Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council
[2004] FMCA 915
•1 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC v HERVEY BAY CITY COUNCIL | [2004] FMCA 915 |
| HUMAN RIGHTS – DISABILITY DISCRIMINATION – Accessibility by mobility impaired persons to Community Centre and various picnic tables located on the foreshore – whether a viewing platform should be created at Community Centre which is infrequently used for entertainment, whether a suitable ramp should be provided – whether all picnic tables should allow access to mobility impaired persons – whether disabled toilets should have internal hand basins – unlawful discrimination found in respect of toilets with external hand basins – Council did not establish unjustifiable hardship. |
Disability Discrimination Act 1991 (Cth), ss.4, 6, 11, 23, 24
Human Rights and Equal Opportunities Act 1986 (Cth), ss.46PV(2)
Walters v Public Transport Corporation (1991) 173 CLR 349
Sluggett v HREOC (2002) EOC 93-234
Scott & Anor v Telstra Corporation Ltd (1995) EOC 92-717
Clarke v Catholic Education Office [2004] 202 ALR 340
Finney v Hills Grammar School (1999) HREOCA 14
Hills Grammer School v HREOC & Ors (2000) 100 FCR 306
Francey & Anor v Hilton Hotels (1997) EOC 92-903
| Applicant: | ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC |
| Respondent: | HERVEY BAY CITY COUNCIL |
| Amicus Curiae: | ACTING DISABILITY DISCRIMINATION COMMISSIONER, HREOC |
| File No: | BZ3411 of 2002 |
| Delivered on: | 1 December 2004 |
| Delivered at: | Brisbane |
| Hearing dates: | 2, 3, 4 & 5 June 2003 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr O’Gorman |
| Solicitors for the Applicant: | McCullough Robertson Lawyers |
| Counsel for the Respondent: | Mr Green |
| Solicitors for the Respondent: | MacDonnell’s Solicitors |
| Solicitors for Amicus Curae: | Mr Hunyor |
ORDERS
That the Hervey Bay City Council shall, within 9 months, construct and install internal hand basins in the accessible toilets at Scarness, Organ Park, River Heads Progress Park, Freedom Park, Ansons Road and Apex Park.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ3411 of 2004
| ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC |
Applicant
And
| HERVEY BAY CITY COUNCIL |
Respondent
REASONS FOR JUDGMENT
Background
The Access for All Alliance (Hervey Bay) Ltd (“the Applicant”) alleges disability discrimination in the provision of services and access to services by the Hervey Bay City Council (“the Council”). The particular services and premises which are the subject of the case are:-
a)An outside entertainment area at the Burrum Heads Community Centre which is said to be inaccessible because:-
i)it lacks a suitable ramp; and
ii)no area (such as a ‘concrete pad’) is provided to view outdoor entertainment.
b)Concrete picnic tables on the foreshore at Scarness which it is said fails to allow access for members of the Applicant;
c)Allegedly inaccessible toilets on the Scarness foreshore which provide inappropriately placed outside hand basins.
The Council says that there is no condition or requirement with which any of the persons are required to comply that is either not reasonable, or, with which such person is not able to comply. In addition, the Council contends that if it is found that there has been discrimination then, the costs of obviating any such requirement or condition would impose unjustifiable hardship upon the Council.
On 25 February 2003, as a result of an application made by the Acting Disability Discrimination Commissioner, the Commissioner was given leave pursuant to s.46PV(2) of the Human Rights and Equal Opportunities Act 1986 (“HREOC Act”) to appear as amicus curiae to assist the Court. At the conclusion of the hearing the Commissioner made written and oral submissions on:-
a)The correct approach to statutory construction in the context of the Disability Discrimination Act 1991 (Cth) (“the DDA”);
b)The importance of dignity and amenity in determining whether or not a person can, for the purposes of the DDA, comply with a relevant requirement or condition and whether or not it is ‘reasonable’;
c)The interpretation of the defence of ‘unjustifiable hardship’ under ss.23(2) and 24(2) of the DDA, the test for which is set out in s.11, and its relationship with the concept of ‘reasonableness’ in s.6; and
d)The relationship between Australian Standards, the Building Code of Australia (“the BCA”) and the DDA, including the relevance of the Australian Standards and the BCA in determining the ability of persons with a disability to comply with a requirement or condition, and the concept of ‘reasonableness’ under s.6.
Statutory Framework
Section 6 of the DDA defines indirect discrimination as follows:-
6. Indirect disability discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
Section 23 of the DDA makes discrimination unlawful in the area of access to premises in the following terms:-
23. Access to premises
(1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(a)by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b)in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c)in relation to the provision of means of access to such premises; or
(d)by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e)in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or
(f)by requiring the other person to leave such premises or cease to use such facilities.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if:
(a)the premises are so designed or constructed as to be inaccessible to a person with a disability; and
(b)any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.
