List of Legislation: ACT Civil and Administrative Tribunal ACT 2008

Acts Interpretation Act 1901

Australian Capital Territory (Self-Government) Act 1988 (Cth)

Disability Discrimination Act 1992 (Cth)

Discrimination Act 1991

Human Rights Commission Act 2005

List of Cases: Brooks v FCT [2000] FCA 721; 100 FCR 117 at 134-6

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16

Applicant DT 7/2023 v Amarso Pty Ltd (Discrimination) [2023] ACAT 56

Mansour v Dangar (appeal) [2017] ACAT 48

Sunol v Kerslake (Appeal) [2024] ACAT 35

The Commonwealth v Australian Capital Territory [2013] HCA 55

Subordinate legislation: Disability (Access to Premises - Buildings) Standards 2010

1. This is the second part of an appeal from the decision of the Tribunal in Applicant DT 7/2023 v Amarso Pty Ltd (Discrimination) [2023] ACAT 56 (original decision).
2. Further to a strike-out application lodged by the respondent on 9 July 2024, seeking that the matter be dismissed for want of jurisdiction, the Tribunal previously handed down a decision dismissing most grounds of appeal as being outside the scope of what can be appealed (previous appeal decision).[1] This decision deals with the remainder of the appellant's grounds, being those which the Tribunal is satisfied it has the jurisdiction to decide (subject to some concerns noted below in relation to determining matters involving Commonwealth legislation).
3. As noted in the previous appeal decision, the appellant has come legal training, but she is not a lawyer and is not represented. In the interests of expediting the matter, the Tribunal did its best to articulate, in a relevant legal sense, the arguments being made by the appellant on appeal. The Tribunal appreciates that this has caused some frustration to the respondent, but the Tribunal's goals are to decide this matter in an efficient and proportional manner.[2]
4. Those appellant's arguments on appeal, as formulated with assistance from the Tribunal, and having regard to the scope of an appeal and the provisions of the legislation in issue, are that the Original Tribunal:

(a) Erred in concluding that the low benches without arm or backrests installed at Jamison Plaza were compliant with the standard AS1428.2; or

(b) Erred in law by concluding that:

(i) Compliance with the notes in AS 1428.2 was not necessary;

(ii) Compliance with the disability standards excluded liability under the Discrimination Act.

1. The parties provided written submissions on these questions. The matter was then set down for a hearing, at which both parties largely relied upon their written submissions.
2. I apologise to the parties for the very considerable delay in finalising this decision.

1. I reiterate what I wrote in the previous appeal decision about the role of the Tribunal on appeal - the Appeal Tribunal's role is the identification correction of error[3] following a rehearing on the material before the Original Tribunal, plus any additional material, exceptionally, admitted. This requires a full and proper rehearing of the matter before the Original Tribunal.[4] However, it does not mean that this Appeal Tribunal may substitute its own discretionary decision for that of the Original Tribunal, in the absence of error. I have thoroughly reviewed both the factual material before the Original Tribunal and the legal submissions. I have also reviewed the law and relevant case law in this area, with a view to determining whether the Original Tribunal erred.

1. The original decision concerns a complaint made by the appellant (the complaint) to the ACT Human Rights Commission (the Commission) alleging a breach of the Discrimination Act 1991 (the Discrimination Act) in relation to access of premises.
2. Amongst other things, the complaint alleged that the seating in the Jamison Plaza shopping centre, of which the respondent is the owner, was discriminatory by reason of being:

(a) Too low for her to use, and

(b) Not having arm and back rests.

1. The Commission formed the view that the matter could not be resolved through conciliation and referred the matter to the Tribunal pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act).
2. At the original hearing, the Original Tribunal identified that two Acts could apply - the Territory's Discrimination Act, and the Commonwealth Disability Discrimination Act 1992 (Cth) (DDA).[5]
3. The respondent contended that if it met the relevant standards under the DDA, then there could be no breach of either the Discrimination Act or the DDA.
4. The Original Tribunal tracked through the provisions of the DDA, and concluded that:
   1. Section 12 makes the DDA applicable in States and Territories.
   2. Provision is made to enable any concurrent law in the States and Territories to operate instead of the DDA except in respect of standards, which remain binding as follows:

(1) A reference in this section to this Act is a reference to this Act as it has effect because of a provision of section 12.

