Haraksin v Murrays Australia Limited

Haraksin v Murrays Australia Limited - [2013] FCA 217 - FCA 2013 case summary — Zoe

INTRODUCTION 1 The applicant was born with osteogenesis imperfecta (brittle bone disease). She is reliant on a wheelchair for mobility. The respondent operates a coach service between Sydney and Canberra. The applicant alleges that the respondent breached certain provisions of the Disability Discrimination Act 1992 (Cth) (the DD Act) by unlawfully discriminating against her with respect to access to premises and with respect to the provision of services on the ground of her disability. The applicant also alleges that the respondent breached various provisions of the Disability Standards for Accessible Public Transport 2002 (Cth) (the Standards). 2 The respondent owns a total of 154 buses and coaches. (Except where it is necessary to distinguish between buses and coaches I shall simply refer to them collectively as the respondent's vehicles). The respondent uses approximately 17 of its vehicles for fixed route services (as distinct from charter services) including its Sydney-Canberra service. 3 On 14 August 2009 the applicant telephoned the respondent and requested to book a seat on a wheelchair accessible coach travelling from Sydney to Canberra on or about 24 August 2009 and returning on or about 26 August 2009 so that she could attend a conference. The applicant was informed by the person who took her call that the respondent did not have any wheelchair accessible vehicles and that her booking could not be taken. The applicant made other arrangements to travel to and from Canberra. 4 It is common ground that the applicant suffers from a "disability" as defined in s 4(1) of the DD Act. It is also common ground that in August 2009 the respondent did not have any wheelchair accessible buses or coaches in its fleet. 5 The specific breaches of the DD Act and the Standards that are asserted by the applicant against the respondent are as follows: the respondent unlawfully discriminated against the applicant with respect to access to premises and the provision of goods and services contrary to s 5, s 23(a), (b) and (c) and/or s 24(a) and (b) of the DD Act (the direct discrimination claims); the respondent unlawfully discriminated against the applicant with respect to access to premises and the provision of goods and services contrary to s 6, s 23(a), (b) and (c) and/or s 24(a) and (b) of the DD Act (the indirect discrimination claims); and the respondent breached s 32 of the DD Act and s 33.1, s 33.2 and Schedule 1 of the Standards (the Standards claims). 6 Late in the hearing the applicant was given leave to file an amended originating application (the amended application). 7 The substantive relief claimed by the applicant in the amended application falls into the following four categories: Paragraphs 1 to 4 of the amended application claim various declarations, all of which are to the effect that the respondent engaged in unlawful discrimination. In each case the unlawful discrimination relied upon relates to the applicant's attempt to arrange travel between Sydney and Canberra in August 2009; Paragraph 5 of the amended application claims an order directing the respondent not to repeat or continue the conduct referred to in the declarations claimed in paragraphs 1-4. Paragraphs 6 to 9 of the amended application claim declarations in relation to the applicant's alleged non-compliance with the Standards. These include declarations that the respondent was, and continues to be, in breach of s 32 of the DD Act and that "the Respondent is an operator and/or provider of a public transport service" which included "both the scheduled fixed route services and the charter services". Paragraphs 10 to 14 of the amended application claim various mandatory orders. One of these is an order requiring the respondent to comply with the Standards. Other mandatory orders claimed would require the respondent to only purchase coaches that comply with the Standards and not to put coaches already purchased by it into service without ensuring that they are wheelchair accessible. 8 I will return to the question of what relief should be granted in respect of any breaches of the DD Act or the Standards that are established by the respondent. At this stage I will merely note that there is a significant dispute as to the applicant's right to press for much of the relief she has claimed on the ground that she is precluded from doing so by virtue of s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act).

[5]

