RESPONDENT Ms J Oakley of counsel, instructed by Minter Ellison

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

1. In June 1998 and in October 1998, Ms Perrett-Abrahams, the complainant in these applications, lodged complaints with the Equal Opportunity Commission (the Commission), alleging contravention of the Equal Opportunity Act 1995 (the EOA) by Qantas Airways Limited, the Respondent.

2. The Commission referred both complaints for conciliation. On 31 May 1999, Ms Perrett-Abrahams was notified pursuant to s.117(1) of the EOA, that it was not considered reasonably possible that the complaints could be successfully conciliated.

3. Following a request by Ms Perrett-Abrahams, both complaints were referred to the Tribunal.

4. The Commission's report on both complaints was that -

"The complainant alleges indirect disability discrimination in the area of the provision of goods and services. The complaint appears to rely on sections 9, 42 and 102 of the Equal Opportunity Act 1995".

5. The first referral, application 249/99, related to a complaint lodged with the Commission on 5 June 1998. The outline of Ms Perrett-Abrahams' complaint was as follows :

"Complaint of indirect disability discrimination in the area of Goods & Services under the Equal Opportunity Act 1995.

I believe I have been indirectly discriminated against by QANTAS on the basis of my disability in relation to their policy of not allocating seating until shortly before a flight.

* I am unable to comply with QANTAS's seating allocation procedure as my disability requires me to be given a bulkhead seat.

* those without this disability are able to comply with this procedure as the type of seating allocated doesn't determine whether they will be able to travel.

* this procedure is unreasonable because I believe that QANTAS can meet my needs by ensuring that I have a bulkhead seat booking that is confirmed prior to presenting at the airport".

6. Attached to this outline were two letters. The first letter, dated 1 November 1997, is addressed to "Customer Relations Management Victoria, Qantas Airlines". The letter makes complaints about some trips with Qantas, including a trip Ms Perrett-Abrahams made in July 1997. The second letter is addressed to the Equal Opportunity Commission and is dated 17 May 1998. It refers to the July 1997 travel and a further trip in March 1998. The complaints arose out of two separate holiday travel arrangements. The first involved booking and flights for Ms Perrett-Abrahams and her family in July 1997 from Melbourne to Sydney and after overland travel, a return flight to Melbourne from Perth. The second, a booking and a flight with her family from Melbourne to Sydney on 20 March 1998 returning to Melbourne on 22 March 1998.

7. The second referral (application 247/99) relates to a complaint lodged with the Commission on 13 October 1998. The complaint is expressed in the same terms as the first complaint. However, it arose out of a later travel package booked and taken by Ms Perrett-Abrahams and her family to Surfers Paradise departing from Melbourne on 22 September 1998 and returning on 27 September 1998. This booking and travel took place after the first complaint had been lodged with the Commission.

8. Orders were made by the Tribunal that the two applications be heard and determined together and that Particulars of Complaint be filed and served.

9. Particulars of complaint were filed with the Tribunal on 28 October 1999. They alleged not only indirect discrimination but also direct discrimination, in breach of the provisions of the EOA. Although referring to the applications 247/99 and 249/99 to this Tribunal, the particulars only referred to the third booking, the Surfers Paradise trip taken in September 1998.

10. Following directions made by the Tribunal, amended Particulars of Complaint dated 16 February 2000, were filed. These referred to all three bookings. At the commencement of the hearing, further leave was given to the applicant to amend her particulars, to spell out the ways in which Ms Perrett-Abrahams alleged she was subjected to detriment and to plead indirect discrimination with respect to all three trips.

11. Leave to appear at the hearing was granted to Ms Young of counsel for Ms Perrett-Abrahams and Ms Oakley of counsel for Qantas. The hearing took place over 5 days from 15 to 19 May 2000.

12. Ms Perrett-Abrahams' evidence about matters surrounding her booking and travel was set out in the three letters referred to earlier which were tendered in evidence with some deletions. She gave oral evidence and was cross-examined. Her son Asher Perrett-Abrahams, an Arts student, had prepared a witness statement. It was tendered in evidence with extensive deletions. He was cross-examined. Ms Perrett-Abrahams' booking agents, Ms Culpin and Ms Mulder from Great Holiday Escapes, both prepared witness statements, which were tendered in evidence. They gave evidence during the hearing and were cross-examined. A report and further letter from Mr Max Wearne, Ms Perrett-Abrahams' treating surgeon, were tendered in evidence. Ms Perrett-Abrahams called evidence from Ms Val Johnson of Ansett. She gave evidence and was cross-examined. Details of Ansett's Ansacare program were tendered.