(2) A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with discrimination on the grounds of disability.

(3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

(3A) Subsection (3) does not apply in relation to Division 2A of Part 2 (Disability standards).

(a) a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act (including a matter dealt with by a disability standard); and

(b) a person has made a complaint or initiated a proceeding under that law in respect of an act or omission in respect of which the person would, apart from this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act.

the person is not entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act. (emphasis added)

1. Standards are provided for in section 31, and compliance with them excludes any potential breach of the Act.[1]
2. In other words, the Original Tribunal found that if the "standards" made under section 31 of the DDA are complied with, then there is no breach of either Act in relation to relevant kinds of disability discrimination.
3. The Original Tribunal also noted that:

In addition, in the ACT, the Building Act - by requiring compliance with the Building Code of Australia (BCA), now called the National Construction Code (NCC); and the Planning and Land Development Act - by the Access and Mobility Code, require building owners to comply with the same standards.

1. The Original Tribunal then turned to the evidence that was before it, relevantly as follows:
   1. The relevant standards are AS 1428.1 and AS 1428.2.
   2. AS 1428 .1, deals with those aspects of access to and within a building that are regulated by the BCA, and AS 1428.2 covers those items not covered by building regulations such as furniture and fittings.
   3. Examination of the BCA and the Standards makes clear that the standards applicable to bench height or design are in AS 1428.2.
   4. The introduction to AS 1428.2 explains that its purpose is both to cover what has not been covered in AS 1428.1, but also to give enhanced requirements. It says that AS 1428.1 will cater for 80% of people with disabilities and AS 1428.2 for 90%. Both are intended to include ambulant as well as wheelchair users, but Part 2 of AS 1428.2 covers an extra 10%.
2. Turning to the factual findings, the Original Tribunal determined that:

34. The first is one that was there before the complaint and is located next to a rubbish bin. It does not have a back or arm rest. It was measured by a friend of [the Applicant] as being 41cm high. The respondent says all the benches are the same height and the second bench [6] is 43cm as is shown in literature provided by the supplier. The evidence from the supplier is more reliable than a handheld tape by a non-expert bending uncomfortably to hold the tape steady. The new bench has armrests and a back.

35. [The Applicant] cannot use them as they are too low for her. She also complains that the back slopes making sitting up straight using the back not possible. The standard is clause 27 of Part 2. It has notes that have encouraged [the Applicant]to argue that the standards have not been complied with. Notes in legislation are not read as part of the provision but as guidance only.[7] Clearly the standard is to be read the same way.

36. In any event, the standard says "The design and installation of seating shall be as follows: ... (b) where armrests are provided ...".

37. No height is mandated nor is an arm rest or back.

38. The notes are inconsistent. Note 1 says "seats should generally be 450mm high and where a high proportion of elderly users are anticipated, heights up to 520mm are preferred ... Where possible a range of seat heights should be provided." Note 2 then refers to a typical park bench in Figure 32 which has a height of 400mm to 460mm. Nothing is said about backrests.

39. While it may be correct to say it would be better if there was a higher seat up to 520mm, it is not mandated and, in our view, there is no breach of this standard by the respondent. In addition, armrests are optional.

1. Put more simply, the Original Tribunal was satisfied that the relevant standard was met. It concluded that:

40. The undisputed evidence is that [the Applicant] has a disability that is not catered for by the sanitary facilities or the benches. That is unfortunate. There may be other users of the Centre that would be assisted by higher seating and a higher toilet seat. It may be possible to provide this within the standards. Obviously, any encouragement by the respondent to attract users to its centre would be worth considering and it may be able to make some more adjustments that achieve greater amenity for [the Applicant] and potentially others.

41. What has been provided is not in breach of the relevant standards.

42. On one view, that is the end of it as the DDA expressly removes any unlawfulness where the standards are satisfied. We read the DDA as making the standards mandatory throughout the country and that is so even where there is concurrent legislation in States or Territories. The provision removing unlawfulness where the standards have been complied with arguably also applies to a complaint under the Act, but it could be clearer.