Premises are defined by a broad and inclusive definition contained in s.4 of the DDA as follows:-
“premises” includes:
(a)a structure, building, aircraft, vehicle or vessel; and
(b)a place (whether enclosed or built on or not); and
(c)a part of premises (including premises of a kind referred to in paragraph (a) or (b)).
Section 11 of the DDA states the following in relation to ‘unjustifiable hardship’:
For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a)the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b)the effect of the disability of a person concerned; and
(c)the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d)in the case of the provision of services, or the making available of facilities—an action plan given to the Commission under section 64.
Approach
The approach to be adopted is well established by a long line of authority and requires, in respect of the 3 distinct areas, a determination of:-
a)Whether there has been indirect discrimination, the onus of which falls upon the Applicant.
b)If discrimination is made out, it is unlawful under s.23(1) of the DDA.
c)Would any alteration to the premises impose ‘unjustifiable hardship’ on the Council, with the onus of proof resting on the Council.
The Commissioner in his submissions contends that:-
“in determining whether or not an applicant can ‘comply’ with a requirement or condition for the purposes of s.6(c), the Court should look beyond ‘technical’ compliance to consider matters of practicality and reasonableness.”
An issue arose, in submissions, as to how the determination of ‘reasonableness’ should be made. I was of course referred to Walters v Public Transport Corporation (1991) 173 CLR 349; Sluggett v HREOC (2002) EOC 93-234 and the Commissioner particularly relied upon the remarks of President Wilson in Scott & Anor v Telstra Corporation Ltd (1995) EOC 92-717.
In supplementary submissions received, I was directed to the recent authority of Madgwick J in Clarke v Catholic Education Office [2004] 202 ALR 340, and particularly at 353, where His Honour stated the following as settled propositions of law:-
(2)“The onus of showing that the impugned requirement or condition is not reasonable rests on the person aggrieved by it.
(3)Reasonableness is to be determined having regard to all the circumstances of the case. These include, but are not limited to:-
·The nature and extent of the effect of the discriminatory requirement or condition;
·The reasons advanced in favour of it;
·The possibility of alternative action; and
·Matters of “effectiveness, efficiency and convenience”.
(4)The test is an objective one – neither the preferences of the aggrieved person nor the mere convenience of the service supplier can be determinative, though both may be relevant factors.
(5)The test of reasonableness is “less demanding that one of necessity, but more demanding than a test of convenience”. Thus, if the aggrieved person can show that it may have been convenient for the discriminator to impose the requirement or condition but it was not reasonable in all the circumstances, that will suffice. Likewise, if it appears that although it was not necessary for the discriminator to impose the requirement or condition, but the aggrieved person does not establish that it was unreasonable to do so, there is no indirect discrimination, as statutorily defined.
(6)The test is reasonableness not correctness; that is, a decision of the putative discriminator to impose the requirement or condition, may be a reasonable one although not everyone, or even most people, would agree with it.”
I adopt those propositions as accurate, and in so doing, note that the Commissioner no longer pressed its submission that “evidence adduced by the Respondent in relation to hardship faced in effecting an alteration to premises should not be considered relevant to determining the reasonableness or otherwise of a requirement or condition for the purposes of s.6 of DDA”.
Relevance of Building Code of Australia and Australian Standards under DDA
The Commissioner made the following well considered submission:-
“16.Neither the BCA nor the Australian Standards have any legal status under the DDA. It is noted that s 47(2) of the DDA provides an exemption for acts done ‘in direct compliance with a prescribed law’. No laws relevant to the present case (such as State laws which may regulate buildings or facilities in public places) are ‘prescribed laws’ for the purpose of the DDA; see reg 2A and Schedule 1, Disability Discrimination Regulations 1996 (Cth). They are to be distinguished from ‘disability standards’ as provided for by s 31 of the DDA.
17.A breach of the BCA and/or Australian Standards will not necessarily result in there being unlawful discrimination under the DDA. Conversely, the fact of compliance with the BCA and/or Australian Standards will not be, of itself, a defence to a claim of unlawful discrimination under the DDA. Indeed, the Australian Building Codes Board has acknowledged inconsistencies between the BCA and the DDA; (see Annexure MS1 to the Affidavit of Michael Small, 5 May 2003, para 10).
18.There are a number of reasons for this “gap” between the requirements of the BCA and the Australian Standards and the DDA. Most obviously, the BCA and the Australian Standards are designed to meet a variety of needs and satisfy a variety of concerns, only one of which is access to premises by people with disabilities. In addition, those documents are limited in their scope – they do not cover all aspects of buildings or the built environment more generally. Futhermore, even where the BCA and Australian Standards set standards for certain design features, compliance will not guarantee access for all persons with disabilities. As outlined in Annexure MS1 to the affidavit of Michael Smith dated 5 May 2003, the Australian Standards have been designed to suit the physical access needs of “at least 80% of the most able in the disability group most affected” by a particular design feature. Whether the satisfaction of such a standard is, in the circumstances, “reasonable” for the purposes of the DDA is something that a Court will need to determine on a case-by-case basis.