The DD Act 9 The objects of the DD Act are set out in s 3. One object of the Act is to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of access to premises and the provision of facilities and services. 10 Sections 5 and 6 are in Pt 1, Div 1 of the DD Act. They provide: 5 Direct disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments. 6 Indirect disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and (c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability. (3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. (4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition. 11 Section 11 is also found in Pt 1, Div 1 of the DD Act. It provides: 11 Unjustifiable hardship (1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following: (a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned; (b) the effect of the disability of any person concerned; (c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; (d) the availability of financial and other assistance to the first person; (e) any relevant action plans given to the Commission under section 64. Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community. (2) For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship. 12 Sections 23 and 24 are found in Pt 2, Div 2 of the DD Act. These sections provide: 23 Access to premises It is unlawful for a person to discriminate against another person on the ground of the other person's disability: (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. 24 Goods, services and facilities It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person. 13 Section 29A of the DD Act provides: 29A Unjustifiable hardship This Division (other than section 30) does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator. 14 Sections 31(1) and 34 are found in Pt 2, Div 3 of the DD Act. They provide: 31 Disability standards (1) The Minister may, by legislative instrument, formulate standards, to be known as disability standards, in relation to any area in which it is unlawful under this Part for a person to discriminate against another person on the ground of a disability of the other person. … 34 This Part not to apply if person acts in accordance with disability standards If a person acts in accordance with a disability standard this Part (other than this Division) does not apply to the person's act. 15 Section 125(1) of the DD Act provides: (1) This Act does not confer on a person a right of action in respect of the doing of an act that is unlawful under a provision of Part 2 unless a provision of this Act expressly provides otherwise.

[6]

The AHRC Act 16 Section 46P of the AHRC Act provides for the lodgement of complaints with the Australian Human Rights Commission (the Commission) by persons alleging unlawful discrimination. Such a complaint may be lodged by a "person aggrieved" by the alleged unlawful discrimination. Section 46PA provides that a complainant may at any time amend the complaint with the leave of the President. 17 A complaint that is made to the Commission under s 46P must be referred to the President (s 46PD). The President must, subject to some limited exceptions, inquire into a complaint (s 46PF). The President is given power to require a person to provide relevant information or relevant documents (s 46PI). The President may decide to hold a compulsory conference, and if so, the President must direct the complainant and respondent to attend (s 46PJ). Section 46PH provides for termination of a complaint by the President. There are various grounds upon which the President may terminate a complaint under s 46PH. They include: if the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination (subs (1)(a)); if the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance (subs (1)(c)); if the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person (subs (1)(e)); if the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or Federal Magistrates Court (subs (1)(h)); if the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation (subs (1)(i). 18 Section 46PO(1)-(4) of the AHRC Act relevantly provides: 46PO Application to court if complaint is terminated (1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. … (2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re-employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter. 19 Under s 46PO(1), any person who was an affected person in relation to the terminated complaint may make application to either the Federal Court or the Federal Magistrates Court. An "affected person" is, for this purpose, a person on whose behalf the complaint was lodged (s 3(1)).

[9]

THE APPLICANT'S COMPLAINT 27 The applicant lodged a written complaint of unlawful discrimination with the Commission on 20 August 2009. She did so using a complaint form made available on the Commission's website. 28 In the written complaint the applicant stated that she had been discriminated against because she has a disability. She nominated 14 August 2009 as the date upon which the event about which she complained took place. She described the event in these terms: I need to go to Canberra at the end of August for work. I rang on 14 August 2009 asking about a wheelchair accessible bus to Canberra, return. I was told they have absolutely no accessible buses in their fleet. She said, well the government has buses attached to Countrylink, but we have none. 29 The applicant also stated that it was necessary for her husband to drive her to Canberra for a work related conference, and that her employer would have to pay much higher travel costs because the applicant could not travel by bus. 30 The applicant specified some desired outcomes in her written complaint. She said that she wanted the respondent to do the following: (1) Purchase some wheelchair accessible buses and comply with the Standards. (2) Advertise the availability of wheelchair accessible buses on their routes. (3) Train their staff in the use of the relevant equipment on their buses. (4) Provide monetary compensation of around $400 to the applicant's employer for her travel expenses. 31 On 31 March 2010 the Commission wrote to the applicant's solicitor advising that the decision had been taken to terminate the complaint pursuant to s 46PH(1)(i) of the AHRC Act. Representations were then made by the applicant's solicitor to the Commission in support of a request that the decision to terminate the complaint be revoked. On 7 April 2010 the Commission wrote to the applicant's solicitor advising that the decision to terminate the complaint had been revoked. 32 However, on 24 May 2010 the Commission again decided to terminate the applicant's complaint in accordance with s 46PH(1)(i). It did so on the basis that the President of the Commission, by her delegate, was satisfied that there was no reasonable prospect of the complaint being settled by conciliation. The letter from the Commission to the applicant's solicitor advising of the termination described the applicant's complaint in these terms: Ms Haraksin uses a wheelchair. Ms Haraksin states that on 14 August 2009 she contacted Murrays to arrange a bus trip from Sydney to Canberra for work but claims that Murrays advised her that it could not arrange a wheelchair accessible bus to take her to Canberra. 33 The letter advised that the applicant's complaint had been considered under ss 5, 6, 11, 24, 29A and 32 of the DD Act. 34 The applicant commenced this proceeding against the respondent on 22 July 2010.

