Victorian Civil and Administrative Tribunal|2000-08-31|Before: Kellam J

Olympic Roads and Transport Authority [2000] VCAT 1635 (31 August 2000)

Application for an exemption under the Equal Opportunity Act 1995 -applicants responsible for arranging bus transport at the Sydney 2000 Olympic Games and Paralympic Games - consideration of s. 83 of the Equal Opportunity Act in view of the objectives and scheme of the Act.

APPLICANTS Olympic Roads and Transport Authority, and Bus 2000 Limited

BEFORE The Hon. Justice Kellam, President, and Dr G. P. Lyons, Senior Member

APPLICANTS Ms C. Ronalds of Counsel, instructed by Blake Dawson Waldron

1. In this proceeding the Olympic Roads and Transport Authority ("ORTA") and Bus 2000 Limited ("Bus 2000") seek an exemption pursuant to section 83 of the (Victorian) Equal Opportunity Act 1995 ("the Act"). The application is made with the consent of the Victorian Department of Infrastructure ("the Department").

2. As well as seeking an exemption for themselves, the applicants seek an exemption on behalf of yet-to-be-identified Victorian bus operators. At the time the application was made, the applicants stated that their planning was not sufficiently advanced to allow relevant Victorian bus operators to be identified. The applicants propose to provide the Tribunal with a list of relevant Victorian bus operators by 15 August 2000, "so that a specific exemption order may be made in respect of each operator" (ORTA's written submission of 7 June 2000).

3. In brief, the applicants have responsibility for organising bus transport for the Sydney 2000 Olympic Games and Paralympic Games ("the Games"). In organising bus transport at the Games for athletes, officials, media personnel and spectators, the applicants desire to enter into contractual arrangements with bus operators in Victoria for the supply of between twenty and forty-five "ultra-low-floor and accessible buses" ("low-floor buses") for up to nine weeks. Low-floor buses are particularly suitable for carrying people with special access needs - whether athletes, officials, media personnel or spectators.

4. If between twenty and forty-five low-floor buses were to go to Sydney to assist with transport arrangements at the Games, the applicants anticipate that they or the bus operators with whom they contract, could face claims of unlawful discrimination by Victorian people with special access needs who find their low-floor bus services are reduced, or removed, for up to nine weeks. To guard against this risk, ORTA and Bus 2000 bring this application for an exemption from section 42 of the Act.

5. Section 42 of the Act makes discrimination in the provision of goods and services unlawful. "Discrimination" is defined in sections 7 to 9 of the Act. "Services" are defined in section 4 of the Act to include "services connected with transportation or travel".

6. The application was heard on 29 and 30 June 2000. At the conclusion of the hearing on 30 June 2000, we decided that the application should be dismissed and gave ex tempore reasons for our decision. At that time we stated that we would provide more detailed reasons in due course. We do so now.

7. Initially the application was made by ORTA only, and it was said to be made on behalf of:

"(a) ORTA, a statutory body representing the Crown in the right of New South Wales, established under the Olympic Roads and Transport Authority Act 1998 (NSW);

(c) Bus 2000 Ltd [ACN 089 305 260], a company limited by guarantee, established to procure (under contract with ORTA) the required numbers of buses, coaches, drivers and support staff for the Olympic and Paralympic bus task;

(d) Public and private bus operators in Victoria from whom ORTA and Bus 2000 Ltd will be procuring accessible buses during the Olympic and Paralympic Games periods".

8. At the commencement of the hearing, Ms Chris Ronalds, Counsel for those seeking the exemption, advised us that the application was in fact brought by ORTA and Bus 2000, with the consent of the Department.

9. ORTA was created by the New South Wales Government to be the body responsible for co-ordinating the planning and delivery of Games' transport services. ORTA is responsible to the Government of New South Wales for the co-ordination of public transport associated with Games-related movements such as those for spectators, as well as non-Games related public transport such as the movement of commuters to and from work. ORTA is also responsible to the Sydney Organising Committee for the Olympic Games for planning and co-ordinating transport for "members of the Olympic and Paralympic family, including athletes, officials and accredited media" (ORTA's application dated 24 May 2000).

10. Bus 2000's objective is to carry out "the bus task" for the Games, under contract to ORTA. To carry out its objective, Bus 2000 will recruit and employ some 4,500 drivers and 500 support staff, and it will procure and operate some 3,800 buses.

11. The Department, amongst its many duties, administers all public transport services in Victoria, including oversight of the State's bus network. The applicants' written material included the following:

"During 1998 and 1999 the Victorian public transport system was privatised. All operators became private companies, operating under long term franchise agreements with the Victorian Government. The contracts which the Department of Infrastructure has with private operators require compliance with the Disability Discrimination Act 1992 and the Equal Opportunity Act 1995..." (ORTA's supplementary written submission dated 26 June 2000).

12. The Tribunal received the application on 26 May 2000 and held a directions hearing on 31 May 2000. At the directions hearing, the Tribunal directed the then applicant, ORTA, to advertise its application in Victoria's two main newspapers, with advertisements inviting written submissions for or against the application. The Tribunal also directed ORTA to provide written responses to three questions formulated by the Tribunal. The questions were:

(a) How many ultra-low floor and accessible buses do Victorian bus operators have?

(b) How many ultra-low floor and accessible buses is ORTA seeking from Victorian bus operators?

(c) What measures would be implemented to mitigate the effects - so far as regular bus passengers are concerned - of the reduced number of ultra-low floor and accessible buses on Victorian bus routes for the nine week period of the Games?

13. ORTA advertised its application in The Age and Herald Sun newspapers on 3 and 5 June 2000, and provided written responses to the Tribunal's questions on 7 June 2000. On its own initiative, ORTA provided the Tribunal with supplementary written submissions on 26 June 2000.