13. The evidence for Qantas was contained in a number of witness statements and other material tendered, referred to below. Ms Bernadette Cook, Customer Delivery Co-ordinator for Qantas Telephone Sales Australia had prepared an extensive statement which analysed the data available about the travel gleaned from Qantas' and the travel agent's records. Her statement was tendered in evidence. She was not called to give evidence and Ms Young did not seek to cross-examine her. On the basis that all parties made the assumption that the information contained in her statement was correct, I accepted her evidence.

14. Qantas tendered witness statements by Ms Athena Constantinou, Customer Relations Officer; Mr Gerry Daras, Duty Airport Manager at the Sydney Domestic Terminal; Mr Ross Schukraft, a Customer Service Supervisor at the Sydney Domestic Terminal and Mr Charles Terry, a Customer Service Co-ordinator at Melbourne Airport. They all gave evidence and were cross-examined. Qantas also tendered in evidence statements from Paul Petrykowycz, Schedule Development Manager-Shorthaul; Richard Williams, General Manager of Network Development; Robert Smart, Senior Manager with Qantas and Emma Black of Minter Ellison, Lawyers. Also tendered were copies of Civil Aviation Orders; extracts from Qantas' Airport Product and Service Manual; extracts from the Cabin Crew Inflight Handbook; extracts from the Sales Procedure Manual; a Press Release; extracts from U.S. regulations and various plans showing seating layout and allocation for particular flights on Boeing 737 and 767 aircraft.

15. During the hearing, the Tribunal raised some jurisdictional issues which had not been raised at any earlier stage by either party. These concerned :

(a) the power of the Tribunal to determine complaints of unlawful discrimination and exercise powers under the EOA concerning conduct at Tullamarine Airport;

(b) the power of the Tribunal to determine complaints of unlawful discrimination and exercise powers under the EOA concerning conduct in states other than Victoria; and

(c) whether there is Federal legislation that is intended to cover the field.

16. At the conclusion of the hearing, the parties filed written submissions on these issues.

17. Qantas made the following submissions on whether Federal legislation covered the field :

12. There is a Federal Law that has been enacted to address disability discrimination. However, the Victorian Equal Opportunity Act cannot be regarded as inconsistent with the Disability Discrimination Act (Cwlth) as that Act does not exclusively legislate with regard to the subject matter of that legislation (Hulme v Palmer [1926] HCA 50; (1926) 38 CLR 441; Ex Parte McLean [1930] HCA 12; (1930) 43 CLR 472).

13. Section 13(3) of the Disability Discrimination Act (Cwlth) provides -

`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'.

14. Consequently there is no impediment to the operation of the Victorian Act by reason of the existence of a Commonwealth law relating to the same subject matter".

18. It was submitted for Ms Perrett-Abrahams that Qantas' submissions on this issue were correct. I therefore proceeded on the basis that the Federal legislation is not intended to cover the field.

19. The parties made submissions in relation to the other jurisdictional issues but given the findings I have made it is not necessary for me to express a view on those interesting and difficult questions.

20. Ms Perrett-Abrahams claims direct and indirect discrimination in the provision of goods and services on the ground of her impairment. The EOA prohibits discrimination in defined areas of activity on the basis of what are called "attributes".

21. "Discrimination" is defined in s.7 of the Act and the relevant subsection for these purposes states :

"(1) Discrimination means direct or indirect discrimination on the basis of an attribute".

22. The relevant area of activity relied upon in this case is "the provision of goods and services" and it is common ground that Qantas provides goods and services. Section 42 states :

"(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person;

(b) in the terms on which goods or services are provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Sub-section (1) applies whether or not the goods or services are provided for payment"

23. Ms Perrett-Abrahams claims she has been subjected to "detriment" which is defined in s.3 to include humiliation and denigration.

24. Section 6 lists the attributes on the basis of which discrimination is prohibited. The attribute relied on by Ms Perrett-Abrahams is s.6(b) "impairment". There is no issue that Ms Perrett-Abrahams has an impairment, being an athrodised left leg which means she cannot bend her knee.

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason".

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including -

(a) the consequence of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination".

27. Section 102 establishes vicarious liability of employers and principals. It states :

"If a person in the course of employment or while acting as an agent -

(a) contravenes a provision of Part 3, 5 or 6; or

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6 -

both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them""

28. In this case the complaints have been lodged solely against Qantas.

29. If I find that the complaint or any part of it is proven, s.136 sets out what I may decide. It states :

"After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may -

(a) find the complaint or any part of it proven and make any one or more of the following orders :

(i) an order that the respondent refrain from committing any further contravention of this Act in relation to the complainant;

(ii) an order that the respondent pay to the complainant within a specified period an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the contravention;

(iii) an order that the respondent do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the contravention; or

(b) find the complaint or any part of it proven but decline to take any further action in the matter; or

(c) find the complaint or any part of it not proven and make an order that the complaint or part be dismissed".

30. Ms Perrett-Abrahams' complaints of direct and indirect discrimination arise out of three different bookings made with Qantas for Ms Perrett-Abrahams and members of her family.