[10]

THE AMENDED STATEMENT OF CLAIM 35 The pleading upon which the applicant's case has been contested is in her amended statement of claim filed 23 September 2011 (the ASC). 36 Paragraphs 1 to 3 of the ASC relate to matters that are admitted and uncontroversial. Paragraph 4 alleges that the respondent is an operator or provider of a public transport service. Paragraph 5 alleges that the respondent was required to comply with the Standards from the date they commenced, namely 23 October 2002. There are some particulars to paragraph 5 that seek to justify by reference to the specific parts of the Standards the allegation made in that paragraph. 37 Paragraph 6 of the ASC alleges that on 14 August 2009 the respondent breached s 32 of the DD Act and s 33.1, s 33.2 and Schedule 1 of the Standards. Particulars are then given. The particulars relate to the applicant's dealings with the respondent on 14 August 2009 during which she attempted to make a booking with the respondent for travel between Sydney and Canberra. 38 Paragraphs 6A and 6B of the ASC were first introduced by way of amendments made on the date the ASC was filed. Paragraph 6A alleges that "[t]he applicant claims that the respondent is in breach of section 32 of the DD Act and section 33.1 of the Standards from 14 August 2009 and ongoing." The same allegation is made in paragraph 6B but it refers to s 33.2 of the Standards instead of s 33.1. Some particulars are given under each of these paragraphs but they do not advance matters and need not be set out. 39 The direct discrimination claims are pleaded in paragraphs 7-9 of the ASC. These paragraphs and relevant particulars are as follows: 7. The applicant claims that the respondent has unlawfully discriminated against her in the provision of services and/or access to premises on the ground of her disability, in breach of section 5 and sections 23(a), (b) and (c) and/or 24(a) and (b) of the DD Act. Particulars a. The applicant claims that the "services" were transport services pursuant to the definition of "services" in section 4(1) of the DD Act. b. The applicant claims that the "premises" were a vehicle, namely a bus or coach pursuant to the definition of "premises" in section 4(1) of the DD Act. 8. The respondent in providing the applicant with services and/or access to premises treated the applicant less favourably because of her disability than in circumstances that are not materially different, the respondent treated or would have treated a person without her disability. 9. The respondent in providing the applicant with services and/or access to premises did not make, or proposed not to make, reasonable adjustments for the applicant and the failure to make reasonable adjustments had, or would have, the effect that the applicant, because of her disability, was treated less favourably than a person without the disability in circumstances that are not materially different. Particulars a. The applicant relies on paragraphs 6, 6A and 6B above. b. The respondent refused to provide the applicant with a bus or coach that was wheelchair accessible. c. The respondent did not provide wheelchair accessible means of access to a bus or coach. 40 The indirect discrimination claims are pleaded in paragraphs 10-12 of the ASC. These paragraphs and relevant particulars are as follows: 10. The applicant claims that the respondent has unlawfully discriminated against her in the provision of services and/or premises on the ground of her disability, in breach of section 6 and sections 23(a), (b) and (c) and/or 24(a) and (b) of the DD Act. Particulars a. The applicant repeats paragraphs 6, 6A, 6B and 7 and 9 above. 11. The respondent in providing the applicant with services and/or access to premises discriminated against her on the ground of her disability, as the respondent required the applicant to comply with a requirement or condition, that is, that the applicant travel on a bus or coach that is not wheelchair accessible, which the applicant was not able to comply with and the requirement or condition has the effect of disadvantaging persons with a disability. Particulars a. The applicant repeats paragraphs 6, 6A, 6B, 7 and 9 above. b. The requirement or condition is not reasonable. 12. The respondent in providing the applicant with services and/or access to premises discriminated against her on the ground of her disability, as the respondent required the applicant to comply with a requirement or condition, that is, that the applicant travel on a bus or coach that is not wheelchair accessible, which the applicant was able to comply with the requirement or condition only if the respondent made reasonable adjustments and the respondent did not make reasonable adjustments and the failure to make reasonable adjustments has the effect of disadvantaging persons with a disability. Particulars a. The applicant relies on paragraphs 6, 6A, 6B, 7, 9 and 11 above. 41 There are several points to make about the ASC: First, paragraphs 6 and 6A allege, in substance, that the respondent was in breach of s 32 of the DD Act and the Standards on 14 August 2009 and at all times thereafter. These allegations underpin the applicant's claim to declarations that the respondent breached, and continues to breach, s 32 of the DD Act and Standards. They also underpin the applicant's claim to orders requiring that the applicant not continue or repeat such breaches. Secondly, paragraphs 7 to 9 contain the allegations of direct discrimination. As one would expect, the particulars given under paragraph 6 are repeated. However, the particulars also refer back to paragraphs 6A and 6B. Why they should do so is not apparent. Non-compliance with s 32 of the DD Act or the Standards is not an element of a claim of direct discrimination. Thirdly, paragraphs 10 to 12 contain the allegations of indirect discrimination. Again, the particulars given in relation to each of these paragraphs also refer back to paragraphs 6A and 6B. As with the claim of direct discrimination, the claim of indirect discrimination does not depend upon the respondent having breached s 32 of the DD Act or the Standards.