43. The definitions of direct or indirect discrimination might also be clearer. If the respondent did not provide a disabled toilet at all it would be in breach of the Act and if it provides one that does not meet the standards is likely to amount to discrimination in most cases.

44. The respondent has explained why if the standards are met there is no discrimination in this case. We agree with its submissions. The purpose of the standards is to provide certainty to providers of services or premises and to protect as many people with disabilities as practicable. To provide additional adjustments could interfere with other users. There are some disabilities that cannot be catered for. There is no suggestion here that the difficulties encountered by [the Applicant] are in any way directed at her personally and the bench installed in May was provided after receiving the complaint. [the Applicant] does not expressly argue that there is discrimination even if the standards are met but argues that they have not been met.

1. The appellant did not seriously contest the factual findings of the Original Tribunal is relation to the height of the benches. Her arguments go to legal error. In essence, she says that the Original Tribunal's reading of the DDA, and its conclusions about how that Act interacts with the Discrimination Act is wrong. She says that there must be compliance with both Acts, the respondent must make reasonable adjustments for her disability, and that the Original Tribunal has erred in law by concluding that "there are some disabilities that cannot be catered for."

1. As noted above, the complaint was made under Territory legislation and dealt with, initially, by Territory authorities - the HRC and, now, the Tribunal. However, due to the complexities of federalism, and the Territory's status as a territory of the Commonwealth, determination of this matter involved the interaction of the Territory law and Commonwealth law. This is important, because, as a matter of law, where a Territory and Commonwealth Act are inconsistent, the Territory Act will only operate if it can do so concurrently with Commonwealth Act.[6]
2. This case involves an allegation of discrimination in either the provision of access to goods, services and facilities or access to premises. Sections 19 and 20 of the Discrimination Act prohibit discrimination on these bases, as do sections 23 and 24 of the DDA. The Acts are not identical but provide similar prohibitions, and remedies for breach, including in relation to access to premises. For the most part, and without going into unnecessary detail, I am satisfied that it is possible to read the two Acts as complimentary, such that they can act concurrently. Concurrent operation is, in any case, consistent with section 13(3) of the DDA which, as set out in the reasoning of the Original Tribunal above, provides for current operation for most purposes. But not all.
3. As also identified by the Original Tribunal, section 13(3A) of the DDA provides that the concurrent operation presumption in section 13(3) does not apply in relation to Division 2A of part 2 of the DDA, which relates to "disability standards".
4. It is here that the Territory and Commonwealth acts diverge. The DDA establishes a kind of 'defence' to a breach of the anti-discrimination that applies where a so-called "disability standard" is in operation. The Territory has no such provision.
5. Broadly, section 31 of the DDA provides that the relevant Commonwealth Minister may formulate a disability standard in relation to any area in which it is unlawful for a person to discriminate. Section 32 of the DDA then provides that it is unlawful for a person to contravene a disability standard. This means that where a disability standard applies, it operates as a kind of minimum standard. However, it goes further than this.
6. Section 34 then provides that:

"if a person acts in accordance with a disability standard this Part (other than this Division) does not apply to the person's act."

