On 18 February 2022 FXQ (the Applicant) attended Earlwood Library and requested assistance from a staff member (referred to in these reasons as Mr G) to scan a document to his flash drive. The Applicant alleges that Mr G 'scolded' or verbally abused him on three different occasions, demanded that he scan the document himself, and called him names including 'dumb'. The Applicant claims he informed Mr G of his disabilities, being [physical] deformity, depression, Post Traumatic Stress Disorder (PTSD), anxiety, hallucinations and alcohol abuse disorder with psychotic symptom, but the poor treatment continued. The Applicant approached another staff member (referred to in these reasons as Ms C) who had witnessed the incident and requested information for the purpose of making a complaint, which she eventually gave him. The Applicant submitted a complaint shortly thereafter to the Respondent but this was not responded to until 9 August 2022, when a phone call was made to the Applicant by an employee of the Respondent (referred to in these reasons as Ms Z). No written response to the Applicant's complaint was provided to the Applicant by the Respondent.
On 16 December 2022 the Applicant lodged a complaint with the President of Anti-Discrimination NSW (the President), alleging that he had been discriminated against on the ground of disability in the provision of goods and services. The President's delegate accepted the complaint of disability discrimination in the provision of goods and services for alleged conduct and events on 18 February 2022 and began investigating the complaint in February 2023. The President's delegate considered all the information received from both parties and on 20 April 2023 decided to decline the Applicant's complaint under section 92(1)(a)(i) of the Anti-Discrimination Act 1977 (NSW) (ADA/ the Act) because she was of the opinion it was lacking in substance for the following reasons:
Taking the complaint at its highest, the complainant has not demonstrated that he was refused a service, or provided a service on less favourable terms than a person who does not have his disability in the same or similar circumstances.
The respondent submits that although patrons are required to use the photocopying and scanning technology services themselves, they assisted the complainant with the copying.
Although it is alleged [Mr G] has treated him in a rude and demeaning manner, even if that was the case, less favourable manner in the provision of goods and services is not covered by the provisions of the ADA.
At the Applicant's request, the President referred the complaint to this Tribunal as required by s 93A of the Act on 10 May 2023. Pursuant to s 96(1) of the Act, leave must be granted by the Tribunal for the complaint to proceed.
A hearing on the question of whether leave ought to be granted by the Tribunal took place on 7 June 2023 by telephone. The Applicant provided the Tribunal with written and oral submissions, copies of WorkCover Certificates of Capacity dated 8 April 2021 and 5 October 2021, and a copy of the Library Council of New South Wales Standards and Guidelines for public libraries. The Respondent opposed leave being granted and provided with Tribunal with written and oral submissions, and statements from Mr G, Ms C and Ms Z, each dated 6 June 2023.
At the hearing I explained to the applicant the nature of a leave hearing and what was required of an application under s 96 of the Act. I explained to him what constituted disability discrimination in the provision of goods and services with reference to the relevant provisions of the Act. I explained that he would need to demonstrate to the Tribunal that it was just and fair in the circumstances for leave to be granted, in line with the authorities in Jones v Ekermawi [2009] NSWCA 388 (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 (Ekermawi). I explained that the Tribunal would accept the evidence he provided to the Tribunal at its highest for the purpose of determining whether leave ought to be granted.
For the reasons that follow, I have decided to refuse leave for the complaint to proceed.
[2]
Legal Principles
A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B of the Act, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones at [58]; Ekermawi at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
In determining whether to grant or refuse leave for a complaint to proceed pursuant to s 96(1) of the Act, the applicant's evidence must be taken at its highest - that is, everything the applicant has put in evidence is accepted as true - and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).
If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.
[3]
Disability Discrimination in the provision of goods and services
Section 4 of the Act defines disability to mean:
(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
The Act defines disability to include past, future and presumed disability:
49A Disability includes past, future and presumed disability
A reference in this Part to a person's disability is a reference to a disability -
(a) that a person has, or
(b) that a person is thought to have (whether or not the person in fact has the disability), or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
Section 49B outlines what conduct constitutes discrimination on the ground of disability:
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator -
(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
...
