Synnott v Council of the City of Sydney

NCAT Administrative and Equal Opportunity|2022-01-20|Before: Mr J

REASONS FOR DECISION

In this matter, Mr J Synnott (the "applicant"), alleges the Council of the City of Sydney and Belgravia Health and Leisure Group Pty Ltd (collectively the "respondents"), discriminated against him on the grounds of his age in the area of goods and services, namely not providing double width swimming lanes at the Victoria Park swimming pool in Camperdown ("the Pool"). The complaint alleges contravention by the respondents of ss 49ZYA and 49ZYN of the Anti-Discrimination Act 1977 (NSW) ("the ADA"), between 1 January 2020 to 23 February 2021.
The respondents admit that access to, and use of, the Pool is within meaning of 'services' for the purposes of ss 4 and 49ZYN of the ADA. The applicant's complaint is one of indirect discrimination in terms of s 49ZYN(1)(b) of the ADA. The respondents deny the applicant has been subjected to indirect discrimination.

Background to the Claim

On 23 February 2021, the applicant complained to the President of Anti-Discrimination New South Wales against the respondents ('the complaint'). On 23 June 2021, the complaint was declined by the President on the grounds that it was frivolous, vexatious, misconceived or lacking in substance pursuant to s 92(1)(a)(i) of the ADA.
On 12 July 2021, the applicant requested that the complaint be referred to this Tribunal. The complaint was referred on 28 July 2021.

The complaint

At the time of making the complaint the applicant was 74 years of age.
The Pool is adjacent to the University of Sydney and its facilities include two swimming pools, a fitness centre and change rooms. The first pool is a 50m Olympic size pool, consisting of eight swimming lanes. The second is a shallow wading pool, which is approximately 60cm deep and accessible to all users. It is the first pool which is the subject of the applicant's complaint and the one which the remainder of these reasons for decision refers.
The Pool has the following features as at the date of the hearing: 1. the single lanes are 2.8 metres in width; 2. wider outside 'all swimming lanes'; 3. a pool access hoist is available, allowing full support for entry into and out of the water for patrons who require it; 4. the pool is accessible from both the 'shallow' and 'deep' ends; and 5. staff are available to assist patrons accessing the pool.
The first respondent says that the pool has not had any double lanes regularly in operation since around 2003.
The applicant's complaint is that since January 2020, the operators of the pool no longer provide wide lap lane swimming, i.e. two lanes, undivided by ropes. It is this practice that the applicant alleges indirectly discriminates against senior swimmers who want more room to move and feel safe. He contends it is this practice which limits the opportunities for that age group to enjoy the pool.
Since 1 February 2012, the second respondent has been responsible for the operation of the pool under a contract entered into with the first respondent. Part of the agreement requires the second respondent to develop and carry out a programme of swimming activity that optimises the opportunity for all members of the community to participate.
The second respondent manages over 120 pools across Australia and it contends that single width lanes are the most efficient way of arranging swimming lanes to accommodate demand for the broadest range of customers and sections of the community. The respondents jointly say that single swimming lanes optimise the use of available pool space and makes for a safer swimming experience for all the swimmers.
The applicant alleges that the respondents not providing a double swimming lane, as existed for many years at the Pool, constitutes indirect discrimination of a certain cohort users of the Pool on the grounds of their age.
The applicant seeks orders pursuant to s108 of the ADA in the following terms: 1. The complaint substantiated in whole. 2. The respondents reinstate double width swimming lanes at the Pool. 3. The respondents pay a 'substantial financial penalty'.
It is relevant to indicate that the relief sought in (3) above is, in our view, a claim for unspecified compensatory damages, rather than a penalty. The Tribunal has no jurisdiction pursuant to s 108 to make an order for a penalty. However, given our findings, the award of damages is not an issue that we needed to consider.