1. The reference in section 34 to "this Part" of the Act is a reference to Part 2 of the DDA, which contains the provisions prohibiting disability discrimination, including section 23, which deals with discrimination in access to premises, and section 24, relating to goods, services and facilities, being the provisions applicable to this matter. The effect is that, if a person complies with a relevant disability standard, then they will not be in breach of the disability discrimination provisions in the DDA.
2. Relevantly to the matter currently before the Tribunal, the Minister has made a disability standard in the form of a Disability (Access to Premises - Buildings) Standards 2010 (Premises Standard). The effect of section 34 of the DDA is that compliance with the Premises Standard is a defence to a claim for disability discrimination under the DDA. In other words, if premiss if compliant, it is not liable for a discrimination claim under the Commonwealth Act in relation to that premises.
3. So, what does all this mean for a claim made under the Territory's Discrimination Act?
4. The Original Tribunal's conclusions on this point were set out in paragraph 42 and 44 of the original decision - "while it could be clearer", compliance with the Premises Standards removes liability under the Discrimination Act.
5. Having now carefully reviewed the legislative framework, I agree with the Original Tribunal's conclusion on this point.
6. In summary, the DDA is not intended to exclude or limit the operation a State or Territory law dealing with disability discrimination, provided that both Acts are capable of operating concurrently. However, as was identified by the Original Tribunal, section 13(3A) of the DDA makes it very clear that this intention does not apply where there is a relevant 'disability standard' that displaces the operation of the prohibitions in the DDA. The language used in section 31 of the DDA makes it clear that that a disability standard may operate to exclude state or territory law, even where capable of operating concurrently.
7. This interpretation is supported by the Explanatory Memorandum to the DDA Bill, which provides that the purpose of section 34 is to provide certainty:

Clause 34 - This Part not to apply if persons act in accordance with disability standards.

Disability standards are intended to be a standard which if abided by would protect a person from any other action under this Bill relating to action covered by those standards. It will not therefore be possible for a person to lodge a complaint alleging that someone has done an act where that person has done that act in accordance with a disability standard.

1. The question therefore turns to whether, for the purposes of this matter, a disability premises standard does operate to exclude territory law.
2. The Premises Standard does not say explicitly state whether it is or is not intended to affect the operation of a State or Territory law. This makes things less clear than they could be. However, given that:

(a) Section 13(3) of the DDA provides that the rest of the Act is intended operate concurrently with State and Territory laws, where possible, and section 13(3A) sets out an exception to that, stating that section 13(3) does not apply to the provisions relating to Disability Standards;

(b) Section 31 of the DDA specifically provides that a disability standard may provide that it is subject to State or Territory law; and

(c) the Premises Standard does not contain any provision allowing for dual operation;

the most straightforward reading of the Premises Standard is that it is intended to prevail over it and indeed exclude the operation of state and territory law.

1. The is consistent with the stated objects of the Premises Standard, as set out in Clause 1.3:

(a) to ensure that dignified, equitable, cost‑effective and reasonably achievable access to buildings, and facilities and services within buildings, is provided for people with a disability; and

(b) to give certainty to building certifiers, building developers and building managers that, if access to buildings is provided in accordance with these Standards, the provision of that access, to the extent covered by these Standards, will not be unlawful under the Act.

1. Briefly put, I am satisfied that the intention of the DDA is to establish a set of technical Standards governing disability access that give protection and certainty to a person who acts in accordance with them[7]. As such, the Premises Standards are intended to prevail over both the general prohibitions on discrimination in Part 2 of the DDA, and over State and Territory legislation. The consequence of this is that if the respondent has complied with the Premises Standards, then it will not be liable for discrimination in relation to access under either the DDA or the Discrimination Act. It is not open to the Territory to impose a higher or different standard for access to premises than is set out in the Standards.
2. This means that a primary question for the Original Tribunal as whether the respondent had met its obligations under the Premises Standards. The Original Tribunal found that it had. However, that is not the end of this appeal.

1. Before moving onto the other issues in this appeal, I would be remiss in my obligations to ensure that I have even have jurisdiction to decide this matter were I to not deal with one other issue of jurisdiction that arises from my finding that this matter is governed primarily by Commonwealth law.
2. Neither party made detailed submissions of this issue.
3. The relevant case is decision of the High Court in Citta Hobart Pty Ltd v Cawthorn[8] (Citta). This case is also one of the few to actually consider how the Premises Standards interact with state and territory discrimination legislation.
4. In Citta, the complainant, Mr Cawthorn, had paraplegia and relied on a wheelchair for mobility. He alleged that the respondent in that case, Citta, had discriminated against him in the design of its Parliament Square development to be built in central Hobart because a particular entrance would only be accessible by a staircase. He commenced proceedings in the Tasmanian tribunal under the Anti-Discrimination Act 1998 (Tas) ('the Tasmanian Act').
5. As part of its defence, Citta relied on section 109 of the Constitution, which provides that:

"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

This is a different test of inconsistency to that in the Self-Government Act, which governs the interaction between Territory and Commonwealth legislation.