Section 49M provides:
49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability -
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
[4]
Consideration
The Applicant's submissions contained a 'chronology' which, in content, was more in the nature of a statement by the Applicant, albeit in the third person. It contained the following:
1. On the 18/02/2022, at about 12:30pm, he was in the library, located at Earlwood.
2. He needed assistance to scan a document to his flash drive.
3. He approached a staff; Ms Helen for assistance. Unfortunately, Ms Helen was on her break and told him that she was on her break.
4. FXQ then approached [Mr G]. Another staff of the Library, for the same reason (l.e to assist him with the scanning).
5. FXQ stated that unfortunately, but unsuprisingly, [Mr G] scolded at him terribly, demanding that he carry out the scanning himself
6. [Mr G] insisted that he has taught FXQ how to scan a document on more than one occasion.
7. FXQ reminded [Mr G] that he has a severe disability and that he cannot comprehend practical things as quick as others, given his disabilities.
8. FXQ stated that to his chagrin, [Mr G] scolded at him with a very disrespectful and commanding tone and ask that he carry out the scan himself
9. [Mr G] then walked off, in the presence of [Ms C] and another visitor at the library at the time.
10. FXQ then approached [Ms C] and demanded for the email address of someone more superior in position to [Mr G].
11. FXQ stated that [Ms C] was hesitant in providing him with both the name of [Mr G] and the email address, most probably because they work in the same office together (supporting a mate)
12. [Ms C] insisted on two different occasions, in consulting [Mr G] before finally telling him that his name is [Mr G].
13. [Ms C] brought out a complaint form and handed it to FXQ to fill
14. FXQ became distraught and upset, he then entered into google, the name of the Manager, Community and Cultural services, city of Bankstown Canterbury, he spoke with a staff who promised him that action would be taken.
15. FXQ stated that his greatest upset, was that it was not the first time it happened. That on three different occasions, [Mr G] had scolded, bullied and intimidated him and decline to provide service, called him ''dumb" inferring that he was not a smart person, despite having knowledge of his disability.
16. FXQ gave details of this three incidents as follows;
17. that he was in the library and needed help to print out a form, he asked [Mr G] to assist him on the computer.
18. [Mr G] did as though he did not hear, FXQ alleges that he waited for [Mr G], but he did not come.
19. FXQ alleges that he had to go and remind him after several minutes. [Mr G] reluctantly came. FXQ said he showed [Mr G] where he needed the assistance. [Mr G] questioned FXQ as to why he would be asking for assistance in such minor issue, as how to print a document.
20. FXQ alleges that he told [Mr G] that the system could not let him print in the format he used previously.
21. [Mr G] then tried to assist him, but could not do it and eventually, he left.
22. FXQ alleges that he went back to [Mr G] and told him that he could not go back to the page that he was previously after his efforts. [Mr G] became upset and bullied him terribly.
23. FXQ alleged that he was In the library again, in around November 2021 and needed assistance to photocopy a document. He asked [Mr G] for help by approaching his desk. FXQ alleged that [Mr G] immediately frowned his face and asked FXQ to do it himself FXQ alleges that when he tried to follow the format he was shown previously, he could not get it right. He went back and asked [Mr G] again for assistance, [Mr G] became so enraged and called him ''dumb". FXQ became very upset and at this time, he informed [Mr G] of his psychological injury. [Mr G] left grumbling and looking at him with disgust.
24. FXQ alleged that in the third incident, he was in the library, sometime in December, 2021 and needed assistance to photocopy his ''passport". He asked [Mr G] for help. [Mr G] refused and replied that he had showed FXQ how to photocopy before.
25. FXQ then asked to speak with another staff, [Mr G] then replied that the other staff was on her break and that if FXQ cannot wait, he can as well go else where. FXQ alleged that an elderly man in his 60's was present on the day and said words to the effect that ''dont worry about it mate". FXQ said that he felt sick to his stomach.
The Respondent's statements from Mr G, Ms C and Ms Z contain evidence which contradicts the Applicant's statement. Factual disputes are not determined in the context of the Tribunal's consideration of whether or not to grant leave under s 96(1) of the Act. As discussed above at [12], the Applicant's evidence must be accepted and taken at its highest. I therefore do not take into consideration the Respondent's evidence, to the extent that it conflicts with that provided by the Applicant.