31. In her final amended particulars of complaint, Ms Perrett-Abrahams gives details of three bookings she made through her travel agent, details of the requests for bulkhead seating made at the time of booking, details of any further attempts she made to confirm her special seating requests, her experiences at check-in and details of the flights where relevant.

32. In her particulars of complaint in all three bookings, Ms Perrett-Abrahams refers to her request for a bulkhead seat booking. She alleges that the detriment she has suffered when that request has not been met, is the delay it has caused her compared with others; the requirement for her, as she expresses it, to negotiate and advocate extensively for her travel needs and subjecting her to a high level of uncertainty about whether her travel would occur as booked.

33. With respect to each of the three bookings and subsequent travel she claims :

(A) She has been treated less favourably than a person without the impairment would have been treated contrary to s.8 of the EOA.

(B) Further and in the alternative by reason of the matters set out below, that Qantas has discriminated against her contrary to s.9 of the EOA in that Qantas :

(i) imposed a condition on passage by its air transport in its aircraft that in order to be guaranteed travel in economy class, a passenger must be able to be safely seated in an economy size seat space ("the requirement");

(ii) by reason of the impairment she is, and was at the relevant times, not able to comply with the requirement, for in order for any traveller to be able to sit in any economy class seat allocated to him or her, it is necessary that the traveller be able to bend his or her knees;

(iii) a higher proportion without an impairment, alternatively without her impairment, can comply with the requirement;

34. In consequence of the unlawful discrimination referred to above, Ms Perrett-Abrahams alleges she suffered injury, loss and damage. She claims :

C. An order that the respondent make available bulkhead seating for persons with the impairment.

D. In the alternative, an order that the respondent make some other accommodation in its seating arrangements for persons with the impairment.

E. An order that the respondent refrain from committing any further contravention of the Equal Opportunity Act in relation to the complainant.

F. Such further or other orders as the Tribunal considers appropriate.

35. Turning first to Ms Perrett-Abrahams' complaints of direct discrimination.

36. Under s.8 of the Act, discrimination occurs if a person treats another person with an attribute less favourably than he or she treats or would treat persons without that attribute in the same circumstances or in circumstances that are not materially different. It is irrelevant whether the impairment is the only or dominant reason, as long as it is a substantial reason.

37. To succeed Ms Perrett-Abrahams must prove, on the balance of probabilities :

(i) that she has an attribute in the terms of the definition in s.6;

(ii) that she has been the subject of less favourable treatment in the terms of s.8;

(iii) that the attribute was a substantial reason for the treatment.

38**.** It is common ground that Ms Perrett-Abrahams has an attribute, being an impairment, in that she has loss of bending capacity in her left knee. She maintains that she cannot travel safely and comfortably in an economy size seat space.

39. What is in contention in this case are the other matters that Ms Perrett-Abrahams needs to satisfy the Tribunal about to succeed in her claim of direct discrimination.

40. The 1997 travel was in two parts; a flight from Melbourne to Sydney and returning from Perth to Melbourne. According to Ms Perrett-Abrahams, she made a request for bulkhead seating through her agent and that request did not appear in the Qantas system when she checked in at Melbourne Airport. Ms Cook's evidence, which I accepted, was that Qantas has been unable to analyse the 1997 travel records. The relevant records are only kept for 25 months and Ms Perrett-Abrahams' complaint of direct discrimination about that travel arose at a late stage when that information was no longer available. Qantas however did make what inquiries they could of ground staff and that information is annexed to a witness statement of Ms Emma Black, solicitor, tendered in evidence. Those inquiries did not take matters much further. In any event, Ms Perrett-Abrahams flew in a bulkhead seat to Sydney. On the flight from Perth to Melbourne, even after making telephone inquiries about the booking and special requests ahead of time, Ms Perrett-Abrahams was apparently still delayed at check-in, although she and her family were upgraded and flew business class.

41. On the second trip in March 1998, Ms Perrett-Abrahams again made a request for bulkhead seating. She herself called customer relations attempting to secure the pre-allocation of such a seat, but was unable to do so. She spoke to Ms Constantinou, who confirmed that bulkhead seating could not be pre-booked. Ms Constantinou's evidence, which I accepted, was that that was discussed with Ms Perrett-Abrahams. The Qantas travel plan identifier records, referred to by Ms Cook, indicate that Ms Perrett-Abrahams' request for a bulkhead seat was noted and that the reference Code PN1*D means a "pending need" for a bulkhead seat and that that request will be actioned at check-in by the check-in agent. According to Ms Cook, this "pending need" request does not guarantee the passenger a bulk head seat, it is merely a request. As I understand it, there were no problems on check-in and Ms Perrett-Abrahams and her family all sat in bulkhead seats on that flight from Melbourne to Sydney.