1. Citta argued that section 34 of the DDA, by establishing the premises standards, created a defence which operated in such a way as to prevail over and exclude inconsistent parts of the Tasmanian Discrimination Act. This is, in large part, the same argument made by the respondent in this matter and accepted by the Original Tribunal.
2. The existence of this 'defence', and the position that it would prevail over the Tasmanian Act, does not appear to have been a controversial interpretation in the Citta litigation. Rather, the real issue in that case was the Tasmanian Tribunal's jurisdiction to determine a matter that "involve[d] the exercise of federal adjudicative authority". Citta followed on from another High Court decision known as Burns v Corbett,[9] the details of which I do not need to go into for this decision, In Citta the High Court ultimately held that in a case in which a claim or defence relying on the exercise of federal jurisdiction by a state tribunal was raised, the role of a state tribunal was limited to determining whether such a claim or defence was "genuinely raised and not incapable on its face of legal argument"[10] or whether the claim is "manifestly hopeless",[11] after which the state tribunal could not exercise jurisdiction. The application of the reasoning in Citta to this tribunal (as a territory tribunal, rather than body) has been considered by the tribunal in several cases, without final resolution.[12]
3. As I noted, neither party in this matter provided any submissions on this issue. As such, I am not in a position to reach any conclusions about it. Ultimately, however, for reasons that will be apparent, I do not need to, as I am satisfied that the appeal should be dismissed in any case. However, I note that it is an issue that may need to be decided at another time.
4. With that proviso, I will move onto the other issues.

The operation of the Premises Standards and their application in this case - did the Original Tribunal err in concluding that with the notes in AS 1428.2 was not necessary?

1. The Premises Standard includes definitions set out the meaning of "premises". There does appear to have been any doubt that the Jamison Plaza is a premises covered by and subject to the Premises Standard.
2. Clause 3 of the Premises Standard provides that:

These Standards apply to an action concerning the provision of access to relevant buildings (and facilities and services within them) to the extent that the provision of access is:

(a) a matter in relation to which, under Part 2 of the Act, it is unlawful to discriminate; and

1. Clause 3.2 of the Premises Standards deals with compliance under the Access Code. It provides:

(1) For section 3.1, a building certifier or building developer of a relevant building is taken to have ensured that the building complies with the Access Code if the building complies with:

(b) for a public transport building - Part H2 of the Access Code.

Note The provisions mentioned in paragraphs (a) and (b) are described as deemed-to-satisfy provisions. They are limited to matters relating to the design and construction of a building so this subsection applies only to building certifiers and building developers.

(2) Subsection (1) is not intended to limit the way in which a relevant building may otherwise satisfy the applicable performance requirements.

(3) Without limiting subsection (2), a relevant building is taken to comply with the Access Code if the building provides a level of access that is not less than the level that the building would have provided if it had complied with the provisions mentioned in subsection (1).

1. In other words, a building (other than a public transport building) is taken to comply with the Access Code is it provides "a level of access that is not less than" then provided in the Access Code:

These provisions are the 'Deemed-to-Satisfy' provisions of the Access Code. Many of these adopt and incorporate technical details found in the Australian Standards.[13] A second option for compliance is by using Performance or Alternative Solution pathways to meet the performance requirements,[14] but that is not in issue in this case.