[12]

Section 5 44 The first question to be decided in relation to the applicant's claim of direct discrimination concerns s 5 of the Act. Did the respondent "discriminate" against the applicant on the ground of the applicant's disability? If this question is answered in the affirmative, it will be necessary to determine whether the respondent did so in one or more of the circumstances specified in s 23(a), (b) and (c) and s 24(a) and (b) of the DD Act. In approaching the matter in this way I recognise, of course, that s 5 is an interpretative provision which determines how the word "discriminate" as used in (inter alia) s 23 and s 24 is to be interpreted. 45 The relevant facts are not in dispute. On 14 August 2009 the applicant sought to make a booking which would allow her to travel between Sydney and Canberra on a bus service operated by the respondent. The respondent did not accept the applicant's booking because it did not have any vehicles equipped with wheelchair access. 46 The respondent did not make, or propose to make, any adjustment for the applicant which would have facilitated travel by the applicant on one of the respondent's vehicles engaged in Sydney-Canberra services. The most obvious adjustment the respondent could have made was to arrange for a vehicle that was equipped with wheelchair access to be deployed on the Sydney-Canberra service so as to allow the applicant to undertake her journey at or around the time she needed to travel. This was an adjustment that would have permitted the applicant to utilise the respondent's service just as people without the applicant's disability were able to do. The only question is whether this was a reasonable adjustment for the purposes of s 5(2) of the DD Act. 47 The respondent did not submit that the deployment of a vehicle equipped with wheelchair access was not a reasonable adjustment. In submissions the respondent merely observed that, although it did not have any vehicles equipped with wheelchair access in August 2009, the position changed significantly during the following year. There is no evidence to indicate why, given such vehicles could be acquired and deployed by the respondent in 2010, they could not have been acquired or deployed in August 2009 or earlier. 48 The adjustment to which I have referred - namely, the deployment of a vehicle equipped with wheelchair access - was a reasonable adjustment for the purposes of s 5(2) of the DD Act which the respondent failed to make for the applicant when she sought to arrange travel between Sydney and Canberra in August 2009. As a result of that failure, the applicant was treated less favourably than other people would have been treated had they sought to travel between Sydney and Canberra using the respondent's service. In these circumstances, I am satisfied that the respondent discriminated against the applicant on the ground of the applicant's disability within the meaning of s 5(2) of the DD Act.

[21]