42. Ms Perrett-Abrahams was late in arriving at Sydney Airport for the return flight and could not travel on the flight booked. She and her family were transferred to the next flight and Ms Perrett-Abrahams believes she was assured she had been given bulkhead seating. It turns out that this was not the case. The Qantas records indicate Ms Perrett-Abrahams was allocated seat C in Row 4, an aisle seat in the business class/economy class section of a Boeing 737-376. That aircraft that does not have any dedicated economy class bulkhead seating. The records show Mr Asher Perrett-Abrahams was allocated seat 5C and Miss Perrett-Abrahams seat 6B in the same business class/economy class section. In cross-examination Mr Perrett-Abrahams agreed he and his sister sat in their allocated seats, although in his statement he had said that he and his sister were seated near the rear of the plane. Ms Perrett-Abrahams had said in her statement she had been allocated a seat near the rear of the plane where her children had to be seated. The Qantas travel plan identifier records show that the special service requests only appear for segment 1 of the flight, ie the flight from Melbourne to Sydney. Ms Cook gave two possible explanations for this. First, that the agent failed to make the requests on segment 2 or the change of plan in Sydney may have meant the booking details on segment 1 of the flight failed to transfer to the new flight. She stated that where a change of aircraft occurs, particularly on short notice, the staff at the airport may not have had the opportunity to input the special service requirements into the system. She said it was often the case that the staff at the check-in desk will deal with special service requests as the customers check in and that it was not possible to see which of the two possible explanations applied in this case.

43. In cross-examination, Ms Perrett-Abrahams disagreed that those were the seats allocated, but could not indicate where the allocated seats were.

44. At the door of the plane, Ms Perrett-Abrahams suggested she be upgraded. There was obviously an altercation such that the Captain came from the cockpit to inquire. He arranged for a business class passenger to sit in the cockpit for the flight and Ms Perrett-Abrahams sat in Row 1.

45. On the third trip to Surfers Paradise in September 1998, Ms Perrett-Abrahams again requested bulkhead seating. To confirm this, her agent Ms Mulder had Qantas fax confirmation. On arrival at the check-in, she found she was allocated wheelchair seating and there was no record of any bulkhead seating request. According to Ms Cook, the original booking with the details confirming Ms Perrett-Abrahams' request, was cancelled and replaced by a new Qantas holidays booking and the information not transferred. Wheelchair seating, which involves the removal of arm rests, is not sufficient to accommodate Ms Perrett-Abrahams' need for legroom. There was delay at the check-in counter. Mr Charles Terry was called to the check-in counter and he organised bulkhead seating on the segment to Sydney.

46. The flight involved a change of aircraft. The aircraft on the sector to Sydney was a Boeing 767 which has economy class bulkhead seating. On the Sydney to Coolangatta sector, the aircraft was a Boeing 737 which does not have economy class bulkhead seating.

47. There were more problems, arguments and distress in Sydney. There are different versions of what took place. Suffice to say that Ms Perrett-Abrahams eventually took the flight and sat in seat 7D, an aisle seat in the business class/economy class section of the plane for the Sydney to Coolangatta sector. On the return flight to Melbourne with her son, she had bulkhead seating, and has made no complaints about that flight.

48. Ms Young submitted that with these bookings, Ms Perrett-Abrahams was directly discriminated against in that she was afforded less favourable terms in which Qantas travel was provided to her and that she suffered detriment being the lack of certainty about whether she would travel, the worry and effort involved in negotiating for her seating and that this was not the ordinary experience of travellers. As I understood her submissions, other people at check-in do not have to negotiate for special seating and be subject to delay or worry about whether they can travel. Relying on the evidence of Mr Schukraft, which emerged in cross-examination, the usual check-in time for someone without Ms Perrett-Abrahams' impairment and need for special seating was only a couple of minutes. In that way, so the argument goes, she has been treated less favourably because of her impairment even if at some point, she is allocated a seat she can comfortably sit in.

49. To succeed in her claim of discrimination under s.8, Ms Perrett-Abrahams must satisfy me that not only has she been treated less favourably than Qantas treats or would treat a person or others without her impairment or with a different impairment but that it is in circumstances that are the same or not materially different.

50. In order to find out whether Ms Perrett-Abrahams has been treated less favourably than a person without an athrodised left knee or with a different attribute, in the same or similar circumstances, it is necessary to compare how she was treated, with how someone without her attribute or with a different attribute was treated.

51. The comparator is a hypothetical one. It is not necessary to find an actual person who meets the descriptions.

52. Who is the appropriate person to compare Ms Perrett-Abrahams with?

53. Ms Young, in her written outline of submissions, which she addressed during oral submissions, at paragraph 5 says :

"The appropriate comparator is a passenger who books and pays for travel with Qantas within Australia in the economy class. They are in the same or similar circumstances".