1. It does not seem to have been suggested at first instance that the installation of street furniture was "not a matter covered by the Access Code." This was, however, raised by the appellant on appeal.
2. Having regard to those identified clauses of the Access Code (D3.1 to D3.12; E3.6; and F2.2 and F2.4), I agree that there are no requirements relating to street furniture or street seating in the Access Code. The provisions dealing with street furniture are found in clause 27 of the AS1428.2. AS1428.2 is not referenced by Premises Standard, or the National Construction Code (NCC) at all, except for public transport buildings, which the Jamison Plaza is not.
3. What are the consequences for compliance with the disability standards, where the subject matter of a disability discrimination claim is something not specifically dealt with in them? Does the provision "a level of access that is not less then that provided in the Access Code" mean that street seating, whether compliant or not, is simply not something that can be considered at all when the premises is a premises to which the Premises Standard applies? Or does it mean that street seating will always be subject to the discrimination claims, because there is no disability standard that specifically deals with it?
4. The Original Tribunal appears to have concluded former, noting that the Premises Standards had been determined to set a certain standard, and that "to provide additional adjustments could interfere with them"[15].
5. As I understand the appellant's argument, it is that this conclusion was wrong, and that because the Premises Standards do not cover fixed (or "street') furniture, the "defence" available under the Act is not available to the respondent in relation to the seating, notwithstanding that the respondent's premises otherwise meets the requirement of the Premises Standards.
6. The appellant did not make a detailed legal arguments on this point. However, she pointed to and filed printouts of "guidance" available online, including from organisations that install such furniture. In broad terms, that guidance asserts installation of benches must be in accordance with both the Australian Standard with the "notes" set out therein. None of these sources set out the legislative basis for this assertion. This makes it very difficult for me to assess her argument or understand the basis upon which she says that the Original Tribunal's conclusion on this point was legally wrong.
7. I agree with the Original Tribunal that the situation could be made a lot clearer. However, I am not satisfied that the Original Tribunal was wrong in its conclusion about how the DDA and the Premises Standard operations. It seems to me that as long as a building operator ensures access to the building and the services therein in accordance with the Premises Standards, then it will have a defence to a breach of the DDA (and hence also the Discrimination Act) in relation to that access to the premises and the facilities and services therein. As such, I do not find any error in the Original Tribunal's decision.
8. Even if I am wrong on this point, however, I am not satisfied that the Standards were in any case breached.

Did the Original Tribunal err in concluding that the low benches without arm or backrests installed at Jamison Plaza were compliant with the standard AS1428.2?

1. As a preliminary point, I note that only an extract of the relevant portion of AS1428.2 (ie. clause 27.2) was before the Original Tribunal. It does not appear that the full version of AS1428.2 was ever lodged. This means that I do not have a copy of, for example, the definition section.
2. Limited access to the full version of Australian Standards is a regular practical problem in the Tribunal. Australian Standards are not public documents and access to them is not free in the way that legislation generally is.
3. As to the actual issue before the Tribunal, it may be summarised as follows: In considering whether the two benches in issue in this case met the requirements of AS1428.2, the Original Tribunal interpreted AS1428.2 in accordance with the usual principles of statutory interpretation, and concluded that the "notes" could displace the plain meaning of the rest of the text. Was this the correct approach?
4. In her submissions, the appellant makes the point that an Australian Standard is not a legislative instrument, and submits that it should not be interpreted in accordance with the rules that apply to legislative instruments. The notes, she says, should be read as part of the mandatory minimum standards. In her submissions, she states:

"AS 1428.2 is not a statute. It is a legislative instrument (a regulation) provided as a supplement to the DDA and AS 1428.2 includes guide recommendations pertaining directly to street furniture. The recommendation for seating in pedestrian areas is that seat height should be around 400mm to 450mm. However, where a high proportion of elderly users are anticipated preferred seat height should be up to 520mm.

1. The appellant is quite correct that the starting point is that an Australian Standard is not a legislative instrument and is not binding as a matter of law. This means that the statutory principles that apply to the interpretation of legislation, such as those set out in the Commonwealth's Acts Interpretation Act 1901, would arguably not apply.
2. However, an Australian Standard can be incorporated by reference into legislation. Once this happens, the Australian Standards moves from being a voluntary, best practice guide to being a part of the Act, and the usual principles of interpretation apply.
3. For reasons set out above, I am not satisfied that AS1428.2 has been incorporated into the Premises Standards. However, assuming that they are binding, what is the consequence of this?
4. Section 27 of AS1428.2 appears to be the relevant minimum standard, identified by both parties at the original hearing:

27.1 General Street furniture, which includes objects such as seats, tables, drinking fountains, planter boxes, rubbish bins and the like, shall comply with the following:

(a) Objects shall not protrude into an accessible path of travel. Seats shall be a minimum of 500 mm away from the path of travel.

