetting, counselling or procuring it. There seems little doubt that the departure from the traditional criminal law phraseology was deliberate. The civil and compensatory nature of the remedies for breach of the duties established by the Act, and its broad purposes (as to which, see below), would furnish an adequate reason why such a departure would likely have been intended. The significance of that, it seems to me, is that it puts this case outside the reasoning in Yorke v Lucas. 38 There is another reason for giving a meaning to the term "permit" in s 122 unconfined by considerations of criminal liability, such that a person might be regarded as "permitting" a discriminatory act by another in relation to access to premises without actual knowledge of all the circumstances that must, pursuant to s 11, be taken into account in determining that there is unjustifiable hardship. That reason is that the purposes of the Disability Discrimination Act 1912, as indicated by s 3, include the elimination, "as far as possible", of discrimination against disabled people in what might be thought the main practical areas of life, so far as the Commonwealth's legislative power can reach those areas. It is also an object of the Act, under s 3(c), "to promote"recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community. The language referred to and the words emphasised are, to my mind, both an indication that the Act was intended to have far-reaching consequences and an explanation of why this was so. These are factors that would make sense of the introduction of a new concept of accessory liability and one very considerably broader in its reach than that traditionally employed by the criminal law. 39 Even without special regard to the precise provisions of s 3 of the Act, it should, of course, as beneficial legislation for a burdened class of the public, receive a beneficial interpretation in the case of ambiguity. This is especially so in the case of "legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose": Waters v Public Transport Corporation (1991) 173 CLR 349 at 359. See also the discussion in Pearce, Statutory Interpretation in Australia (4th edn, Sydney, Butterworth, 1996), pp 222-5. 40 Therefore, proof of knowledge that no unjustifiable hardship would be involved is not required to establish liability in a supposed permittor under s 122. It follows that, in the absence of material which might show knowledge or belief that no unreasonable hardship was involved, a complainant in a provision of access case will be entitled to a finding against an alleged permittor that discrimination has occurred on proof of permission being given for an act or omission which falls within s 23(1)(c). The Commission need not have material before it which would enable it to conclude that the alleged auxiliary did not know or believe that no unjustifiable hardship was involved.

The meaning of "permits" 41 But if such material is raised, the question remains: did the person complained of permit an act of discrimination which was unlawful? It seems to me that, for the purposes of the Disability Discrimination Act, one person permits another to do an unlawful discriminatory act if he or she permits that other to do an act which is in fact discriminatory. It is not essential to the concept of permission, in this context, that the permittor should know or believe in the lack of cogency of an assertion of unjustifiable hardship, particularly having regard to the unavoidably subjective features included in such an assertion and in knowledge or belief about it. There is no warrant for adopting, in relation to a statute concerned to vindicate human rights by the imposition of civil and compensatory liability, the narrowest definitions of the word "permit" that might be thought appropriate in statutes imposing criminal liability. For example, in Broad v Parish (1941) 64 CLR 588 at 595, Starke J adopted the meaning "intentionally allow". Upon that basis, there is no warrant for treating the statute as presuming knowledge in the absence of facts which might put it in doubt (in the way, for example, that in the criminal law the interest of an accused for the natural and probable consequences of his/her acts might be presumed but, upon possible drunkenness being raised, the Crown acquires the burden of showing that it did not rob the acts of such intent). Knowledge that there was no exculpation of the principal is simply, in my view, not required to be shown. In Adelaide City Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481, Isaacs J said: "the word 'permits' is of very extensive connotation… the primary [dictionary] meaning of 'permit' is: 'to allow, suffer, give leave; not to prevent … As an illustration, a person 'permits' his hall to be used for the public performance of a play … if he knows or has reason to know or believe that the particular play … will or may be performed and, having the legal power to prevent it, nevertheless disregards that power and allows his property to be used for the purpose. For example, … McCardie J held that [a claim that copyright in a musical work had been infringed by the hall proprietors] was rightly abandoned. But that was because the hall proprietors '…had no reasonable ground for suspecting that there would be an infringement of copyright by the band' " (at 490-491) (emphasis added)