14. The Tribunal received three written submissions in response to ORTA's newspaper advertisements outlining its application and calling for any written submissions to be provided to the Tribunal. The written submissions were from the Equal Opportunity Commission Victoria, Disability Rights Victoria, and Bus 2000. (Bus 2000 was not an applicant at that time).

15. In summary, the Equal Opportunity Commission Victoria stated that "the exemption should only be granted if conditions are attached to alleviate the disadvantage and inconvenience for those who will have reduced service and that any financial disadvantage be compensated." Disability Rights Victoria opposed the granting of an exemption, "on the grounds that such an exemption is not consistent with the objectives nor the scheme of the Equal Opportunity Act". Bus 2000 supported the application in view of the significant challenges facing it in procuring and operating "the bus fleet for the Games ... the largest bus passenger transport operation ever implemented in Australia."

16. At the hearing of the application before us on 29 and 30 June 2000, Counsel for the applicants called three witnesses: Mr Peter Jones, Chief Executive Officer of Bus 2000; Mr Stephen McIntyre, Director, Strategic Planning, ORTA; and Mr Eric Moore, Regional Manager (Southern Region) of the Department. Mr Stephen Blair, Statewide Coordinator of Disability Rights Victoria, represented that organisation.

17. During the course of the hearing, the applicants arranged for us to inspect both a low-floor bus, and a standard bus. We noted that a person with a mobility disability could enter the low-floor bus without the need to negotiate any steps. This is because the low-floor bus has a suspension system which allows the bus to "kneel" (or tilt down on the passenger-entry side).

18. Once a low-floor bus "kneels" at a bus stop, a person with a mobility disability can enter by using a ramp, activated by the bus driver. This ramp comes out from under the bus's entry area to connect the bus to the footpath. A person using a wheelchair can then enter or leave the low-floor bus without requiring assistance. This is not possible with a standard bus, due to the entry and exit steps.

19. While the cost of a standard bus is approximately $165,000, the cost of a low-floor bus is approximately $302,000 to $330,000.

20. The Olympic Games are to be held in Sydney between 15 September and 1 October 2000. The Paralympic Games are to be held in Sydney between 18 October and 29 October 2000.

21. Games' bus services will commence in Sydney on 2 September 2000 and continue until 4 November 2000, a period of nine weeks. It is this period for which the applicants seek an exemption.

22. Generally, the maximum number of low-floor buses will be needed during the Games' competition periods, mentioned above.

E. The number of buses sought from Victorian bus operators

23. During the Olympic Games, the applicants estimate that they will need 142 low-floor buses. During the Paralympic Games, they estimate that they will need 205 low-floor buses (Exhibit A2).

24. According to the applicants, Victoria has some 170 low-floor buses. The applicants seek to use between 20 and 45 of these buses during the Games (or between 12 per cent and 26 per cent of Victoria's stock of low-floor buses).

25. In addition ORTA and Bus 2000 are seeking to obtain low-floor buses from Queensland and New South Wales for use at the Games, and possibly from South Australia.

26. Under section 83 of the Act, the Tribunal has a broad discretion to grant exemptions. In effect, section 83 empowers the Tribunal to grant an exemption for conduct or behaviour which would otherwise be unlawful under the Act (or which would otherwise arguably be unlawful under the Act). Section 83 is as follows:

(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption -

(a) from any of the provisions of this Act in relation to -

(b) in the circumstances referred to in section 28; or

(2) An exemption remains in force for the period, not exceeding 3 years, that is specified in the notice.

(3) The Tribunal, by notice published in the Government Gazette -

(a) may renew an exemption from time to time for the period, not exceeding 3 years, specified in the notice;

(b) may revoke an exemption with effect from the date specified in the notice, which must be a date not less than three months after the date the notice is published.

(4) An exemption may be granted or renewed subject to any conditions the Tribunal thinks fit.

(5) An exemption may be granted, renewed or revoked -

(a) on the application of a person whose interests, in the opinion of the Tribunal, are or may be affected by the exemption; or

27. How should the Tribunal exercise the discretion conferred by section 83? In considering this matter, we have gained assistance from the decision of the then Equal Opportunity Board in Stevens v Fernwood Fitness Centres Pty Ltd [1996] EOC 92-782. It should be noted that we were not referred to, nor are we aware of, any decision on an exemption matter made by a superior court in Victoria or elsewhere in Australia. Furthermore we observe that Counsel for the applicants stated her agreement with the approach taken in Fernwood (although Ms Ronalds said she considered that the Fernwood approach needed to be applied with flexibility, with each application being considered very much on its own facts). In Fernwood, the matter for consideration - an application for revocation of an existing exemption - arose under section 40 of the Equal Opportunity Act 1984. The Board considered the principles that should guide the exercise of its discretion regarding the possible revocation.

28. In our view, the Fernwood principles that have relevance for present purposes - when our task is to consider the application of section 83 of the Act - are as follows.

29. First, the discretion to grant an exemption should not be exercised unnecessarily. A Tribunal should consider exercising the discretion only if there would be an arguable case of unlawful discrimination. In Fernwood, the Board said:

"It is necessary for an applicant for exemption to show that there is at least an arguable case that the circumstances might constitute discrimination to which the Act would apply". (At 78 - 805).

30. If there is an arguable case of unlawful discrimination, then the second Fernwood principle that is relevant is as follows: the provision empowering the Tribunal to grant an exemption should not be construed in isolation. The provision must be construed in the light of the objectives and scheme of the Act. Section 3 sets out the Act's objectives, as follows:

(a) to promote recognition and acceptance of everyone's right to equality of opportunity;

(b) to eliminate, as for as possible, discrimination against people by prohibiting discrimination on the basis of various attributes;

(d) to provide redress for people who have been discriminated against or sexually harassed."