19.The Commissioner submits, however, that as standards developed by technical experts in building, design and construction, the BCA and the Australian Standards are relevant and persuasive in determining the following issues:
(a)Whether or not a requirement or condition is ‘reasonable’ in the context of the definition of indirect discrimination under s 6 of the DDA; and
(b)Whether or not any hardship faced by the respondent in effecting an alteration to the permises the subject of the complaint would be ‘unjustifiable’.”
I regard the submission as correctly stating the law. I regard the Australian Standards and the BCA as being a minimum requirement which may not be enough, depending on the context of the case, to meet the legislative intent and objects of the DDA. In this case, at the time of the hearing, no disability standards were in force under the Act, and no Action Plan had been submitted under Part 3 of the DDA.
Representative complaint
The Applicant is a volunteer community group which was established to ensure and advocate for “equitable and dignified access to all members of the public to premises, buildings and facilities”.
The Council contends that:-
“This is not a representative complaint in the sense that it represents a class constituted by a group of people with identical disabilities. The persons on whose behalf the complaint is made is constituted by a disparate group of people of varying levels of disability. This is not a representative complaint in the nature of an organisation or entity that represents a clearly identifiable group of people with identical disabilities whose interests are similarly affected by particular conduct or a specific act (cf Scott & Anor v Telstra Corporation (1995) EOC 92-717). There is no clearly defined group or class of people that is referrable to a particular disability. It is submitted that if it is pursued as a representative action in the sense of representing a clearly defined class of people then the applicant must fail on the basis that the class as a whole has not been discriminated against.”
Whilst it is true that the members of the Applicant who gave evidence had different disabilities and different levels of functionality, I am satisfied that they all faced challenges as to access to premises which are not experienced by able-bodied persons. To that extent they do form a defined group. I do not propose to dismiss the application, as submitted by the Council, on this “technical” basis nor was the trial conducted, in the end as a Representative Complaint. All the persons who gave evidence for the Applicant did so on the basis of maintaining a personal right.
Conditions or requirements
Counsel for the Applicant, Mr O’Gorman, did not seek to frame the alleged requirement or condition imposed nor were the terms or conditions articulated concisely elsewhere.
At paragraph 8 of the Respondent’s written submissions an attempt to define the conditions is made. I propose to deal with the three distinct areas of complaint within the matrix of the following requirement or condition.
Burrum Heads Community Centre
Persons are required to attend and enjoy entertainment held from the stage at the centre viewed from the outside grassed area without:-
a)An accessible path and platform; and
b)An accessible ramp and path from the grassed area to the toilets situated inside the Centre.
Scarness foreshore tables
Persons seeking to enjoy the amenity of the Scarness foreshore are required to use tables which do not make provision for both wheelchair access to the tables and are not designed to accommodate the wheelchairs at the table.
Scarness foreshore toilets
Members of the Applicant seeking to enjoy the amenity of the Scarness Foreshore are required to use toilet facilities where wash basins are not concealed from the public view.
Evidence
I propose, in a broad sense to identify the evidence relied upon by the parties. I then propose to deal with each complaint within the legal framework earlier mentioned and the requirement or condition I have framed above.
Applicant’s evidence
The members of the Applicant generally gave their evidence in camera – so as to protect their dignity whilst discussing sensitive and personal toileting habits and routines. As a result, in these reasons, I propose to further maintain their anonymity by only using initials for their surname.
Mr Robyn King is a volunteer of the Applicant and an Associate Member of the Association of Consultants in Access Australia. He describes himself as an “Access Consultant”. He provided photographs and some identification of issues of concern. In particular he said that there are 15 round picnic tables placed in a pleasant shaded setting on the Scarness foreshore, not one of which allows access to mobility impaired persons. He further said that there were no tables on the foreshore that accommodate more than one wheelchair. The access path to the round tables is via a grassed area with no path being provided.
He denied any attendance at the “International Day of the Disabled” function nor has he seen disabled persons engaging in a social activity in the park but did say the tables, in the prime position (which do allow wheelchair access) are usually taken leaving only the concrete inaccessible tables available.