Background to the Standards 63 The Standards were formulated by the Attorney General pursuant to s 31(1) of the DD Act and came into effect on 23 October 2002. 64 At the time the Standards were formulated s 31(1) of the DD Act was different from s 31(1) in its current form. It relevantly provided: The Minister may formulate standards, to be known as disability standards, in relation to: (a)-(c) … (d) the provision of public transportation services and facilities by: (i) the Commonwealth; and (ii) a State; and (iii) a Territory; and (iv) a public authority of the Commonwealth; and (v) an instrumentality of a State; and (vi) a public authority of a Territory; and (vii) any other person to a person with a disability; … 65 Section 1.5 of the Standards states that the Standards are accompanied by Guidelines, and that passengers, operators and providers need to consult the Guidelines when interpreting the Standards. The parties have placed before me what I was told were the relevant Guidelines which are the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3) (the Guidelines). 66 The purpose of the Standards is "to enable public transport operators and providers to remove discrimination from public transport services" (Standards s 1.2(2)). They apply to "all operators and the conveyances" they use to provide public transport services. They also apply to "providers and supporting premises and infrastructure" (Standards s 1.4(2)). 67 The Standards include a number of relevant definitions. These include: 1.12 Conveyance (1) A conveyance includes any of the following, to the extent that they are used to provide a public transport service: (a) aircraft; (b) buses or coaches; (c) ferries; (d) taxis; (e) trains, trams, light rail, monorails, rack railways; (f) any other rolling stock, vehicle or vessel classified as public transport within its jurisdiction by regulation or administrative action of any Government in Australia. (2) A conveyance does not include the following: (a) charter boats (including water taxis); (b) limousines (including chauffeured hire cars); (c) self-drive rental cars. … 1.23 Public transport service (1) A public transport service is an enterprise that conveys members of the public by land, water or air. (2) A public transport service includes: (a) community transport conveyances that are funded or subsidised by charity or public money and that offer services to the public; and (b) foreign aircraft and vessels that carry passengers to, from, or in Australia and that offer services to the public. (3) A public transport service does not include a service that provides adventure travel (for example, white water rafting, ballooning or amusement park rides), except to the extent that the service operates to move the public from one location to another distant location. 68 The Standards also define "infrastructure" and "premises" as follows: 1.18 Infrastructure (1) Infrastructure is any structure or facility that is used by passengers in conjunction with travelling on a public transport service. (2) Infrastructure does not include any area beyond immediate boarding points (for example, bus stops, wharves, ranks, rail stations, terminals). … 1.21 Premises (1) Premises are structures, buildings or attached facilities that an operator provides for passenger use as part of a public transport service. 69 The Standards define "operator" and "provider" as follows: 1.20 Operator (1) An operator is a person or organisation (including the staff of the organisation) that provides a public transport service to the public or to sections of the public. (2) A public transport service may have more than one operator. … 1.22 Provider (1) A provider is a person or organisation that is responsible for the supply or maintenance of public transport infrastructure. (2) A provider need not be an operator. 70 As previously mentioned, there is an issue on the pleadings as to whether the respondent is a "provider" for the purposes of the Standards. Senior Counsel for the applicant did not address this issue in her submissions. There does not appear to be any evidence to establish that the respondent is a provider of "infrastructure" as that term is defined for the purposes of the Standards.

[23]

Target dates 74 Part 32 of the Standards is concerned with their application on and after the day they came into effect (23 October 2002). Sections 32.1 and 32.2 relevantly provide: 32.1 Effect and application of these Standards These Standards apply, on and from the date they come into effect under section 31 of the Disability Discrimination Act 1992, to: (a) public transport services provided with: (i) newly constructed premises or infrastructure; or (ii) conveyances entering service after these Standards come into effect; or (iii) premises, infrastructure or conveyances that have undergone substantial refurbishment or alteration; or (iv) additional or replacement equipment in premises and infrastructure or on conveyances; and (b) new or revised ancillary services that are provided as an adjunct to the public transport operation; and (c) new or updated information provided to the public. 32.2 Manufacture to be completed before target dates In all cases, manufacture or other work that is required to ensure compliance with these Standards is to be completed before the target dates set out in Schedule 1. 75 Part 33 of the Standards is headed "Compliance". Sections 33.1 and 33.2 provide: 33.1 Date for compliance with these Standards - new conveyances, premises and infrastructure Operators and providers must comply with the specified sections of these Standards for all new premises, infrastructure and conveyances brought into use for public transport service on and from the date these Standards come into effect under section 31 of the Disability Discrimination Act 1992. 33.2 Date for compliance with these Standards - conveyances, premises and infrastructure in use at target dates Operators and providers must comply with the specified sections of these Standards for premises, infrastructure and conveyances that are still in use for public transport at the target dates specified in Schedule 1. 76 Schedule 1 to the Standards is headed "Target dates for compliance". It specifies various requirements that must be met by operators and providers in respect of a number of target dates ranging from 31 December 2007 to 31 December 2032. By 31 December 2007, operators and providers are required to comply with the relevant Standards "by 25% of each type of service" in relation to a range of particular requirements including, relevantly, "Boarding" and "Allocated space". For the target date of 31 December 2012 the relevant percentage is 55%. For the target date of 31 December 2017 the relevant percentage is 90%.