31. We consider these matters further in part I of these Reasons. The aim at this point is to outline the legal framework within which the application was made.

32. The applicants tendered written material before us, called evidence and made legal submissions.

33. The written material that the applicants produced to us outlined a number of general considerations about the Games. For example, we were informed of the fact that the Games will create the biggest demand for passenger transport ever experienced in Australia.

34. In their written material, the applicants considered the feasibility of using two other accessible transport options - accessible mini-buses with hoists to enable wheelchair access, and the use of large platform loading ramps in conjunction with standard buses that have been modified to allow wheelchair access - but concluded that these options were not practical. The written material then put forward the following matters for consideration:

(a) The fact that the applicants are committed to providing equal access to the Games for people with a disability and for people without a disability.

(b) Demand for low-floor buses for use at the Games is high, that the stock of such buses in Australia is insufficient for regular services to be maintained while low-floor buses are transferred to Sydney for use at the Games, and that the applicants are experiencing difficulties in procuring the necessary numbers of low-floor buses for the Games in the absence of the operators having the "comfort" of an exemption.

(c) As the Games are the largest sporting events in the world, they will "showcase Australia's ability to provide equal access for people with a disability ... However without an exemption ... it is believed that it will not be possible for ORTA to achieve the best possible standard of accessible transport for the Games. Therefore it is submitted that it is in the public interest that an exemption under section 83 be granted" (para 5.6.3 of ORTA's application).

(d) A range of people will experience disruption to their normal lives during the Games. For example, many Sydney residents will experience significant traffic changes, and many Sydney businesses will be (adversely) affected through the removal of nearby parking, and from disruption to deliveries to their businesses. The applicants put the view that if the Games are to be a success, commitment and involvement from people all over Australia is necessary. In this regard, the applicants stated that:

"While the ability of an individual to gain access to a bus service is important to that person and possibly to other people, that focus must be put within the context of the broader parameters. The circumstances in which it will operate are unique. Australia will be a showcase to the world ..." (ORTA's responses to questions posed by the Tribunal, page 5).

(e) Low-floor buses taken off their regular routes will be used intensively at the Games. "Therefore whilst there will be some detriment to the passengers seeking to use regular services it will be offset by the benefit to those travelling to the Games, or as part of Games-time transport". (ORTA application, para 5.7.1).

(f) Any detriment to those who normally use low-floor buses will be a temporary one, limited to a maximum of nine weeks. No ongoing or long-term disruption to the status quo is envisaged.

(g) The staging of the Paralympic Games, including transport arrangements of the highest standard, "will make a significant positive contribution to the image of people with a disability generally in the Australian community". (ORTA's response to questions posed by the Tribunal, page 5).

(h) The applicants are taking action to mitigate the effects of the reduction in the level of existing low-floor bus services to regular passengers by seeking to obtain low-floor buses from operators in several States, the aim being to reduce the adverse impact in any one area. In addition, the applicants indicated that bus operators will advertise any changes to low-floor bus services in their local areas, "and any alternative transport options proposed". (ORTA application, para 8.2). It can be noted that the applicants propose that the mitigating measures they outlined should be conditions upon which any exemption would be granted.

35. Mr Peter Jones, Chief Executive Officer of Bus 2000, gave evidence. Further to his witness statement (Exhibit A1), Mr Jones gave the following evidence as to how Bus 2000 would implement ORTA's bus transport requirements for the Games.

36. First, Mr Jones said that in the event that Bus 2000 contracted with Victorian bus operators for the supply of low-floor buses, it would be up to the Department to determine exactly which low-floor buses would be taken from which bus routes. Mr Jones said the Department would be aware of the bus routes on which the need for low-floor buses is greatest, and the routes on which the need is least - bearing in mind the possibility of alternative transport being available (for example, accessible taxis).

37. Mr Jones gave evidence that in Victoria, it is only Ventura Bus Lines ("Ventura") which publishes bus timetables showing when low-floor buses operate on particular bus routes. He said that Ventura qualifies this information by stating that low-floor buses operate on particular services at particular times "so long as a low-floor bus is available" (or words to that effect). Other bus lines that operate low-floor buses on Victorian bus routes do not advertise when low-floor buses operate. Generally, passengers wanting information about when low-floor buses operate need to contact the bus operators.

38. Mr Jones said that bus operators would publish timetables showing the times for low-floor buses only when the numbers of such buses had increased. He said it would be "some time yet" before this occurred.

39. Secondly, Mr Jones said that in discussing with Victorian bus operators the possible provision of low-floor buses for use at the Games, Bus 2000 was emphasising the need for the bus operators to continue to honour existing contracts throughout the Games' period. Mr Jones also said that Bus 2000 has no desire to "help operators lose business" through the removal of low-floor buses from particular bus routes (if the removal of the buses from the routes in question would have an adverse impact on the bus operators' businesses).

40. Thirdly, while precise numbers have not been determined, Mr Jones said that Bus 2000 wants to obtain some low-floor buses from Victorian operators only for the Olympic Games period, some only for the Paralympic Games period, and some for the whole nine week period. At any one time, Mr Jones said the maximum number of low-floor buses at the Games - supplied by Victorian bus operators - would be 45.

41. Fourthly, if Bus 2000 contracted with Victorian bus operators for the supply of low-floor buses for use at the Games, Mr Jones said that it would be "a joint effort" between Bus 2000, the Department and the bus operators themselves to ensure that the correct number of buses go to Sydney, and no more (for example, to meet a last-minute shortfall of low-floor buses for a particular Games bus service).