54. Ms Young further submitted that it was a passenger who had made every endeavour to inform Qantas of their needs.

55. Ms Oakley did not make any submissions on whom the appropriate comparator should be. Her submissions focussed on whether or not there was less favourable treatment. She referred to the evidence of Mr Petrykowycz that no one is pre-allocated any seat and that Ms Perrett-Abrahams has not had any less favourable treatment.

56. Ms Young submits that the comparator is a passenger who books and pays for travel in economy class. Expressed that way, it does not sit well with how the particulars of complaint are expressed.

57. The particulars concerning the July 1997 booking, the March 1998 booking and the September 1998 booking at paragraphs 5, 18 and 31 respectively, state as follows :

At the time of making the first/second/third booking the Complainant requested, inter alia, that she be seated in an economy class bulkhead seat which would permit adequate leg room to accommodate the impairment (`the first/second/third bulkhead request').

58. The comparison requires that it be with someone in the same or similar circumstances.

59. It seems to me that the appropriate comparison with Ms Perrett-Abrahams must be with someone without her impairment or with a different attribute who books and pays for an economy class size seat and makes a request that they be seated in a bulkhead seat or even a particular seat, whether they request that seat at the time of booking or at check in.

60. Has she been treated less favourably than anyone else seeking a bulkhead seat or a particular seat? There is simply no evidence to suggest that she has been.

61. Whilst there may well have been problems with her special requests not appearing in the system for various reasons, on the evidence I am satisfied that the reason she has been delayed at the check-in where her bulkhead seat request had not been noted and bulkhead seating was not available, is because her request for a particular seat could not readily be accommodated. Moreover, the evidence before me suggests that it is not possible for anyone to be pre-allocated a particular seat or a bulkhead seat and in those circumstances it is difficult to see that she has been treated less favourably.

62. Ms Constantinou gave evidence that Qantas does not pre-allocate seats and that she had discussed this with Ms Perrett-Abrahams. Qantas also tendered a statement of Mr Paul Petrykowycz about the scheduling of flights which supports the evidence Ms Constantinou gave that Qantas did not pre-allocate seats. Ms Val Johnson, the Manager of Ansett's disability program, was called to give evidence by Ms Perrett-Abrahams. In cross-examination, she agreed that if someone asked for bulkhead seating, it could not be guaranteed. Ms Mulder in her evidence in chief said she understood it was impossible to make a firm booking for a bulkhead seat. I accept that evidence which suggests that Ms Perrett-Abrahams has not been treated less favourably than anyone else.

63. I am not satisfied that the claims of direct discrimination are made out.

64. The difference between direct and indirect discrimination, was explained by Dawson and Toohey JJ in Waters and Ors v Public Transport Corporation (1991) 173 CLR 347 at 392 :

"The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable".

"A distinction is often drawn between two forms of discrimination, namely `direct' or `disparate treatment' discrimination and `indirect' or `adverse impact' discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such `equal' treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers (44). Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

In Australian Iron & Steel Pty Ltd v Banovic (45), Dawson J expressed the view that ss.24(1) and 24(3) of the Anti-Discrimination Act 1977 (N.S.W.), which are to some extent comparable with ss.17(1) and 17(5) of the Act in this case, dealt with direct discrimination and indirect discrimination respectively in a mutually exclusive way. This was because if s.24(1) (the equivalent of s.17(1)) embraced indirect as well as direct discrimination, then s.24(3) the equivalent of s.17(5) would be superfluous. Thus Brennan J in Australian Iron & Steel Pty Ltd v Banovic (46) held that treatment which was facially neutral would not fall within s.24(1) (the equivalent of s.17(1)). Subject to the effect (if any) of the opening words of s.17(5), which are referred to below, this reasoning leads equally to the conclusion that discrimination within s.17(5) cannot be discrimination within s.17(1). Conversely, it is clear that discrimination within s.17(1) cannot be discrimination within s.17(5) because otherwise the anomalous situation would result whereby a requirement or condition which would not constitute discrimination under s.17(5) unless it was unreasonable could constitute discrimination under s.17(1) even if it was reasonable. In this case s.17(5) is prefaced by s.17(1) even if it was reasonable. In this case s.17(5) is prefaced by the words `For the purposes of sub-section (1)'. The precise effect of those words is far from clear, but there are strong reasons for nevertheless concluding that s.17(1) and s.17(5) deal separately with direct and indirect discrimination and do so in a manner which is mutually exclusive. However, no point based upon those words was taken and the discrimination alleged by the appellants was discrimination within s.17(5)".