The questions for determination are whether, accepting the Applicant's evidence of what occurred on 18 February 2022, the Respondent's conduct constituted unlawful discrimination under the Act, and whether it would be fair and just in the circumstances for the complaint to proceed. The Applicant needs to establish that the Respondent provides services, and that they were discriminated against (as defined by s 49B of the Act) in a manner which was unlawful under s49M. The conduct which is unlawful under s 49M is limited to either:
1. refusing to provide the services, or
2. in the terms on which the services are provided.
The manner in which the services are provided is not grounds for unlawful discrimination.
In the context of alleged discrimination under the similarly worded s 66K(1) of the Equal Opportunity Act 1984 (WA) Brennan CJ and McHugh J said in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 (IW) at 16-17:
"In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides."
The services in this case are providing self-service technology to library customers for scanning, copying and printing, and assistance to library customers when requested to access that technology. These services are not obviously associated with a statutory function of the Respondent, but may be ancillary services such as those contemplated in IW. In IW it was claimed that granting or refusing planning approval by the Council was a service. The High Court disagreed. It recognised, nevertheless, that there may be ancillary services associated with a statutory function such as disseminating information to ratepayers about its function.
On the Applicant's evidence it appears that the services were provided to him. Although there may have been, from his perspective, an initial refusal to assist him, ultimately he was provided with the assistance requested and he was and is able to access the self-service technology at the Earlwood Library. I find therefore that there has been no 'denial of services' within the meaning of s 49M(1)(a) of the Act.
To substantiate a claim of direct discrimination the Applicant therefore needs to demonstrate that he was provided the services on less favourable terms than are provided to other persons without his disability. To substantiate a claim of indirect discrimination the Applicant would need to demonstrate that he was required to comply with a requirement or condition in the terms on which the services were provided to him, that a substantially higher proportion of people without his disability are or were able to comply with that requirement or condition, but that he was unable to do so because of his disability, and the requirement or condition was not reasonable in the circumstances.
Terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance: see Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]. Section 49M does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.
In consideration of whether there is any direct discrimination, there is no evidence of differential treatment between the Applicant and a comparator, and no evidence directly linking the Respondent's conduct to the Applicant's disabilities. As there is no direct evidence of causation on the ground of disability, a causal link between the applicant's disabilities and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. The inference cannot be made when more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness and Another [2000] NSWCA 29 and Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 70.
There is an absence of any facts or alleged facts from which the Tribunal could make a reasonable and logical inference that any of the alleged conduct was committed because of the applicant's disabilities. In my view, it is not probable that the Applicant could establish a causative connection between the conduct of the Respondent and his disabilities.
With respect to indirect discrimination, the only possible ascertainable condition or requirement being imposed by the Respondent was that the public access the technology without assistance. However the evidence provided by the Applicant demonstrates that the Respondent did offer assistance when it was requested:
The applicant submits, that he has seen other staffs on countless of occasions assisting other customers and elderly people with photocopying and scanning at the library and other libraries.
The Applicant complains that when he asked for assistance from Mr G, Mr G 'scolded at him terribly, demanding that he carry out the scanning himself', 'insisted that he has taught FXQ how to scan a document on more than one occasion', 'scolded at him with a very disrespectful and commanding tone and ask that he carry out the scan himself' and 'then walked off'. Accepting that evidence, it does not establish that the Applicant was denied assistance by the Respondent, only that Mr G did not provide the assistance on that occasion. The manner of the interactions between Mr G and the Applicant does not amount to the terms of which services are or were provided by the Respondent.
Based on the conclusions I have reached on the evidence and submissions made available to the Tribunal, I agree with ADNSW's reason for declining the Applicant's complaint on the basis that it was lacking in substance pursuant to s 92(1)(a)(i) of the Act.
The Applicant has not convinced the Tribunal on the balance of probabilities that it would be "fair and just" for leave to be granted. Requiring the Respondent to answer the complaint would be unfair in the circumstances. In my view, considering the evidence and submissions, it would not be fair or just for the Tribunal to grant leave in the circumstances.
Leave is therefore refused under s 96(1) of the Act.
[5]
Orders
1. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977.
[6]
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
[7]
Amendments
01 August 2023 - Anonymisation made to the applicants name throughout the decision
01 August 2023 - Publication restriction made
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: 01 August 2023