42. Fifthly, Mr Jones said that Bus 2000 would attempt to obtain the use of some Victorian "accessible mini-buses equipped with lifts" for use during the Games by people with mobility disabilities, but would not seek to obtain the use of accessible mini-buses that serve the needs of places such as homes for the aged or educational facilities for people with disabilities. Mr Jones said Bus 2000 is not seeking to use any Victorian "accessible taxis" during the Games. Such taxis generally have space for only one person with a mobility disability, and, in any event, Bus 2000 is keen to leave such taxis in their usual areas during the Games - so that they are able to assist with accessible transport in the event that some low-floor buses go to Sydney.

43. Mr Stephen McIntyre, Director of Strategic Planning, ORTA, gave evidence about the complexity of planning transport arrangements for events the size of the Games.

44. By way of background information, Mr McIntyre estimated that some nine to ten per cent of attendees at the Olympic Games would have some form of disability (with "several per cent" of this number having a mobility disability). For the Paralympics, Mr McIntyre estimated that some fifteen per cent of attendees would have some form of disability, with a slightly higher proportion having a mobility disability (compared with attendees at the Olympic Games).

45. Mr McIntyre said it was in the third quarter of 1999 that ORTA obtained agreement from the various sporting federations, from the International Olympic Committee and from the International Paralympic Committee regarding the broad parameters of its proposed transport arrangements. Mr McIntyre said that under the terms of ORTA's contract with Bus 2000, ORTA does not need to issue its final bus requirements to Bus 2000 until July 2000. However, Mr McIntyre said that ORTA has been providing Bus 2000 with progressive updates of its requirements for some time.

46. Mr McIntyre said it was in the early part of the year 2000 that Bus 2000 had indicated to ORTA that although bus operators are interested in supplying low-floor buses for use at the Games, the operators have some concerns about entering contractual agreements with Bus 2000 for the supply of such buses - due to unease about the possibility of complaints arising under legislation dealing with disability discrimination. As a result, ORTA has decided to seek an exemption from the Human Rights and Equal Opportunity Commission under the (Commonwealth) Disability Discrimination Act 1992, and to seek exemptions from relevant State bodies - pursuant to the appropriate State legislation - in Victoria, New South Wales and Queensland.

47. Mr McIntyre gave evidence that in New South Wales, a process is underway to identify which low-floor buses could be removed from their normal bus routes, and be used at the Games, so as to cause minimal impact on passengers with mobility disabilities who normally use the bus services. Mr McIntyre said the process underway in New South Wales involves seeking information from bus operators about the numbers of regular and occasional passengers with mobility disabilities who use particular low-floor bus services; and information about the availability of accessible taxis and community transport in particular areas. He said that in New South Wales, the NSW Department of Transport and Bus 2000 would form a view as to which low-floor buses could be taken off particular bus routes and used at the Games only when firm information has been compiled. Information needed to be gathered from individual bus operators about which services carry passengers with disabilities as there is no register of people with disabilities who use particular services.

48. Mr McIntyre said ORTA expects a similar process to occur in Victoria, the aim again being to identify the bus routes from which low-floor buses could be removed - for use at the Games - while causing minimal impact for passengers with mobility disabilities.

49. Mr McIntyre said the present lack of information about the numbers of passengers with special access needs on particular routes has caused difficulties in planning the application by ORTA (and by Bus 2000) for an exemption. Mr McIntyre said that only when the outcomes of exemption applications are known, and when the numbers of low-floor buses that can be removed from particular routes are known, can detailed planning be undertaken.

50. Mr McIntyre said that by the end of July 2000, ORTA expects that Bus 2000 and the Department will have come to a view as to which low-floor buses can be removed from which Victorian bus routes - for use at the Games - with minimal impact on passengers with mobility disabilities. The process that Mr McIntyre envisages Bus 2000 and the Department undertaking (the same process which he said is underway in New South Wales) would involve consultation with individual bus operators and would take several weeks.

51. Mr McIntyre said that ORTA could undertake to provide to the Tribunal - by 15 August 2000 - specific information as to which bus routes in Victoria would have low-floor buses removed. Mr McIntyre said this would allow a minimum of four weeks for bus operators to notify the changes to passengers - through newspaper advertisements, posters placed on buses and/or at bus stops, and so on. Mr McIntyre said ORTA would bear the cost of such advertising.

52. When asked by the Tribunal what contingency plans ORTA had - in the event that the application for an exemption is unsuccessful - Mr McIntyre said there would be two responses.

53. First, the service levels planned for spectator transport at the Olympic Games would be reduced, as fewer buses would be available. In short, spectators at the Olympic Games would have to wait longer for bus transport to Olympic venues as there would be fewer buses.

54. Secondly, at the Paralympics, arrangements could be implemented to transport athletes to a number of Paralympic venues using modified (normal) buses and specially-constructed platform ramps (for entry to and exit from the buses).

55. Mr McIntyre said ORTA wished to have sufficient buses to implement planned service levels for spectators at the Olympic Games, if at all possible, and wished to avoid having to transport athletes to and from a number of Paralympic venues by the use of modified buses and platform ramps, if possible.

56. Mr Eric Moore, Regional Manager, Southern Region, Department of Infrastructure, gave evidence. Mr Moore said his responsibilities include the administration of bus contracts in the Southern Region (which includes the Mornington Peninsula), and the monitoring of performance standards by bus operators. Mr Moore said that he is one of four Regional Managers for the Department.

57. Mr Moore gave evidence that he and the three other Regional Managers had agreed on a process they would use to identify which low-floor buses could be removed from bus routes in their respective areas, and be used at the Games. Mr Moore said that he and the other managers would consult with the bus operators in their respective regions, and the operators in turn would consult with the drivers of low-floor buses. As a result of these consultations, Mr Moore said that he and the other Regional Managers would be able to decide which low-floor buses could be removed from routes with minimal or no impact. Mr Moore said that in coming to a view on the removal of low-floor buses from particular routes, he and the other Regional Managers would have regard to advice from the bus operators as to the availability of alternate accessible transport - for example, maxi-taxi services or local government community bus services - in particular areas. In some areas, Mr Moore said that low-floor buses could be replaced by ordinary buses without any adverse effects upon passengers using the services.