65. To make out a claim of indirect discrimination within the meaning of s.9, Ms Perrett-Abrahams must satisfy me on balance, that it is more probable than not that Qantas has a requirement, condition or practice imposed (or proposed to be imposed) that

(b) that a higher proportion of people without her impairment, or with a different attribute, do or can comply with; and

66. What is the requirement, condition or practice imposed, that Ms Perrett-Abrahams relies on?

67. Her particulars of complaint describe it as follows :

"The Respondent imposed a condition on passage by its air transport in its aircraft that in order to be guaranteed travel in economy class, a passenger must be able to be safely seated in an economy size seat space (`the requirement')".

68. The written outline of submissions of both parties indicate that they have a common understanding that that is how the requirement is put.

69. As it turns out, Ms Perrett-Abrahams on any of the flights that she has taken with Qantas, has not been allocated, so far as the available records show, or been required to sit in a standard non-bulkhead economy class seat notwithstanding that she has paid for a discounted economy class seat. She has in fact been seated in an economy bulkhead seat, a business class seat or in a business class/economy class conversion seat.

70. The available Qantas records confirm this. Even on the return flight from Sydney to Melbourne in March 1998, the Qantas records indicate Ms Perrett-Abrahams had been allocated seat C in Row 4, an aisle seat in the business class/economy class section of a Boeing 737-376. It will be recalled that that was the flight where at the door of the plane Ms Perrett-Abrahams suggested she be upgraded, and the captain came from the cockpit to inquire about the delay and made arrangements for a business class passenger to exchange their seat in the front row for a seat in the cockpit for the flight to allow Ms Perrett-Abrahams to sit in the front row.

71. Qantas submitted that the allegation of indirect discrimination is not even arguable. Nevertheless, Qantas submitted that restrictions on space allocated to passengers on aircraft are clearly necessary and reasonable.

72. If the "requirement" is that one must be able to sit in an economy seat size space, can Ms Perrett-Abrahams comply with the requirement?

73. It is accepted that there must be an inability to comply in practice rather than an inability to comply physically with the requirement (see, for example, The Australian Public Service Association v The Australian Trade Commission (1988) EOC 992-228.)

74. Thus, while Ms Perrett-Abrahams was able to make the journey from Sydney to Coolangatta in the business class/economy class seat, I accept that, as she says, she did so with discomfort, having to perch forward in the seat to accommodate her stiff leg. According to Ms Perrett-Abrahams, as the trolleys went by, she had to pull herself up by her arms, to bring her leg out of the passage. This caused her extreme pain. She consulted a Dr Dent in Surfers Paradise who advised she had strained muscles in her back. She was in pain for a week.

75. Based on her experience, Ms Perrett-Abrahams says she could not be comfortably seated in that seat. That seat (seat 7D) in a Boeing 737-376 aircraft, is a business class/economy class conversion seat with what is called a "pitch" of 35 inches. Pitch is a measurement taken from a fixed point on one seat to the same fixed point of another seat of the same class immediately in front of the first. The economy class pitch on that aircraft is 32 inches, with the exception of the safety exit row which has a 40 inch pitch. Ms Perrett-Abrahams cannot be seated in that row because air traffic regulations require that passengers in that row must be able bodied.

76. Whilst it is difficult to establish exactly what Ms Perrett-Abrahams' requirements are, it may well be that Ms Perrett-Abrahams is unable to be seated comfortably in any seat size space unless it is a bulkhead seat. However, I am satisfied that she cannot in practice comply with the requirement that she sit in an ordinary economy seat size space.

77. Can a higher proportion of persons who are economy class passengers without her impairment or with a different attribute comply with the requirement that they be able to sit in an economy seat size space?

78. The extent of Ms Young's submissions on this consideration related to the evidence of Mr Ross Schukraft which emerged in cross-examination. His evidence was that Qantas flies tens of thousands of people each week and only a very small proportion of passengers had an impairment like Ms Perrett-Abrahams. I accept that evidence.

79. However, the application of the sub-section requires that I be satisfied that a higher proportion of persons without Ms Perrett-Abrahams' impairment or with a different attribute can comply. No evidence was called about this and Ms Oakley made no submissions.

80. One can readily accept that persons with particular physical features, physical features being a listed "attribute" under s.6 of the EOA, would not be able to comply in practice with the requirement either. For example, a person who was extremely tall or very broad, would not be able to comply. But if what I need to be satisfied about is that a higher proportion without her impairment or with a different attribute can comply, I am satisfied this criteria is met because commonsense indicates that the average person would be able to comply.

81. Is the requirement reasonable? This depends on all the relevant circumstances of the case, including -

(a) the consequence of failing to comply with the requirement;

(b) the cost of alternative requirements, conditions or practices, of the person imposing, or proposing to impose the requirement, condition or practice;

82. On a number of occasions, the Courts have considered the proper construction and application of provisions similar to that with which we are concerned.

83. Bearing in mind that s.9 involves a consideration whether a requirement, condition or practice is not reasonable and a consideration of whether it is reasonable depending on all the relevant circumstances including certain particular matters listed, the approach of the Courts provides some useful guidance about how the Tribunal should consider the issue.