[24]

Unjustifiable hardship 77 Section 33.7 of the Standards is concerned with unjustifiable hardship. It provides: 33.7 Exceptional cases - unjustifiable hardship (1) It is not unlawful to fail to comply with a requirement of these Standards if, and to the extent that, compliance would impose unjustifiable hardship on any person or organisation. (2) However, compliance is required to the maximum extent not involving unjustifiable hardship. (3) In determining whether compliance with a requirement of these Standards would involve unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including the following: (a) any additional capital, operating or other costs, or loss of revenue, that would be directly incurred by, or reasonably likely to result from, compliance with the relevant requirement of these Standards; (b) any reductions in capital, operating or other costs, or increases in revenue, that would be directly achieved by, or reasonably likely to result from, compliance with a relevant requirement of these Standards; (c) the extent to which the service concerned operates, or is required to operate, on a commercial or cost-recovery basis; (d) the extent to which the service concerned is provided by or on behalf of a public authority for public purposes; (e) the financial position of a person or organisation required to comply with these Standards; (f) any effect that compliance with the relevant requirement of these Standards is reasonably likely to have on the financial viability of a person or organisation required to comply, or on the provision of the service, or feature of service, concerned; (g) any exceptional operational, technical or geographic factors, including at a local or regional level, affecting a person or organisation's ability to comply with a relevant requirement of these Standards; (h) financial, staffing, technical, information and other resources reasonably available to a person or organisation required to comply with these Standards, including any grants, tax concessions, subsidies or other external assistance provided or available; (i) benefits reasonably likely to accrue from compliance with relevant requirements of these Standards, including benefits to people with disabilities, to other passengers or to other persons concerned, or detriment likely to result from non-compliance; (j) detriment reasonably likely to be suffered by an operator, provider, passenger or other person or organisation concerned, including in relation to equality of amenity, availability, comfort, convenience, dignity, price and safety of services or effectiveness and efficiency of operation if compliance with relevant provisions of these Standards is required; (k) if detriment under paragraph (j) involves loss of heritage values - the extent to which relevant heritage value or features of the conveyance, building or other item concerned are essential, and to what extent incidental, to the transport service provided; (l) whether compliance with a requirement of these Standards may reasonably be achieved (including by means of equivalent access as provided for in sections 33.3 to 33.5) by less onerous means than those objected to by a person or organisation as imposing unjustifiable hardship; (m) any evidence regarding efforts made in good faith by a person or organisation concerned to comply with the relevant requirements of these Standards; (n) if a person or organisation concerned has given an action plan to the Commission under section 64 of the Disability Discrimination Act 1992 - the terms of that action plan and any evidence regarding its implementation; (o) the nature and results of any processes of consultation, including at local, regional, State, national, international, industry or other level, involving, or on behalf of, an operator concerned, any infrastructure providers as relevant, and people with a disability, regarding means of achieving compliance with a relevant requirement of these Standards and including in relation to the factors listed in this section; (p) if a person or organisation seeks a longer period to comply with these Standards, or a requirement of these Standards, than is permitted by the preceding sections on Adoption and Compliance - whether the additional time sought is reasonable, including by reference to the factors set out in paragraphs (a) to (o) above, and what undertakings the person or organisation concerned has made or is prepared to make in this respect. (4) If a substantial issue of unjustifiable hardship is raised having regard to the factors listed in paragraphs (3) (a) to (p), the following additional factors are to be considered: (a) the extent to which substantially equal access to public transport services (including in relation to equality of independence, amenity, availability, comfort, convenience, dignity, price and safety) is or may be provided otherwise than by compliance with these Standards; (b) any measures undertaken, or to be undertaken by, on behalf of, or in association with, a person or organisation concerned to ensure such access. (5) For these Standards: unjustifiable hardship is to be interpreted and applied having due regard to the scope and objects of the Disability Discrimination Act 1992 (in particular the object of removing discrimination as far as possible) and the rights and interests of all relevant parties.