The design and installation of seating shall be as follows:

NOTES: 1 Seats should generally be 450 mm high but where a high proportion of elderly users are anticipated, heights up to 520 mm are preferred. Children and small people may prefer seats as low as 350 mm high. Where possible, a range of seat heights should be provided.

3 For outdoor tables, see Clause 24. (a) The front of the seat shall have a clear space between any legs at ground level to within 150 mm of the front edge of the seat, and to within 100 mm of the seat height to allow for rearward adjustment of feet when rising (see Figure 32(b)).

(b) Where armrests are provided, the top surface of the armrests shall be at a height of 260 ±40 mm above the seat.

2 The armrest should be within the centre of gravity of the seat.

(c) The front edge of the seat shall have a minimum radius of 30 mm.

(d) No edge or projection shall have a radius of less than 5 mm unless protected from contact with the user.

1. The Original Tribunal concluded that the notes were not a part of the Act and could not be relied upon. In reaching that conclusion, the original decision referenced the footnotes to this reference section 93 of the Legislation Act 2001 (ACT); the correct reference should be to section 13 of the Acts Interpretation Act. Nonetheless the effect is the same - under either Act, a note is not part of the Act. This is because the notes are added by the persons who draft the Act; they are not amended by parliament and may be altered by Parliamentary Counsel when drafting or consolidating an act.[16]
2. A note can, however, be an aid to interpretation.[17] Broadly speaking, they may be used an interpretative aid, but if they conflict with the substantive provision, then it is the substantive provision applies,[18] because it is the substantive provision that is approved by parliament.
3. If AS1428.2 is to be interpreted as a statutory instrument, the appellant's argument becomes problematic - because the notes are clearly inconsistent with text.
4. Note 1 says "seats should generally be 450mm high and where a high proportion of elderly users are anticipated, heights up to 520mm are preferred ... Where possible a range of seat heights should be provided." "Preferred", "where possible" and "should" are terms that allow for a degree of discretion. Nothing in the language makes the provision of "heights up to 520" compulsory. This interpretation is the same even if the notes are relied upon.
5. Note 2 then refers to a typical park bench in a diagram (figure 32) which has a height of 400mm to 460mm. Even were I to read the "should" in a more compulsory way, which is contrary to the ordinary language of the clause, there is nothing before the Tribunal to suggest that Jamison Plaza has a high number of elderly people (as opposed to, say, a nursing home). Clearly, a range of heights is to be preferred, but again, this is not a requirement. There may be reasons why it is not appropriate. There is no error in the Original Tribunal's conclusions.
6. The situation is similar in relation to armrests. The notes say that a_rmrests should be provided for all seats and that an armrest should be within the centre of gravity of the seat._ This appears to match the diagram, but the actual text says "(b) where armrests are provided ...", which suggests, through the use of "where", that they may not always be, notwithstanding the contrary language in the note.
7. The standard says nothing about a requirement for backrests at all. At best, it could be said that such a requirement may be implied from the diagram in the standard, but again, the diagram is inconsistent with the express language used.
8. The imprecise language is unhelpful in the present circumstances but can be explained when the document is viewed in context. The wording in the notes in AS1428.2 appears to be focused on establishing a best practice guide. It is probably true to say that street furniture that lacks armrests is not disability compliant, in the sense that it is not recommended or ideal in accordance with the relevant Australian Standard - but that is a different thing to concluding that its presence means the building does not meet the requirements of the Access Code at all or that it amounts to a breach of the Discrimination Act or the DDA.
9. I should note for completeness the following submission made by the appellant in her submissions on appeal:

18. According to the recommendations bench seats with no back or arm rests, by definition don't comply with DDA requirements. However, they can still be used in DDA/AS 1428.2 compliant table settings where wheelchair space is provided. Benches with no back or arm rests are not covered by the DDA as they do not qualify as street furniture for a disabled person. They will only comply with AS 1428.2 if they in a complaint table setting or otherwise, they must be constructed in dimensions suitable for an ambulant person to use them. That means the seat must be of a usable height and they must have the required back and arm rests."