84. Sackville J in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; 150 ALR 1, gives a useful analysis of the way the Courts have considered the proper construction and application of s.5(2)(b) of the Sex Discrimination Act 1984 (Cth) (the SD Act) or its equivalent in other legislation such as s.9 of the EOA. At 32 ff a number of principles emerge :

* First, the starting point in determining whether a requirement or condition is `not reasonable having regard to the circumstances of the case' are the observations of Bowen CJ and Gummow J in Styles (at FCR 263; ALR 634) that :

the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.

* Secondly, the non-reasonableness of the requirement or condition is itself part of the definition of discrimination in s.5(2). Thus s.5(2)(b) is to be applied according to its terms and is not to be influenced by any concept of discrimination existing outside the statutory definition : Waters v Public Transport Corp, at CLR 409-10 per McHugh J; see also at CLR 378 per Brennan J; at CLR 394-6 per Dawson and Toohey JJ; at CLR 383-4 per Deane J; at CLR 365 per Mason CJ and Gaudron J; Dopking (No 2) at FCR 96 per Lindgren J.

* Thirdly, it would be erroneous for the Commission to assume that any difference of treatment between the complainants and (in this case) other employees of the bank is prima facie discriminatory and therefore unreasonable.

* Fourthly, reasonableness (or non-reasonableness), for the purposes of s 5(2)(b) of the SD Act, is a question of fact for the Commission to determine, but it can only do so by weighing all relevant factors. What is relevant differs from case to case, but will, usually at least, include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the aggrieved persons. It may also be relevant to consider the availability of alternative approaches which would achieve the objectives of the alleged discriminator, but `in a less discriminatory way' : Waters v Public Transport Corp, at CLR 394-5, per Dawson and Toohey JJ; and see at CLR 383-4 per Deane J, at CLR 410 per McHugh J.

* Fifthly, the role of the Commission is not to determine whether the decision to impose the condition or requirement was the `correct' one. ... the question is not simply whether the alleged discrimination could have made a `better' or more informed decision. The issue is that posed by the legislation, namely, whether the requirement is not reasonable having regard to the circumstances of the case.

85. As will be observed, those considerations cover the specific requirements contained in s.9.

86. Ms Young submitted that reasonableness can only be determined by weighing up all the relevant factors and referred to Waters case. She submitted that relevant factors include financial considerations, possible alternative approaches, approaches of commercial competitors, any health and safety requirements and efficiency. Counsel submitted that the test is an objective one, in which the nature and extent of the discriminatory conduct is weighed against the reasons advanced in favour of the requirement or condition and all the circumstances of the case are taken into account. She referred to the decision of the Full Federal Court in the Commonwealth Bank case mentioned above.

87. She submitted that the relevant factors in this case were :

(b) Financial considerations. She submitted Qantas gave no probative evidence of these matters and :

(i) Assume only one approach to the issue (removal of seats) unlike the Ansett approach which involves adjustable seats;

(ii) Fail to give details of Qantas' revenue and net profit against which the cost must be viewed;

(iii) Did not consider that Ansett has implemented Ansacare and still competes;

(iv) Whilst Qantas may not receive public funds it is beneficiary of the two airlines agreement and enjoys a considerable market advantage. Ms Perrett-Abrahams did not have much choice about who she would fly with;

(v) The law in the USA is that such disabilities must be provided for in specified ways, including the mandatory provision of bulk head seats in certain circumstances".

88. First, Ms Young submitted that it was relevant that Qantas was a substantial organisation. In her oral submissions, she did not elaborate on that contention and what the significance of the relevance of Qantas being a substantial organisation was when determining whether the requirement to be able to sit in an economy size seat space to be guaranteed economy class travel was not reasonable.

89. Secondly, Ms Young referred to a number of matters which she grouped as "financial considerations". She submitted that Qantas had put forward no probative evidence of this and that there was no reason for the requirement other than a financial one. She referred to the evidence of Mr Smart and Mr Williams which she contended simply showed what the revenue loss forecasts would be, if seats were removed. She submitted that that forecast was meaningless without evidence of Qantas' overall revenue. The evidence failed to give details of Qantas' revenue and net profit against which the cost must be viewed, she submitted.

90. Richard Williams, General Manager for Network Development, prepared a statement which was tendered in evidence. According to his evidence, to remove 1 triple seat and repitch 2 rows at 48 inches translates to a seat loss of 3 per aircraft and 198 for the whole fleet. That seat loss translates into an annual revenue loss of $48,123,068 and the annual revenue loss (x average seat factor) would be $37,737,041. That evidence was unchallenged.

91. Whilst I was not informed what the annual net profit of Qantas is, I accept that the revenue loss is substantial if 1 triple seat was removed.