[26]

Section 46PO 79 I have previously set out s 46PO of the AHRC Act. The effect of s 46PO is now well settled. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at [37]-[39] Katz J said: 37 It appears to me that s 46PO(3) of the [Act] is only incidentally concerned with those allegations of fact which can be made in an application under s 46PO(1) of the [Act]; it is primarily concerned, not with such allegations, but rather with the legal character which those allegations of fact can be claimed to bear. In the two situations with which it deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint. 38 Paragraph (a) of s 46PO(3) of the [Act] proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed. 39 Paragraph (b) of s 46PO(3) of the [Act], on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character "arise[s] out of" the facts which are now being alleged. 80 Katz J also favoured a construction of s 46PO(3) that does not permit the applicant to rely on acts of discrimination which occur after a complaint has been lodged with the Commission. His Honour's decision has been followed by various judges of this Court including Tracey J in Crvenkovic v La Trobe University [2009] FCA 374. In his judgment Tracey J (at [8]) referred to some relevant decisions in which Charles v Fuji Xerox Australia Pty Ltd was applied and (at [11]) noted that he agreed with Katz J's reasoning. 81 In Travers v New South Wales [2000] FCA 1565 at [8] Lehane J suggested that some degree of flexibility was provided for by the terms of s 46PO(3). However, Lehane J did not suggest that the Court had jurisdiction to determine a claim in respect of an act of unlawful discrimination which is alleged to have taken place after termination of a complaint. 82 The Full Court in Grigor-Scott v Jones (2008) 168 FCR 450 at [18]-[19] explained the legislative intention underlying s 46PO as follows: 18 Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination. The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made. It only lies in respect of the subject matter of the complaint to the Commission. Importantly, for the purpose of this appeal, it only lies against the respondents to the terminated complaint. Also importantly, the application commencing the proceeding upon the cause of action must be brought within 28 days after the date of issue of the s 46PH(2) notice, or such later time as the Court allows. 19 The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1). 83 In the present case it is not suggested that the scope of the applicant's complaint was expanded between the date it was lodged and the date it was terminated. It is necessary, therefore, to focus upon the terms of the complaint as lodged with the Commission on 20 August 2009. 84 In the complaint the applicant stated that she needed to go to Canberra at the end of August for work, that she asked about a wheelchair accessible bus to Canberra and back, and that she was told that the respondent had no wheelchair accessible buses in the fleet. In substance, her complaint was that the respondent would not accept a booking that would allow her to travel on the respondent's service between Sydney and Canberra at the end of August 2009. This was the act of alleged unlawful discrimination about which the applicant complained and which is now the subject of the findings set out at [49]-[55].

[29]