58. Mr Moore said that the arrangement he and the other three Regional Managers had reached, regarding the process for identifying which low-floor buses could be used at the Games, was not a process that had been reduced to writing, nor had it been approved by the Secretary of the Department, or by the Minister. The arrangement, said Mr Moore, was one that he and the other three Regional Mangers had agreed upon as a practical way of identifying low-floor buses that could be used at the Games.

59. Mr Moore gave evidence that because he had had preliminary discussions with bus operators in the Southern Region about which low-floor buses could possibly be taken out of normal service for use at the Games, he could provide detailed recommendations - if required - within a day or so. Mr Moore said individual bus operators might need to contact the drivers of low-floor buses to discuss the numbers of passengers with mobility disabilities that they carry, and the possibility of alternative transport being available for such people. He said this could be done quickly - within a day or so.

60. Under cross-examination by Mr Blair (of Disability Rights Victoria), Mr Moore said that bus operators would readily know how many people in wheelchairs use particular routes, but he agreed with Mr Blair that it is difficult to identify all passengers with disabilities. Mr Moore said, "It is difficult because not all disabilities are obvious".

61. Mr Moore agreed with Mr Blair that some bus routes cross Departmental regional boundaries, so that consultation would be needed between Regional Managers - as well as with individual bus operators - to ascertain which low-floor buses could be removed from service so as to have minimal or no impact on passengers with disabilities.

62. When Mr Blair suggested to Mr Moore that the process Mr Moore had outlined (for identifying which low-floor buses could be removed from particular routes) would not produce "good data", Mr Moore said he thought the process would produce "reasonable data".

63. Mr Moore stated that if a bus operator is operating a fleet of 100 buses, the operator would have on average an additional 5 buses (and possibly up to 7) being repaired, undergoing maintenance, or waiting to be used (in the event of another bus being involved in an accident). Mr Moore agreed with a proposition put to him that although Victoria has 170 low-floor buses, it would be unlikely that all of those buses would be operational or available for use at any one time.

64. In presenting her submissions, Ms Ronalds proceeded on the basis that a complainant would be able to make out an arguable case of unlawful discrimination under the Act, if the complainant were a person with a mobility disability who found that a low-floor bus which the person had previously used was no longer available - the bus having gone to Sydney to assist with the Games' bus task. As stated earlier, it is because of the risk of a complainant (or complainants) seeking redress under the Act, in the circumstances outlined, that the applicants decided to seek an exemption.

65. Ms Ronalds referred to Moxon v Westbus Pty Ltd [1999] NSW ADT 88 and Harris and Pyne v Transit Australia Pty Ltd (Judgment and Order of the Anti-Discrimination Tribunal Queensland, 5 June 2000). Each of these cases relates to complaints of (indirect) discrimination made by persons who use wheelchairs against bus companies. In view of these cases, the risk - from the applicants' point of view - of facing complaints of discrimination, if up to 45 low-floor buses from Victoria were to go to Sydney to assist with the Games' bus task, appears to be a real one.

66. Ms Ronalds informed us that while it is possible for the applicants to state that their application is for an exemption with regard to a maximum of 45 low-floor buses from Victoria, it is not yet possible for the applicants to be precise about the number of Victorian buses which would go to the Games (if the exemption were to be successful), nor from which bus routes the buses would come. This is because while the outcome of an exemption application at the Commonwealth level is known (the exemption having been granted), the outcomes of applications for exemptions in several States are not yet known. In these circumstances, the exact number of low-floor buses required from the relevant States, including Victoria, could not be stated with certainty.

67. Ms Ronalds informed the Tribunal that the Human Rights and Equal Opportunity Commission (HREOC) had, on 27 June 2000, decided to grant an exemption under section 57 of the Disability Discrimination Act 1992 (Commonwealth) from the provisions of section 24 of the same Act. The exemption applies to ORTA, Bus 2000, the Victorian Department of Infrastructure (and to the NSW Department of Transport, the Queensland Department of Transport and the Australian Capital Territory Department of Urban Services), and to public and private bus operators in Victoria (and to bus operators in NSW, the ACT, Queensland and South Australia). The exemption under the Disability Discrimination Act 1992 (hereinafter referred to as the Commonwealth Act), is to operate until 4 November 2000 and applies in relation to the transfer of low-floor buses from existing services to Games' services.

68. Ms Ronalds informed the Tribunal that ORTA and Bus 2000 are seeking exemptions under the relevant State legislation in New South Wales and Queensland. The NSW and Queensland applications had not been decided at the time of the application before us.

69. Against this background, Ms Ronalds made six submissions on behalf of the applicants.

70. Ms Ronalds submits that the approach adopted in Fernwood is appropriate but that its principles should be applied flexibly in the circumstances of the present application. In Ms Ronalds' first submission, therefore, we should avoid a "rigid" approach to the question of whether an exemption should or should not be granted, and should have close regard to the particular circumstances of the application.

71. Ms Ronalds' second submission is that the granting of an exemption in the present case is consistent with the objectives of the Act as set out in section 3 (included in paragraph 30 above). Ms Ronalds said the objectives need to be considered in a broad context, and that the objectives set out in section 3(a), (b) and (c) go well beyond providing redress for people subjected to unlawful discrimination or sexual harassment (as set out in section 3(d)).

72. In developing this submission, Ms Ronalds submits that if one considers the anti-discrimination legislation of the Commonwealth, Queensland, New South Wales and Victoria, one can see a common statutory approach, a "mirror" approach, directed to the elimination of discrimination (even though certain terminology in the various statutes might vary). In each of these jurisdictions, the elimination of discrimination in the provision of goods and services is an important theme, and each jurisdiction provides for the granting of exemptions in appropriate circumstances. The power to grant exemptions, submits Ms Ronalds, is to allow a capacity to deal with a broad range of circumstances.