Ms SK, who is 69 years old, was diagnosed with post-polio syndrome in 1996 (arising from contracting polio when 3 months old), which is a progressive illness making walking difficult, even with aids and assistance, on anything but a smooth surface. She says she is “unable to access grassy areas, as I cannot manoeuvre through the grass or through any rough surface area with ease”. Ms SK says, in respect of the Burrum Heads Community Centre, she is precluded from attending any outside functions, as there is no accessible path of travel. She found it impossible “to walk up the only access ramp”; to access the toilets and canteen from the outside entertainment area. She says that once she realised the “inaccessibility of the environment, I did not want to attend any outside functions as I would have to stand aside and feel separate from the other patrons.” Even when wearing a full leg brace, she found the ramp “extremely difficult to negotiate”.
Under cross examination, Ms SK confirmed she had only been to the Burrum Community Centre on one occasion. She tends to avoid areas with grass and she uses a motorised scooter when going to the foreshore.
She finds it difficult to eat at the concrete tables at Scarness and thinks, because a scooter or a wheelchair could not get close enough to the table, anyone in that position having food could only manage by putting food on their lap. Because she lives near the water, she has little need to attend the foreshore. She has not seen or used the “social table” at Torquay.
Although she has no access problem in the unisex toilet facilities at Scarness, she needs private hand basin facilities at times when she has soiled her caliper or the crepe bandage which is wrapped among the top part of the caliper in the crutch area. An accident can easily occur and she feels that to effectively “clean the caliper or myself… would require me to fully remove my trousers, pantyhose and crepe bandage at the hand basin outside the toilet cubicle in full public view”. She would have no dignity in respect to going to the toilet. Under cross examination, she denied that carrying “Wet Ones” was a solution and asked “why should I have to take Wet Ones when no one else does?”
I formed the view that a toileting accident for this lady was, thankfully, a rare occurrence.
Ms GS is 53 years old and suffers from Fredreich’s Ataxia, a progressive neurological disease that affects her balance and strength. She is confined to a wheelchair for distances in excess of 4 metres. Since its opening in June 2000, she has been to three concerts at the Burrum Heads Community Centre. She says that without the assistance of her partner, she would not “have access from the car parking area to the grassed area at the back” and it would be “impossible” to access the canteen or toilet facilities “if I had been positioned on the grassed area at the rear of the Community Centre”. She acknowledged that she could negotiate the grassed area with help “but I want to go independently if I can”.
When she attended the concerts she couldn’t see “a thing” and it was too hard to “push through the grass”. She regarded the grass as “a barrier”. It seems her attendance was incidental to her husband’s selling ice-creams from his ‘Mr Whippy’ Van.
She is aware of the round concrete picnic tables on the Scarness foreshore. The round tables are positioned away from pathways so that those confined to wheelchairs “must traverse grassed areas, which is very difficult, even with the assistance of able-bodied persons”. Whilst she says that she could not be part of a group using the tables, she did acknowledge that additional accessible tables are “in the best spots” but “they are always full”.
Ms GS was part of the team which designed the “social table” located on the Torquay foreshore and certainly commends it as a more suitable design. When she attended “Scooter Day” at Scarness, she was not able to comfortably access the tables in the Rotunda in her Scooter.
Ms SR suffers from Guilliam-Barre Syndrome, and has done so since August 2000. This condition:-
a)requires only hours to manifest itself;
b)paralysed Ms SR from the waist down;
c)affects her bladder control and requires her to maintain “a regular routine of toiletting”.
Importantly, Ms SR said she has little or no warning about having to empty her bladder and bowel. As a result she says that “there are lots of places I don’t go because there are no accessible toilets”. She has had “accidents” where she has soiled herself and had to go home to clean herself up.
As a Hervey Bay resident she would like to have as much access as she can to the local attractions such as the foreshore, but finds herself “discouraged from using facilities on the foreshore simply because of the possibility of humiliation”. She said that:-
“I believe that I would not think so negatively about travelling to the foreshore if the basins were inside. This would not only provide me with peace of mind, but also give me the practical reality of being able to clean myself up in the event of an accident without being under public scrutiny.”
In respect of the round picnic tables along the Scarness foreshore, she says she is simply unable to use them. She raises a similar concern to the other witnesses about the difficulty of traversing the soft grassed area to reach the tables.
Ms KH is 34 years old and was born with and suffers from Spina Bifida. As such there was associated nerve exposure, causing nerves that connect with her spine to her bladder, bowel and enable movement in her legs to be disconnected. After some years of utilising an ileal conduit bag, the operation was reversed with the introduction of the self-catheterisation innovation. The catheter is inserted into the bladder and allows control of bladder movements.
Prior to using the catheter, a highly regimented routine for cleaning and replacement must be undertaken. It can take Ms KH up to 45 minutes in a bathroom. A wash basin is critical to the appropriate regime – and thorough cleaning reduces the prospects of urinary tract or kidney infections. As a result of her condition there is a “real sense of urgency associated with my need to attend the bathroom” to avoid accidents and attending these procedures in private (which cannot be achieved using outdoors hand basins) maintains a sense of personal dignity.