The respondent's charter services 90 The applicant seeks relief which, if granted, would compel the respondent to comply with the Standards not only in relation to its fixed route services operating between Sydney and Canberra but also in relation to all of the respondent's other fixed route services and the respondent's charter services. 91 The question whether the Standards apply to the respondent's charter services depends upon whether they constitute a "public transport service" as that expression is defined in s 1.23 of the Standards. It was submitted by Senior Counsel for the respondent that the Court had no power to make any orders in relation to the respondent's charter services because they are not public transport services for the purpose of the Standards. 92 A public transport service is defined in s 1.23 as an enterprise that conveys members of the public. Adopting a literal interpretation of the definition, a public transport service is an enterprise that provides a type of service. However, the definition must be interpreted in its proper context. The preferable view of s 1.23 is that it defines a public transport service as a type of service that is provided by an enterprise rather than as an enterprise that provides a type of service. This interpretation is consistent with s 31(1) of the DD Act as it stood when the Standards were formulated. Section 31(1) allowed the Minister to formulate the Standards relating to the provision of public transportation services. 93 There are two other reasons why the definition of public transport service should be understood as referring to a service provided by an organisation rather than an organisation that provides a service. 94 First, this interpretation of s 1.23 accommodates the language used in s 1.20(1) which defines an "operator" as "a person or organisation … that provides a public transport service …". Thus, the operator is not defined to be the person or organisation that conducts the relevant enterprise but as the person or organisation that provides the relevant service. 95 Secondly, the Standards frequently refer to operators or providers and the services or infrastructure they provide. For example, s 32.1 specifies when the Standards apply, and does so, in the case of services, by reference to the date upon which relevant services are provided. 96 One consequence of this interpretation of s 1.23 is that the Standards apply not to all vehicles used in the respondent's enterprise, but only to those vehicles used by the respondent to provide the relevant service, namely the carriage of members of the public. 97 It is the persons conveyed who must be members of the public for the definition in s 1.23 to apply. Not everyone is a member of the public for the purposes of the definition. In determining whether the persons conveyed in the respondent's vehicles are members of the public it is necessary to consider what it is about those persons that led to them being conveyed. They will only be members of the public for the purposes of the definition if they are conveyed in the respondent's vehicles as members of the public. 98 If a bus is chartered to a sporting club so that the members of the club might be conveyed to a sporting event, then the members of the club will be conveyed not as members of the public but as members of the club. It is their membership of the club which entitles them to ride in the bus. Of course, the position would be different if members of the public were also permitted to ride in the bus. In that situation the respondent would be conveying members of the public for the purposes of the Standards. 99 But it does not follow that every charter arrangement entered into by the respondent will be for the conveyance of persons who are not members of the public for the purposes of the Standards. If a provider of transport services to the public chartered a bus from the respondent to convey members of the public due to the provider's lack of capacity then there is no reason to think that the respondent would not be conveying members of the public merely because it did so pursuant to a charter arrangement. 100 It was submitted on behalf of the applicant and the Disability Discrimination Commissioner that the definition of "public transport service" should be given a liberal interpretation. In this regard, they submitted that a broad interpretation of the words used would serve to promote the objects of the DD Act. 101 I accept the submission that the Standards should be liberally construed. However, the construction of the relevant definition contended for by the applicant and the Commissioner is founded upon the proposition that every person who is conveyed in the respondent's vehicles will be a member of the public. In my view, this construction ignores words that impose an important limitation upon the area in which the Standards were intended to apply. Of course, as the Commissioner submitted, even if the Standards do not apply to charter services, ss 23 and 24 of the DD Act still apply. 102 The question whether any charter services provided by the respondent constitute a public transport service ultimately depends upon the particular charters that are undertaken. I think it may be inferred from the evidence that many of the persons conveyed in the course of the respondent's charter operations are conveyed as members of various clubs or associations or travel or tour groups and not as members of the public. These persons are conveyed by the respondent because of some particular association or relationship they have with the charterer.

[30]

Discretion 103 Section 46PO(4) of the AHRC Act provides that, if the Court is satisfied that there has been unlawful discrimination by a respondent, then it may make such orders as it thinks fit. The discretion conferred on the Court under s 46PO(4) is a broad one. There are no mandatory criteria specified governing the exercise of the discretion. In this sense the discretion is at large. Of course, the discretion must be exercised judicially and in light of the objects and purposes of the AHRC Act and, in the present case, the DD Act. 104 The scope of the applicant's complaint to the Commission is a significant matter that is relevant not merely to the jurisdiction of the Court under s 46PO but also to the scope of the relief that the Court might grant or refuse in the exercise of its discretion. The applicant never sought to charter a bus or coach from the respondent nor did she seek to ride on a bus or coach that had been chartered by someone else. Even if I was satisfied that the Standards applied to all of the respondent's charter operations, I would not grant any relief directed at such operations. 105 In my view, the relief to be granted to the applicant should be limited to that which is reasonably necessary to ensure that the unlawful discrimination which the applicant has established took place is not repeated by the respondent. I think this can be achieved by making a declaration in an appropriate form that makes it clear that the respondent has unlawfully discriminated against the applicant together with an order requiring that the respondent comply with the Standards in specified respects. I do not think it is necessary or appropriate to make declarations or orders in the general terms sought by the applicant in the amended application. 106 My provisional views in relation to the appropriate form of order are as follows. The order requiring compliance with the Standards should be limited to the respondent's fixed route services operating between Sydney and Canberra. It should also specify the particular provisions of the Standards with which the applicant will be bound to comply. In this regard, the order should require compliance with Part 8 and Part 9 of the Standards. The order should be expressed to operate for a period of two years from the date it is made. 107 The suggestion that the order be expressed to operate for two years only is not intended to imply that the respondent will not be bound by the Standards beyond that time. The suggested two year limitation reflects the view that it may not be appropriate to make an order that operates indefinitely thereby putting the respondent at risk of being in contempt of Court for any breach of the Standards that it may be guilty of any time into the future.

At a glance

Court

Decision date

Before

Source

Judgment (32 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)

Cited By (2)