Evidence

The applicant relied upon the following documentation: 1. The Application filed before Anti-Discrimination NSW and the President's bundle (23 November 2021); 2. Evidence and submissions (including two opinions) filed 21 December 2021; and 3. Email filed 18 October 2021. The applicant also filed written submissions.
The first respondent relied upon: 1. Statement of Thomas Burns dated 24 November 2021; 2. Statement of Geoffrey Yates dated 25 November 2021; and 3. Supplementary statement of Geoffrey Yates dated 15 December 2021.
The second respondent relied upon: 1. A statement of Anthony McIntosh dated 25 November 2021; and 2. A supplementary statement of Anthony McIntosh dated 15 December 2021
Both respondents each filed written submissions and referred to the President's report and the bundle of documents.

The Relevant Provisions of the ADA

The applicant alleges the respondent discriminated against him on the grounds of his age. Discrimination in respect of age in relation to the supply of goods and services is unlawful pursuant to s49ZYA and 49ZYN of the ADA. 49ZYA What constitutes discrimination on the ground of age (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of age if the perpetrator-- (a) on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group. 49ZYN Provision of goods and services It is unlawful for a person who provides, for payment or not goods or services to discriminate against another person on the grounds of age - (a) by refusing to provide the person with those goods or services, or (b) in terms on which the person is provided with the goods or services. …
Section 4 of the ADA defines 'services' as follows: Services include: (a) services relating to banking, insurance and the provisions of grants, loans, credit or finance, (b) services relating to entertainment, recreational refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

Indirect discrimination

As set out above, despite some references in the applicant's submissions that may refer to purported direct discrimination, the applicant confirmed during his oral submissions, and partly in his written submissions, that his complaint was one of indirect discrimination. We have determined the proceedings on that basis.
The matters which the applicant must prove to substantiate a complaint of indirect age discrimination in the provision of services are as follows: 1. The applicant is of a particular age, or belonging to a particular age group; 2. the respondent has refused to provide them with a service, or provided a service on unfavourable terms; and 3. in refusing to provide services, or providing services on unfavourable terms, the respondent required them to comply with a requirement or condition with which a substantially higher proportion of persons who are not of their age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances and with which the applicants do not or are not able to comply.
The applicant bears the onus of proving each element of unlawful indirect discrimination, including that the requirement or condition is not reasonable (see Wright v Commissioner of Police [2014] NSWCATAP 67 at [24]).

The applicant is of a particular age, or belonging to a particular age group

It is not in dispute that at the time of the hearing the applicant was 74 years of age. He identifies as belonging to a group he defines as 'seniors or of advanced age'. The applicant has evidenced that he belongs to such a group, and we find accordingly.