73. Although Ms Ronalds said that she is not advancing a submission that the Equal Opportunity Act 1995 (Vic.) operates extra-territorially, she submits that the elimination of discrimination is a "national project", and that one could take account of the outcome of granting the present application for people with a disability "in a broader sense than just in Victoria".

74. Ms Ronalds submits that the objectives set out in section 3(a) of the Act ("to promote recognition and acceptance of everyone's right to equality of opportunity") implies a concept of "the public interest" which allows the Tribunal to consider broad factors when deciding whether or not to grant an exemption application. In this context, Ms Ronalds noted that the Games are not just Sydney events, but events of great significance for the whole of Australia. Ms Ronalds urged us to consider the application in the context of there being a national approach - enshrined in the legislation of the Commonwealth and the States of Queensland, New South Wales and Victoria - to the elimination of various forms of discrimination. Ms Ronalds noted that legislation prohibiting discrimination in various Australian jurisdictions has to be considered in an international context because the Commonwealth Act is based substantially on international treaties. In this regard, Ms Ronalds referred to section 12 of the Commonwealth Act.

75. Ms Ronalds' third submission is that the granting of an exemption in the present case would not set an unfortunate precedent leading to the granting of more exemptions, and thus to an erosion of the protections enshrined in the Act. Ms Ronalds said that the circumstances of the present application (the holding of the Games in an Australian city and the short-term nature of the exemption that is sought) are unique, and unlikely to occur again in Australia for some considerable time, if ever. In these circumstances, Ms Ronalds said that any "floodgates" argument lacks validity.

76. In her fourth submission, Ms Ronalds said that significant numbers of Victorians would be attending the Games in Sydney, both people with disabilities and those without disabilities, and that these Victorians - athletes, spectators, media representatives and officials - would be using buses, including low-floor buses, provided for use at the Games. The point of this submission is that if services provided by low-floor buses in Victoria were to be reduced during the Games' period because the buses go to Sydney, the low-floor buses from Victoria will be used in Sydney by a range of people, including Victorians. On this argument, while the buses - if they remain in Victoria - will be used exclusively by Victorians, if the buses go to Sydney for the Games, they will be used extensively, including by Victorians - both those with, and those without, disabilities.

77. In support of this submission, Ms Ronalds said that approximately 139 of 630 Australian athletes at the Olympic Games (or 22 per cent) would be Victorians. At the Paralympics, some 80 to 90 of 440 Australian athletes (or 18 to 20 per cent) would be Victorians. Regarding spectators, Ms Ronalds said a minimum of 70,000 Victorians would attend Olympic Games events in Sydney. A comparable figure for the Paralympics is not available.

78. In her fifth submission, Ms Ronalds referred to a passage from the then Victorian Attorney-General's Second Reading Speech regarding the Bill which became the Equal Opportunity Act 1995. Ms Ronalds referred to the following passage from the speech of the Honourable Jan Wade, then Attorney-General:

This bill attempts to strike a balance between the rights and freedoms of individuals by providing for limited exceptions where discrimination in the circumstances specified in the bill will not be unlawful ...

These exceptions balance the aims of equal opportunity and the elimination of discrimination and a number of competing considerations, such as the desire to infringe as little as possible on private spheres of activity. In attempting to strike a balance, the government is also concerned to ensure the freedom, so far as it is possible, of Victorian business to regulate the conduct of its own affairs ..." ([1995] VPD p. 1252, 4 May 1995, LA).

79. In referring to this passage, Ms Ronalds submits that due regard has to be given to the fact that numerous Victorian bus operators want to engage in a commercial exchange with Bus 2000 by providing low-floor buses for use at the Games. The bus operators are keen to do business with Bus 2000 (and hence with ORTA) but are concerned about the possibility of complaints of discrimination being made against them (in the absence of an exemption).

80. In support of this submission, Ms Ronalds said that when one considers the present application in the context of the objectives of the Act, one has to have regard to the interests of passengers with mobility disabilities, and also to the interests of Victorian bus operators who wish to conduct business with Bus 2000. Ms Ronalds submits that section 92 of the Constitution ("Trade within the Commonwealth to be free") had relevance in that what is proposed is a transaction between two States.

81. In her final submission, Ms Ronalds referred to the decision of HREOC on 27 June 2000 to grant an exemption under the Commonwealth Act and urged the Tribunal to embrace the approach taken by HREOC.

82. Before concluding this summary of Ms Ronalds' submissions for the applicants, it can be noted that in response to questions from the Tribunal regarding aspects of the Equal Opportunity Commission Victoria's written submission, Ms Ronalds said that the applicants would readily engage in consultation with disability groups in Victoria to minimise the impact on Victorian bus passengers with mobility disabilities - if the exemption were to be granted and a number of low-floor buses were to leave Victoria for the Games.

83. Ms Ronalds informed us that the applicants are not contemplating any payments of compensation to Victorians adversely affected by the removal of low-floor buses during the Games' period (if the exemption were to be granted and a number of low-floor buses leave Victoria for the Games), as the payment of compensation is contrary to New South Wales Government policy in circumstances where there is no breach of the law. In any event, Ms Ronalds said the administration of a scheme of compensation would be difficult, if not impossible.

H. Opposition to the application: submissions by Disability Rights Victoria

84. In his oral submissions, Mr Blair of Disability Rights Victoria emphasised two points made in his organisation's written submissions.

85. First, Mr Blair submits that the Tribunal has no power to grant an exemption in the present circumstances, bearing in mind the objectives of the Act.