1. The argument was not put to the Original Tribunal, and I cannot find the basis upon which it is asserted anywhere in the material before the Original Tribunal. That is not to say it is not there, and it may be the passages cited about table settings are found elsewhere in the standard, or perhaps in external guidance. but the appellant did not direct the Original Tribunal to it, and she has not directed me to it. All I can rely upon in terms of the Standards is what has been put before the Original Tribunal, and this Appeal Tribunal.
2. As such, even if the Access Code required compliance with the Australian Standard, it does not appear that AS1428.2 has been breached. I see no error in the Original Tribunal's conclusions about this.

1. The appellant appears to argue that, even if the respondent is compliant with the Access Code, the respondent must still make "reasonable adjustments" to accommodate her needs:

The Respondent is aware that I cannot use the benches yet has refused or failed to make reasonable adjustments to make them usable for me and other people with similar disabilities. Obviously, the Respondent's approach to my complaint is unreasonable and they have indirectly discriminated against me.

48. I submit that it would be appropriate to make orders for the Respondent to make reasonable adjustments to the benches so that I can use them. There should also be an order that the Respondent has indirectly discriminated against me.

In support of this, the appellant sites the cases of Haraskin and Ryan an award of compensation would be appropriate.

1. While this submission does not form one of the grounds before the Original Tribunal, in the interests of completeness I will deal with it here.
2. Sections 5 and 6 of the DDA define direct and indirect discrimination, respectively, to include a failure to make 'reasonable adjustments'.
3. The definition sections, however, do not impose liability for discriminatory conduct in abstract. Rather, Part 2 of the DDA which sets out the circumstances under which disability discrimination is prohibited. If the premises standards are complied with, then no liability arises. There is no obligation in such circumstances to make 'reasonable adjustments'.
4. I do feel a degree of discomfort about this conclusion, particularly in a situation where the Premises Standards do not expressly deal with the subject matter of this claim (the benches), but the intention of the scheme established by the Act appears clear. The Premises Standard, by prescribing the nature of the access that must be provided, relieve building certifiers, building developers and building managers from the broader obligation of complying with a general disability discrimination prohibition where met. The Territory Act cannot operate in such a way as to override this.

1. In answer to the questions posed by the appellant:

(c) Did the Original Tribunal err in concluding that the low benches without arm or backrests installed at Jamison Plaza were compliant with the standard AS1428.2?

(d) Did the Original Tribunal err in law by concluding that:

(iii) Compliance with the notes in AS 1428.2 was not necessary;

(iv) Compliance with the disability standards excluded liability under the Discrimination Act.

1. There being no discernible error by the Original Tribunal, the appeal is dismissed.

[Appellants name changed to "Appellant AA 42/2023]

[1] Noting in particular that the Tribunal's jurisdiction to hear matters under the Discrimination Act 1991 arises from a referral under s. 53A of the Human Rights Commission Act 2005, and the Tribunal's jurisdiction on appeal rises only in relation to a question of fact or law before the Original Tribunal as per s. 79(3) of the ACT Civil and Administrative Tribunal Act 2008, and accordingly it not appropriate for new matters to be raised on appeal in this matter.

[2] ACT Civil and Administrative Tribunal Act 2008 s.6(c), 7(a)

[3] Mansour v Dangar (appeal) [2017] ACAT 48 at [18]

[4] Applicant DT 7/2023 v Amarso Pty Ltd (Discrimination) [2023] ACAT 56

[6] Australian Capital Territory (Self-Government) Act 1988 (Cth) S. 28(1) - see The Commonwealth v Australian Capital Territory [2013] HCA 55

[7] s 34

[8] [2022] HCA 16

[10] Citta at [35] per the plurality of Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ

[12] Sunol v Kerslake (Appeal) [2024] ACAT 35

[14] See subsections 3.2(2) and (3) of the Premise s Standards

[16] See Statutory Interpretation in Australia [4.49]

[17] Acts Interpretation Act s 15AD

[18] E.g, Brooks v FCT [2000] FCA 721; 100 FCR 117 at 134-6