A refusal to provide a 'service' or providing 'service' on certain terms

It is not in dispute that the respondents provided to the applicant a "service" within the meaning of s 4 of the ADA namely, that upon paying an entry fee he was provided with entry to an aquatic facility, namely the Pool, for fitness and recreation. The evidence establishes that the Pool remains available for public use. All members of the public, including the applicant, may access and use the Pool and its related facilities. The applicant's evidence establishes that his complaint relates to safety concerns, stress and anxiety he has in using a single swimming lane of the Pool.
There is no evidence that there is any actual or constructive refusal to provide the "service", namely the Pool, on the grounds of the applicants' age or otherwise. While there is no complaint of direct discrimination, for completeness, we find the respondents have not refused to provide a service to the applicant.
As it relates to whether the respondents provided the use of the Pool to the applicant or other persons within the age group he identifies on any 'terms', we find that there were no terms, relevant to the complaint, which are attached by the respondents to any person, including the applicant, about single lanes of the Pool.
McHugh J, in Waters v Public Transport Corporation (1991) 173 CLR 349 at 407, said a requirement or condition is imposed where: …some stipulation or set or circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed.
We do not accept the applicant's contention that a 'requirement' or 'condition' of using the Pool was that he had to swim in a narrower single lane. Relevantly, there is no stipulation or set of circumstances that must be obeyed or endured in the provision of the service by the respondents. Despite the method of use by patrons of the Pool, they were able to enter the facility, swim across, or from end to end of, the Pool and exit it at their leisure.
The appellant's argument that the issue of a requirement or condition, namely that "I am required to swim in narrower single lanes", appears to be conflated with what may be a 'requirement' or 'condition' on which the service was provided. An example of a condition may be that you must pay a fee to enter the Pool. An example of a requirement may be that you must swim in a certain direction when undertaking lap swimming.
We find that the provision of single lanes for lap swimming, rather than double lanes, is not a 'requirement' or 'condition' on which members of the public are provided the service. The Pool is a facility made available to all swimmers. The terms, a 'requirement' or a 'condition' on which a service is provided, is distinct from the manner in which a service is provided. The scope of s 49ZYA of the ADA (and corresponding provisions relating to other grounds of discrimination) has been held by the Tribunal (and its predecessor Tribunals) to not extend to the manner in which the service is provided; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28], citing Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [49], Turner v State Transit Authority [2004] NSWADT 89 at [59]-[77] and Whitfield v State of New South Wales (NSW Police Force) [2011] NSWADT 265 at [92].'
We find that the complaint by the applicant relates to the manner in which members of the public use the Pool rather than terms on which members of the public are expected to use the Pool. There are no 'terms' on which the service is provided to the applicant or persons of his age, as all swimmers use the Pool in the same manner.
We therefore find that the applicant has not proved the first element of indirect discrimination - that the service is provided on certain terms. It is at this stage the complaint should be dismissed.
However, in the event our findings about whether the service was provided on certain terms are incorrect, we would have, in any event, dismissed the complaint for the following reasons.

In providing services on unfavourable terms, was the requirement or condition one in which the applicant was unable to comply?

We accept the written submissions of the first respondent and the applicant's evidence, that he cannot physically comply, or it is more difficult for him to comply, with using a single 2.8m swimming lane for lap swimming personally, than it is for others.

Are a substantially higher proportion of younger persons able to swim in single lanes?

It is incumbent upon the applicant to establish that he is part of a cohort of older persons who are comparatively unable to comply with any requirement to swim in a single lane. The applicant relies upon a letter from Professor Phyllis Butlow from the School of Psychology at the University of Sydney dated 20 August 2021. Professor Butlow's view is that single lanes require swimmers to swim close to lane ropes, possibly causing cuts, and creating a stressful environment due to crowding. Professor Robert Cumming from the School of Public Health at the University of Sydney has also provided a letter dated 9 September 2021. The views of Professor Cumming are of a similar nature to Professor Butlow.
The views of both Professors provide a broad assertion that the use of a single lane for older people is more stressful and worrying for swimmers due to their age. What is lacking in the applicant's complaint is evidence that older persons, within the age group he identifies, are not able to swim in single lanes, or that younger persons of an unidentified group are in a substantially better position to be able to do so. The applicant's claim would have failed on this element and led to the same decision to dismiss the complaint.

Is the requirement to swim in a single lane reasonable?

Bowen CJ and Gummow J in Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263 stated: 'The criterion is an objective one, which requires the Court to weigh the nature and effect of the discriminatory effect, on the one hand, against the reason advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.'
We accept the evidence of Mr Anthony McIntosh where he sets out the industry guidelines for pool operations being the 'Royal Lifesaving Guidelines for Safe Pool Operations' which includes the optimum lane width as being 2,500mm. We accept the evidence of Mr McIntosh that the pool single lanes have a width of 2,800mm and it includes two outside lanes of 3,300mm.
In the absence of detailed expert evidence as to the risk to people swimming in single lanes at the Pool, including older people, the requirement to swim in a single lane is in our view prima facie reasonable.
For these reasons the applicant has not established unlawful indirect discrimination and his complaint must be dismissed.

Orders 1. The complaint is not substantiated. 2. The proceedings are dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2022

New South Wales Civil and Administrative Tribunal Act 2013(NSW)

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