86. Secondly, Mr Blair submits that if the Tribunal grants an exemption, the exemption would inevitably set an unfortunate precedent. According to Mr Blair, this would lead to further exemptions being granted in circumstances not yet contemplated, and to an erosion of the rights of those with disabilities.

87. Our decision in this matter, handed down with ex tempore reasons on 30 June 2000, is that the application for an exemption is dismissed. Our reasons for reaching this decision are as follows.

88. We consider that the application for an exemption was properly brought, in the sense that the applicants apprehend a risk of complaints of discrimination being made under the Act if people with mobility disabilities find low-floor bus services that they use reduced in number, or removed, during the Games' period - because low-floor buses normally used on the relevant bus routes have gone to Sydney for the Games.

89. It is not necessary for us to come to a view as to whether or not any such complaints would succeed. We simply observe that - whether brought as complaints of direct discrimination, or as seems more likely, as complaints of indirect discrimination - there is an arguable basis for such complaints. In these circumstances, it is appropriate for the applicants to make an application for an exemption, and it is appropriate for us to consider it.

90. Section 83 of the Act (set out in paragraph 26 above) empowers the Tribunal to grant exemptions. The section does not itself set out criteria to be considered by the Tribunal in deciding whether or not to grant an exemption in particular circumstances. This being so, it is necessary to consider the objectives of the Act and the scheme of the Act in determining whether or not, in the present case, the application should be granted.

91. The objectives in section 3 of the Act are stated in broad terms, but it is to be presumed that legislation does not have an extra-territorial effect. As O'Connor J stated in Jumbunna Coal Mine NL v Victorian Coal Miners' Association, [1908] 6 CLR 309 at 363:

"In the interpretation of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits."

92. In our view, it is clear that the objectives set out in section 3 of the Act are objectives of the Victorian Parliament in relation to the people of Victoria, and that the same can be said regarding the objectives of the Act as a whole, as ascertained from the scheme of the Act and from a reading of the Act.

93. We therefore do not accept the submission made on behalf of the applicants that the Tribunal should view the application in the context of "mirror legislation" at the Commonwealth level, and in the States of New South Wales, Queensland, and Victoria. Ms Rolands submits that broadly similar statutory approaches to the elimination of discrimination in these jurisdictions enable the Tribunal to view the elimination of discrimination as a "national project", a project which allows the Tribunal to consider the outcome of granting an exemption for people with a disability "in a broader sense than just in Victoria". We are bound by the Victorian Statute, and although we accept that interstate and Commonwealth decisions in relation to similar statutes may be persuasive, we do not accept that the objectives of the Act include consideration of persons outside Victoria.

94. When one considers the objectives of the Act as set out in section 3, and most relevantly for present purposes, in section 3(a) and (b), it is difficult, if not impossible, to see how these objectives would be advanced if an exemption were granted.

95. Pursuant to section 3(a), an objective of the Act is, "to promote recognition and acceptance of everyone's right to equality of opportunity". If the exemption were to be granted and up to 45 low-floor buses were to go to Sydney for the Games, recognition and acceptance of the right to equality of opportunity for Victorians with mobility disabilities who use low-floor buses would not be promoted. On the contrary, their right to equality of opportunity would be passed over in favour of enabling Victorian bus operators to provide low-floor buses to assist with transport needs at the Games.

96. Pursuant to section 3(b), an objective of the Act is, "to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes". Again, it is our view that this objective would not be advanced if an exemption were to be granted and up to 45 low-floor buses were to go to Sydney for the Games.

97. As well as considering section 83 in the light of the objectives of the Act, one needs to consider the section in the light of the scheme of the Act. While the basic scheme of the Act is to make certain conduct unlawful, the Act sets out various exceptions. Just as the then Equal Opportunity Board of Victoria considered the nature of the exceptions under the Equal Opportunity Act 1984 in Fernwood, it is useful to consider the nature of the exceptions under the current Act. The exceptions under the current Act may be categorised as follows:

* exceptions to the principle that discrimination in employment is unlawful (the principle being set out in sections 13 to 15, the exceptions in sections 16 to 28);

* exceptions to the principle that a person establishing a firm with five or more partners must not discriminate against another person in the terms on which the other is invited to become a partner (the principle being set out in sections 30 to 31, the exceptions being set out in sections 32 to 33);

* an exception to the principle that a qualifying body must not discriminate against a person (the principle being set out in section 35, the exception in section 36);

* exceptions to the principle that educational authorities must not discriminate (the principle being set out in section 37, the exceptions in sections 38 to 41);

* exceptions to the principle that a person must not discriminate against another in the provision of goods and services (the principle being set out in section 42, the exceptions in sections 43 to 46);

* an exception to the principle that a person must discriminate against another in the disposal of land (the principle being set out in section 47, the exception in section 48);

* exceptions to the principle that there be no discrimination in the provision of accommodation (the principle being set out in sections 49 to 52, the exceptions in sections 53 to 57);

* exceptions to the principle that clubs must not discriminate against those seeking membership (the principle being set out in sections 59 to 60, the exceptions in sections 61 to 63);

* an exception to the principle that there should be no discrimination in sport (the principle being set out in section 65, the exception in section 66); and

* an exception to the principle that there should be no discrimination in local government by Councillors (the principle being set out in section 67, the exception in section 68).

98. As well as the exceptions to various principles outlined here, the Act provides several general exceptions to its prohibitions on discrimination, for example, an exception for discrimination necessary to comply with another Act (section 69); an exception for discriminatory conduct if such behaviour is necessary to comply with a court or tribunal order (section 70); and an exception for discriminatory conduct taken with regard to a person on the basis of the person's impairment or physical features if the discriminatory behaviour is reasonably necessary to protect the health or safety of any person (section 80(1)(a)).