Ms KH recalled attending a party on the Scarness foreshore area with family and friends, and having accessed the toilet and used the facilities, in order to properly clean herself, she had to call for her mother to bring a sponge inside to enable her to clean herself properly.
Ms KH identified the problems for her with the outdoor hand basin are:-
“(a)I do not want to have to leave the cubicle in a partially undressed state to ensure that I am completely clean and have removed all the urine from my body and the catheter that I just used;
(b)Having to leave and re-enter the toilet facility would present additional problems in respect of touching handles of the doors and the catheter and consequently increase the chances of my susceptibility to infection.”
Ms KH says the 15 fixed round picnic tables at the Scarness foreshore have small gaps between the fixed seating and it is “impossible to get a wheelchair under the table properly”. Ms KH who raised concerns about accessing these tables because of the lack of paved paths to the tables. She has had an opportunity to use the “social table” (designed by Mr King and others), and it provides an opportunity for both persons in wheelchairs and ambulant members of the community to sit together.
The Applicant also relied upon an expert report of Architect John Deshon. I propose to deal with his evidence when considering the Council’s claim of ‘unjustifiable hardship’.
Respondent’s evidence
Much of the Respondent’s evidence was directed to the issue of ‘unjustifiable hardship’, and costs implications arising from any rectification or capital works which might be ordered. I shall deal with that issue later in these reasons.
Malcolm Chard is the President of the Burrum District Community Centre. Although the adjoining grassed area is used for monthly markets, no outdoor event held from the Centre has occurred since 2001. The events previously were in the nature of a fair and were held in June and at Christmas time. During the course of the fairs, entertainers performed from the stage of the Centre which performances were viewed by members of the community from the ground oval playing field. Prior to the concerns raised by the Applicant, he says he has received no complaints from mobility-impaired persons in relation to the Community Centre or its surrounds.
As far as the ramp is concerned, it was installed for the purpose of taking deliveries to the Centre which is its primary use. He opined that putting handrails on the ramp would reduce its effectiveness as a ‘delivery’ ramp.
Mr AD suffered severe brain damage when the victim of a hit and run car accident in 1989 and is confined to a wheelchair for life. He supports the Council in the facilities it has provided for mobility-impaired persons. In particular he has visited the Scarness foreshore park dozens of times and said that:-
(a)He utilizes the rectangular picnic tables set under the shade, which are accessible to wheelchairs at both ends.
(b)He has a personal preference for the round tables because he doesn’t like sitting at the ends. Whilst it is true the gaps between the “fixed seats” of the round picnic tables are not wide enough to get the wheelchair close to the edge of the table, he gets close enough to feel included in the group using the table.
(c)He has the choice of using the more accessible rectangular tables nearby if he wants to do so – it is a matter of personal choice.
(d)He regards the Scarness foreshore park as a “wheelchair friendly park” which has “a very high level of accessibility for the disabled”.
Under cross examination, Mr AD confirmed he is unable to wheel himself – requiring either assistance or the use of a motorised wheel chair.
Mr Bryan McConochie suffers from multiple sclerosis which causes a modest mobility disability. As a result of his deteriorating physical condition he has developed an interest in access issues for the disabled and has spent some time collecting information and statistics. He has been employed as a trainee with the Council for 12 months and identified in his affidavit a number of “disability related” projects undertaken by the Council.
He says that he has never seen internal or external hand basins at public amenities being used to wash catheters and does not “see any disadvantage, restriction, limitation or discrimination involved in any aspect of the driveway” at the Burrum Heads Community Centre.
He says he is very familiar with the picnic tables at the Scarness foreshore development, having visited the site on approximately thirty (30) occasions and having used the facilities as a venue for a major gathering of disabled people on 3 December 2003 for the “International Day for the Disabled”. The function was sponsored by the Council and organised by him. He has seen people in wheelchairs utilising the “new rectangular picnic tables” (of which there are 11) placed in the shaded positions with views of the ocean. They are located, he says, in the prime position. During gatherings of disabled persons, many with motorised scooters still use the round tables whilst the rectangular tables are very popular – although some people like him, don’t like sitting “at the head” of the table.
Mr McConochie is incontinent and presently seeks to avoid using a catheter. When, in cross examination he was confronted with stories of the lack of dignity some people may feel after a toileting accident has occurred, he freely acknowledged that “it would be preferable for hand basins to be inside” and when he himself had an accident near the Scarness foreshore “it would have been nice to have the basin inside”.
Senior Sergeant Bernard Martin has been the officer in charge of the Hervey Bay Police Station since 1998. He is involved with the Council and other community groups in forms of local community partnerships focused on crime analysis and reduction. He identified the Scarness foreshore and Freedom Park as two areas of significant criminal activity.