92. Ms Young submitted that Qantas had not considered the alternative approach of having adjustable seats such as Ansett has. As I understand it, Qantas seats do not adjust in such a way as to enable a seat to be folded down to accommodate a leg support bridge.

93. Counsel submitted that Ansett had implemented a program called "Ansacare" and still managed to compete with Qantas. Ms Valerie Johnson gave evidence about that program. It entails a permanent record of a traveller's special requirements and is recommended if one takes more than 1 return or 2 single flights a year, although it is not a requirement that one does. Ms Johnson explained that if a disabled person with a disability like Ms Perrett-Abrahams, needs a leg support bridge, which the Ansett fleet can accommodate, a passenger would pay for their seat plus 50%. That extra 50% is refunded if the flight is not full. Given that evidence, I accept Ms Oakley's submission that that service comes with a cost and is similar to the disabled traveller airfare Qantas offers persons with disabilities, details of which were tendered. Ansett is not providing that service at the economy class rate and, in any event, it has aircraft with a number of folding seats which I understand Qantas does not. The difference in what they provide is that the Ansett program permanently records one's requirements and its fleet can provide folding seats. If according to Ms Johnson's evidence, the program is only recommended for those who take more than 1 return or 2 single flights a year, in light of Ms Perrett-Abrahams' own travel history, I am not satisfied in the circumstances that it is a comparable alternative, particularly as all it would do with Qantas would be simply to record her requirements without being able to guarantee a particular seat.

94. Ms Young submitted that whilst Qantas may not receive public funds it is beneficiary of the two airlines agreement and enjoys a considerable market advantage. Counsel submitted that Ms Perrett-Abrahams did not have much choice about whom she would fly with, could not afford to fly business class and, as I understand that submission, for those reasons Qantas should make special provision for Ms Perrett-Abrahams' requirements. Ms Oakley submitted that Qantas had never been protected domestically, and that it was a publicly owned airline which competes in the same way as any other airline.

95. Whilst Ms Perrett-Abrahams' choice may be limited, her evidence was that she was able to fly comfortably with Ansett and that she had now chosen to fly with them. There was no evidence before me, for example, that Ansett did not serve the travel routes Ms Perrett-Abrahams needed or that Ansett did not fly at times that she required such that Ms Perrett-Abrahams could not take holidays or travel interstate for work or to attend conferences. Whilst her choice of carrier is limited, which is a significant matter, it is not such that she is left with no choice or that she is prevented from accessing the air transport system altogether.

96. Ms Young referred to legislation in the US, which she said required the airlines to provide people with disabilities to be provided for in specified ways, including the mandatory provision of bulkhead seats in certain circumstances. Ms Oakley drew my attention to the provision referred to, pointing out that it was not as prescriptive as suggested, in that it required one to provide a bulkhead seat or other seat that provides greater leg room than other seats. Ms Oakley tendered extracts from Qantas' Special Handling procedures manual which sets out the arrangements for bookings for persons who are unable to bend their knee and what seating could be provided on each aircraft at check-in.

97. Ms Oakley submitted that Ms Perrett-Abrahams had never been required to sit in a standard economy class size seat. She submitted that aircraft are confined and expensive and of course there were restrictions and that that was obvious. She submitted that the necessity to restrict the space was clearly reasonable and referred to the effect on revenue of even a small change as demonstrated by Mr Williams' and Mr Smart's unchallenged evidence.

98. One of the alternatives canvassed was the pre-allocation of a bulkhead seat. As I understand the exhibits tendered of the plans of the aircraft in the Qantas fleet, only the Boeing 767 aircraft have any dedicated economy class bulkhead seats. According to Mr Smart's statement, Qantas have 28 767s in its fleet and 38 737s.

99. Mr Paul Petrykowycz, the Schedule Development Manager-Shorthaul provided a statement (Exhibit 28). That explained in detail the scheduling of aircraft. In paragraph 8 he states :

"Schedule changes occur so frequently that it would be impossible to guarantee that a particular aircraft will fly a particular route on any given day and therefore making it impossible to pre-allocate particular seats to passengers. Whilst a particular aircraft is allocated months before the flight day, as I have discussed above, there are any number of factors which can cause changes to be made to that schedule".

100. That evidence was unchallenged and explains why it is simply not feasible to guarantee pre-allocation, because less than half the number of aircraft in the fleet have bulkhead seats in economy class and it is not possible to say on any given day what aircraft will be flying on a given sector. Ms Johnson's evidence was that Ansett did not pre-allocate either. I accepted that evidence, and am not satisfied that the alternative approach of pre-allocating a bulkhead seat is a feasible alternative.

101. Taking into account these matters, I am not satisfied that the requirement to be able to be safely seated in an economy size seat space in order to be guaranteed travel in economy class is not reasonable.

102. I am not satisfied the claim of indirect discrimination is made out.