42 Isaacs J was a dissentient in that case, but the result turned on the necessary degree of the power to control the allegedly permitted infringement and not the degree of knowledge of it. The sort of approach outlined by Isaacs J seems to me to be appropriate here. 43 In Howard v Northern Territory & Ors (1995) (Equal Opportunity Commission, unreported, 19 December 1994), Sir Ronald Wilson used expressions including "knowledge or at least wilful blindness or recklessness in the face of known circumstances" as being necessary to attract the operation of s 105 of the Sex Discrimination Act 1984, the equivalent of s 122 of this Act. However, he was speaking of the degree of knowledge required of the positive elements of an act of sexual discrimination in a case where: "there was nothing in the circumstances to put [the alleged permittor] on inquiry as to the lawfulness of [the principal discriminator's] decision or to require them to interrogate him to satisfy themselves of the lawfulness of his decision". 44 I do not perceive that my approach materially differs from that of Sir Ronald. 45 The consequence is that, at least in a case where the presence of such material does not positively satisfy the Commission that the supposed permittor honestly and reasonably believed that unjustifiable hardship would be involved, such material is not relevant to a conclusion on liability. An exception to s 122 - honest and reasonable mistake of fact 46 The further question remains whether, if the supposed accessory introduces (or there is otherwise before the Commission) material that shows that he or she honestly believed on reasonable grounds that the facts were such as would constitute unjustifiable hardship, the complainant must fail? Should an intention be imputed to Parliament that, for the purposes of the Act, one would have permitted an act if it happens that, although such act occurred in a factual setting that did not have exculpatory consequences, one honestly, or honestly and reasonably, believed, when the permission was given, that the factual setting was such that it would have had such consequences? In other words, should something like the well-known principle in the criminal law recognised in Proudman v Dayman or a less onerous variant of it be applied, by analogy, here. 47 That question too is, in my opinion, to be answered by looking to the evident objects and purposes of the Act. The purpose is not to place the elimination of disability discrimination above every other consideration, although the Act does intend, it seems to me, to place such elimination high in the pantheon of legally recognised social values. Section 3 speaks of elimination of discrimination "as far as possible" and the "unjustifiable hardship" limitation on liability under s 23(2) shows that the Act recognised that questions of social balance and degree and competing claims to fair treatment would remain. This impression is confirmed, in my view, by the terms of s 3(c). The aim is, in part, to have people recognise that disabled people have the same "fundamental rights" as others. Further, the aim is to have this recognition "accepted". 48 The Act establishes quasi-tortious rights, as opposed to vindication by the criminal law, for disabled people who have undergone discrimination. In general, tortious liability (as well as criminal liability) is defeated if a defendant can show an honest and reasonable belief in facts which, if true, would be exculpatory. (I must acknowledge, of course, that the proposition is not universally true. In particular it is not true of torts the purpose of which is the vindication of property rights, see Fleming, The Law of Torts (The Law Book Company, Sydney, 1992, 8th edn) pp 76-9.) The prospect of equal treatment of the disabled would not, therefore, be impaired by recognition of such a ground of exculpation. Such a ground seems to me, in any case, to accord with what the ordinary citizen might think to be fair and reasonable. "Acceptance" by the community that disabled people now have the same fundamental rights as others is at least as likely to be promoted by the recognition of such a fair and reasonable ground of exculpation as to be prejudiced by its non-recognition. 49 It seems consonant with the objects of the Act to require that the exculpatory belief be reasonable as well as honest - an auxiliary need not be in a better position than a principal (for whom, for example, an honest but unreasonably mistaken belief in some of the facts relevant to a conclusion about unjustifiable hardship would not suffice). If reasonableness were not also required, the work which the word "permits" was intended to do would be unreasonably undermined. The evidence before the Commission 50 We may now return to the question raised by the Council: Was there evidence upon which a finding of discriminatory permission might have been made against it, so far as

concerns the issue of the knowledge or belief properly to be imputed to the Council? Bearing in mind the approaches indicated above, the evidence showed: (i) the Commission had concluded that the true facts were such that the cinema operators would not be caused "unjustifiable hardship". (The findings against such different parties might be taken into account; ss 98 and 94. In any case, as indicated above, the Council conceded that this conclusion was open to the Commission in the proceedings against the Council); (ii) the Council had been told by the cinema operators that the cost of altering the premises to provide non-discriminatory means of access would equal or exceed the cost of the intended enlargement ("the principal work") of the cinema complex; (iii) as matters turned out, the cost of the principal work was about four times the estimate given to the Council by the cinema operators; (iv) the Commission could well have concluded that the operators might not have been immune from the common tendency of interest to colour consciousness, and that the Council, as the regulator of buildings in a thriving and large coastal city and no doubt the instigator of various construction works itself (see s 144 of the Evidence Act 1995 enlarging the scope for permissible judicial notice of well-known facts), was well-placed to assess and/or investigate the realism of the operators' cost estimates. 51 Assuming an honest belief by the agents of the Council that the facts about construction costs were such as to make hardship for the operators exculpatory, it nevertheless follows that there was evidence such that the Commission might not have been satisfied that such belief was a reasonable one. Had the Commission so concluded, it would have been entitled to find that s 122 applied to inculpate the Council. Conclusion 52 For the foregoing reasons, the application for judicial review must succeed. The decision of the Commission of 18 May 1998 will be set aside and the matter remitted to the Commission, differently constituted, for determination according to law. If the second respondent wishes to make any submissions against its being ordered to pay the costs of the

application, such submissions may shortly be made in writing (by facsimile) within three working days and the applicant may likewise respond to them within another two such days. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 4 March 1999 Counsel for the Applicant: Mr Batley

Solicitor for the Applicant: Legal Aid Commission

Solicitor for the Respondent: Murray Backhouse Turner

Assessment Act 1979(NSW)

Assessment Regulation 1994(NSW)

Trade Practices Act 1974(Cth)

Environmental Planning and Assessment Regulation 1994(NSW)

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (9)

Cases Cited (9)