The principal areas of anti-social behaviour related to assaults, drug-related issues and possibly prostitution issues. Since the development and upgrade of facilities on the Scarness foreshore, the number of incidents have declined which he attributes to:-
(a)better lighting;
(b)better facilities;
(c)appropriate areas of vegetation; and
(d)the greater number of people now using the area.
He acknowledged that the disabled toilets, by their design did not encourage frequenting by drug users. Appropriate receptacles for disposal of syringes are provided now beside the outdoor hand basin.
I got the impression that he felt some users may be attracted to hand basins being located internally.
Mr Noel Hiffernan has been a mid-thoracic paraplegic since 1971, who has a diverticular of the bladder and, as a result, has been self-catheterising for 15 years. He is very articulate and has been working as a well known Access Facilitator. He did a workshop on access issues in Hervey Bay in 2001.
His Affidavit gave extensive evidence of the appropriate recommended regime to be adopted to self-catheterise and importantly said that:-
“The most fundamental consideration is ensuring that the technique is conducted in as aseptic a situation as possible. Self-catheterisation is not a procedure to be conducted in a sterile context, it is recommended that it be conducted in the cleanest possible manner and environment.”
He has used the toilets at Freedom Park (which are the same as those at the Scarness foreshore) which also has an external hand basin and says he did not experience a “loss of dignity” by reason of his necessity to use the external hand basin. He also said he did not feel “that there was any compromise of the hygiene requirements that I need to adhere to in order to comply with my normal toileting regime”.
Having visited the Burrum Heads Community Centre, he says he did not experience any difficulties in negotiating the grassed area or the ramp. He expressed the same view about the grassed areas around the picnic tables on the Scarness foreshore, and remarked that:-
“I was pleased to see that there were a number of choices open to me as a person with a mobility disability in respect of my capacity to enjoy the amenities presented by the foreshore park.”
Under Cross examination, he acknowledged that it “makes sense that a basin on the inside is better than a basin on the outside” and that “common sense tells us to put the basins on the inside”. He said he has good upper body strength, but still believed that most people in wheelchairs would negotiate the ramp and grassed areas without assistance.
He also conceded that his efficient self-catheterising results from
15 years of experience (and I would also say, from a very “can do” attitude), and that less experienced persons could be confronted with an embarrassing situation after an “accident”.
Ms Maurine Gibson is employed by the Council as Principal Officer of Community Development and a member of the Hervey Bay City Council Access Audit Team (AAT). She says the AAT was established in September 2000 following recommendations of an Access Assessment undertaken by Mr Hiffernan. The Council is in the process of preparing an Action Plan to meet the requirements of Part 3 of DDA, which she anticipated would be completed by June 2003. She indicated that she was not aware of the AAT ever being asked to consider the concerns raised at Burrum Heads Community Centre, however the foreshore toilets (and external hand basins) have been raised. The impact of budgetary matters affects the priority the Council can give to a range of projects, including the foreshore toilets. Her evidence was to the effect that Council considers all necessary access issues within the context of priorities and budgetary allowances and in a planned and coordinated manner.
Ms Joanne Lambden is the Executive Manager of Community and Recreation of the Council, and is responsible for implementing Council’s decisions for new development and refurbishments of much of the Council’s public infrastructure on parks and reserves in the last year.
Whilst confirming the intended primary purpose of the “ramp” at Burrum Heads Community Centre was for goods to be delivered and was not constructed to Australian Standards or Australian Building Code requirements with regard to gradient, she says that:-
“Mobility impaired members of the applicant organisation and/or otherwise members of the public can access the sporting fields directly, by, if not using the delivery ramp, then travelling down the grass slope and onto the sporting fields … to watch any relevant entertainment that might be conducted. Alternatively access may be gained through the ramp that leads from the centre of the car park, and then to the sporting field.”
And further that:-
“The respondent denies that there is any need for a concrete path onto the sporting field”
And that:-
“If any concrete path was erected, as suggested by the Applicant, it would destroy the primary purpose of the sporting field. The sporting field could not have a concrete path on it as it would make playing sports impossible, unless the sporting field was repositioned further away from the Centre.”
Ms Lambden says the Council elected to have external hand basins “as a means to facilitate and ensure public safety in these areas” and confirmed that the Council’s policy in putting in external hand basins “was to ensure that the areas were amenable for general members of the public… whilst at the same time providing a measure of safety for people to perform general washing tasks in particular, including children washing their hands and various items such as plates and other items that might be used for family picnics.”
Ms Lambden says that as the Council has privacy concerns “similar to those raised by the Applicant, the Respondent has undertaken to include one internal hand basin in any new/refurbished toilet block”.