99. In considering the exceptions set out in the Act, one can see the Parliament committing itself to various prohibitions on discrimination, but then providing for exceptions to recognise competing considerations.

100. It is important to consider the exceptions to section 42, the general prohibition on discrimination in the provision of goods and services, because the present application is for an exemption from section 42. In the case of the provision of goods and services, the principle prohibiting discrimination is set out in section 42 of the Act, and four subsequent provisions provide exceptions. Section 43 allows an insurer to discriminate in certain circumstances, including on the basis of actuarial data. Section 44 allows a credit provider to discriminate on the basis of age if such discrimination is supported by actuarial or other data. Section 45 provides that if a supplier is providing goods and services to a child, the supplier may require the child to be accompanied by an adult if there is a risk of the child causing a disruption or some danger. Section 46 provides that in certain circumstances, a supplier may refuse to supply a service, or set terms for the provision of a service, if the service would be required to be provided in a special manner because of the recipient's impairment or physical features. Having briefly reviewed the exceptions section 42 as set out in the Act, one can ask: does the exemption sought in the present application resemble the existing exceptions in the Act? In our view, the answer is no.

101. It can be noted that the Act does not provide an exception for discriminatory conduct undertaken, for example, "in the national interest" (or similar terminology). If there were such an exception and an application for an exemption were made in the present circumstances (perhaps through an abundance of caution), then the Tribunal might grant the exemption - there then being, hypothetically speaking, an exception which would colour the circumstances in which exemptions could be granted. But this is not the present case as the Act contains no exception for discriminatory conduct undertaken in "the national interest" (or similar terminology).

102. In our view, it is not appropriate to grant the present application because to do so, would not sit well with the objectives set out in section 3 of the Act, nor with the objectives of the Parliament as ascertained by a consideration of the scheme of the Act. Before concluding these reasons, it remains to make three observations.

103. First, conflicting evidence was given by Mr McIntyre of ORTA and Mr Moore of the Department as to how long it would take to compile information about which Victorian bus routes would be affected if the exemption were to be granted. Mr McIntyre said several weeks; Mr Moore said a day or so. We were troubled by this inconsistency.

104. Secondly, in circumstances where an application for exemption - if granted - would reduce the present rights of those with mobility disabilities (and it was conceded by the applicants that this would be the outcome of a successful application in the present case), it is necessary for the applicants to provide the Tribunal with clear evidence of the probable extent of the reduction, and of the measures to be implemented to mitigate the loss of service.

105. In considering the present application, the Tribunal was not furnished with evidence as to which bus routes would be affected if the application were to be granted, nor with evidence as to the availability of alternate transport for people with mobility disabilities in the affected areas.

106. We acknowledge that, in bringing this application, the applicants are labouring under a cloud of some uncertainty in that - because exemption applications have not yet been determined in New South Wales and Queensland - the applicants can not be certain how many low-floor buses they would ultimately seek from Victoria (only that the number would be no more than 45). In these circumstances, the Tribunal would have been assisted by evidence regarding, say, three scenarios: evidence as to the bus routes affected, and the nature of the impact on those with mobility disabilities, if say, 25, 35 and 45 buses were removed from service in Victoria during the Games' period. Evidence as to the availability of alternate transport for those with mobility disabilities in the context of each scenario would also have been helpful.

107. Even if such evidence had been presented in support of the present application, the outcome may well have been no different. However, had such evidence been presented, the Tribunal would then have been considering the application in the context of being able to understand the real impact of the granting of an exemption on, for example, those with mobility disabilities who travel by low-floor buses to attend particular places of employment and particular educational institutions. In the context of the present application, we are unable to gauge this impact.

108. The third observation is that Mr Moore said in evidence that the Department - in assessing (with the assistance of bus operators) which low-floor buses would be removed from particular routes if the application were successful - would have particular regard to passengers who use wheelchairs. We observe that many people, apart from those who use wheelchairs, have mobility disabilities and require low-floor buses to get on with their everyday lives. At the conclusion of Mr Moore's evidence, we were uncertain as to how the Department would identify the bus services used by those with mobility disabilities who did not require the use of wheelchairs, and the numbers of such people.

109. Having considered the application and the material put before us, as well as the objectives and scheme of the Act, we consider that an exemption should not be granted.

110. We acknowledge that the Games are events of great significance and that the preparatory tasks facing organisations such as ORTA and Bus 2000 are demanding and highly complex. However, the Victorian Parliament enacted the Equal Opportunity Act 1995 with specific objectives in mind. Those objectives, set out in section 3 of the Act, would not be served if up to 45 low-floor buses were to be taken off Victorian bus routes during the Games. As mentioned, little detail, if any, was provided as to which particular bus routes might be affected.

111. If low-floor buses were taken to Sydney for the Games, some people in Victoria with a mobility disability who use those buses would suffer a detriment. Whilst we were assured that if up to 45 low-floor buses went to Sydney for the Games, every effort would be made by ORTA, Bus 2000 and the Department - and by individual Victorian bus operators - to minimise the impact, at the end of the day we cannot escape the conclusion that at least some people with a mobility disability, and potentially a significant number of people with mobility disabilities, would be worse off.

112. Our conclusion that such people would suffer a detriment during a period of up to nine weeks does not sit well with the objectives of the Act, particularly with the objectives set out in section 3(a) and (b), nor in our view, does it sit well with the intention of Parliament as ascertained from the scheme of the Act. We therefore consider that the application should be dismissed.

Opportunity Act 1995

Roads and Transport Authority Act 1998

Discrimination Act 1992

Opportunity Act 1984

Olympic Roads and Transport Authority [2000] VCAT 1635 (31 August 2000)

At a glance

Court

Decision date

Before

Source

Judgment (164 paragraphs)

Olympic Roads and Transport Authority [2000] VCAT 1635 (31 August 2000)

Legislation Cited (4)