Ms Lambden relied upon a number of reports by other Council officers relating to issues of costs of rectification and the Council’s budgetary position. I deal with some of those issues shortly.
View
On the first day of the trial (2 June 2003), I conducted a view of the areas of concern. The colourful plan (Exhibit 1) properly depicts the Burrum District Community Centre. A well constructed car park with a well designed ramp/pathway to the Centre exists. The toilets are internal. A large “roller-door” is constructed at the rear of the Centre which opens to expose the stage (also visible from inside the Centre) to the outdoor grassed area which forms part of the existing oval. The location of the Applicant’s proposed path and platform (direct from the carpark) is shown in blue on Exhibit 3. I was able to determine where the path and platform would lie.
My inspection of the toilet facilities at Freedom Park and the Scarness foreshore revealed the existence of external hand basins. Certainly the hand basins are not shielded from public view, and in the case of Scarness foreshore, are adjacent to and easily viewable from the children’s playground (swings).
I inspected and observed the fixed concrete round picnic tables and seating. They are shown correctly in the photograph being “Exhibit 4”. They are in a shaded area, and apart from a concrete area under the tables, they are not connected to any paths. The ground area around the tables was well maintained and firm.
Certainly a number of rectangular wooden and metal tables were erected in prime positions along the foreshore. They provided access, at each end (although one end more than the other) for a wheelchair. Paths to these tables existed.
I also viewed, by myself, the newly designed “social table” which is located on the foreshore at Torquay. It certainly, from my observations, is a superior design accommodating in a creative way spaces for wheel chairs and ambulant persons.
Findings
Discrimination can occur in many ways. It can be deliberate or inadvertent. It can be malicious or benign. Intention is not a requirement to find a breach of the DDA (Walters supra at 359).
I am satisfied that the 3 areas, the subject of my inquiry, all fall within the definition of ‘premises’ for the purpose of s 4 of the DDA. I am also satisfied that the witnesses Ms SK, Ms GS, Ms SR and Ms KH who make allegations of unlawful discrimination in these proceedings, are persons under a disability entitled to the benefit of the DDA.
Burrum Heads Community Centre
On the whole of the evidence, the Applicant has not satisfied me that the conditions framed at paragraph 20 of these reasons were unreasonable. This conclusion is based on the following findings:-
(a)The area to which access is sought is as much a viewing area for the stage (from an outside perspective) as it is for any activity taking place on the oval. Markets are held monthly and Carnivals irregularly.
(b)The activities on the oval are irregular. The activities in the Centre, which have a stage component, have been held no more than 2 times a year and none since 2001. The stage can be accessed and viewed from inside the centre.
(c)Whilst access across grassed areas can provide some challenge for mobility impaired persons (without assistance of a carer or a motorised scooter/wheelchair) others can manage the journey.
(d)The ramp does not comply with the required gradient for access by persons (exceeding the maximum of 1 in 4 pursuant to Australian Standard 1428.1) – however it was never designed for that purpose. The installation of handrails would make it less practical for use of deliveries and the like, which was its intended use.
(e)The Community Centre provides a very adequate and well designed car park and path from the car park to the centre where the toilets and canteen are situated;
(f)I am not satisfied an expensive relocation (sideways) of the oval would be required to accommodate the path and the platform proposed by the Applicants (even in these times of hyper-vigilance against actions for negligence). I am also not satisfied that the costs of construction for the limited historical use of the area, coupled with the reasonable alternatives of access via the grassed surrounds to a natural setting, make the non availability of the path and platform unlawful discrimination.
(g)I accept, as Mr Hiffernan said, an idealist endeavour is to seek that every premises or venue is accessible. Not only in Hervey Bay, but around Australia, a number of rural sporting fields and ovals offer access in a similar manner to that offered at Burrum Heads Community Centre.
From the totality of the evidence, I am satisfied that the access to the Centre, its interior facilities and its surrounds reflect sound design and reasonable requirements and conditions.
The applicants have therefore failed to satisfy the onus upon them in respect of this issue.
Scarness foreshore tables
On the whole of the evidence the Applicant has not satisfied me that the condition framed at paragraph 21 of these reasons was unreasonable. This conclusion is based on the following findings:-
(a)Although none of the 15 round picnic tables permit access to the tabletop because the gap between the seats is too narrow for wheelchairs, many mobility impaired persons have used the present structures happily and without apparent complaint.
(b)The said tables, I am satisfied, were designed many years ago, and rather than discarding them entirely, the Council placed them in the flat area around the playground and under the trees for use by all members of the general public.
(c)The prime positions on the foreshore for picnic tables are occupied by the rectangular tables which:-
(i) Have been designed to allow access by wheelchair (albeit at the “heads” of the table);
(ii) Take advantage of the premier views of the ocean in a shaded environment;
(iii) Are accessible by well designed and constructed paths.
(d)A number of alternatives depending on personal preferences and whether one is eating or not are available.
(e)The amenity of the area for all citizens would not be enhanced by replacing the concrete round tables with the rectangular tables (or ‘social tables’) and appropriate paths or paving. The loss of a natural environment would be, on my view, a real detriment, especially to young children seeking to enjoy the swings and surrounds.
(f)Although navigating grassed areas does provide some challenges (and may for some less physically strong persons confined to wheelchairs may be an insurmountable traverse), the alternatives are all available. In this way all persons can enjoy the delightful amenity of this area, although from different perspectives.
(g)The Council has shown, through the support of the ‘social table’ design and the facilities offered on the Scarness foreshore, and acute awareness of these important issues. Through its AAT, an with anticipated additional funding, further improvements within the city can reasonably be expected.
From the totality of the evidence, I am satisfied that the access to the whole of this area is reasonably provided by the Council in a way which does not constitute indirect discrimination.
Scarness foreshore – toilet blocks
I have formed the view that the requirement or condition which I have framed at paragraph 22 of these reasons, is unreasonable and that some persons are so affected by the requirement or condition that they are unable to comply with it. My reasons for so finding are:-
(a)I am satisfied that some persons with disabilities have personal hygiene difficulties and some are required to undertake a careful toileting regime (because of aids such as catheters and colostomy bags) which reasonably requires use of wash basins out of public view and in private.
(b)Because of the unpredictibility of when “accidents” may happen, persons should not be dissuaded from enjoying this amenity because of a fear of being unable to clean themselves quickly, privately and in an aseptic environment.
(c)Suggested alternatives such as carrying “Wet Ones”, sponges, clean clothes and paper towels are inadequate when the need to react immediately may be reasonably required.
(d)On balance, the need to discourage those with criminal intent or to provide external facilities for young children or to “wash dishes”, is offset by the community expectation that persons with a disability should be entitled to complete a toileting regime in private.
(e)The lack of any requirement under the Australian Standards or the BCA to provide an internal wash basin (see AS 1428.1 at 10.2.1(b)) does not, in my view, inhibit the need to exceed the minimum facility standard for a disabled toilet in the way proposed by the Applicant.
Subject to the consideration of ‘unjustifiable hardship’ which follows, I am satisfied on the totality of the evidence that the use of the facility is only available on terms and conditions which are unreasonable and constitute indirect discrimination.
Unjustifiable hardship
Having found the failure to install an internal hand basin constitutes unlawful discrimination, the Council relies on the defence afforded by s.23(2)(b) of the DDA, namely any alteration or rectification would impose unjustifiable hardship.
The circumstances to be taken into account in determining whether ‘unjustifiable hardship’ exists are outlined in s.11 of the DDA. Implicit in the concept of unjustifiable hardship is that it “connotes much more than just hardship” (see Finney v Hills Grammar School (1999) HREOCA 14 at 52; affirmed on review in Hills Grammer School v HREOC & Ors (2000) 100 FCR 306; Francey & Anor v Hilton Hotels (1997) EOC 92-903 at 77,453).
The financial circumstances of the Council are important, but must be considered in the context of the DDA’s objects – the financial burden may be justified (Francey & Anor v Hilton Hotels (1997) EOC 92-903 at 77,453).
It is clear that the Australian Standards or BCA do not proscribe the necessity for internal hand basins. The accessible cubicle conforms with all such standards. I do not regard the fact that the premises comply with the standards precludes me from finding either unlawful discrimination or that there is no ‘unjustifiable hardship’.
The evidence in my view overwhelmingly supports a finding that the benefits for those persons with a combination of mobility and toileting regime challenges (of whom Ms SK, Ms SR, Ms KH, Mr McConochie and even the vastly experienced and robust Mr Hiffernan are examples) are real and important. Without the alterations, many persons may lose the benefit of this engaging in the foreshore experience and amenity. This, of course, not only extends to local residents but because of the renown attractions of this area to tourists, it also extends to visitors to the area (see Scott v Telstra (1995) EOC 92-117 per Wilson P at 78,401).
It is hard to imagine a more embarrassing or undignified experience then to be forced to endure a stream of Wet Ones, wash cloths and the like from the outside running water basin to the privacy of the accessible toilet if one had an ‘accident’. Those self-catheterising are also entitled to complete the usual regime with the basic support an internal wash basin would provide to them.
Principally the Council asserts its financial position is poor – such that there is no ‘spare’ money available to meet the requirements to install internal hand basins at the accessible toilets identified in Council reports at Scarness, Organ Park, River Heads Progress Park, Freedom Park, Ansons Road and Apex Park. Although I only viewed 2 of these facilities, I accept the evidence that these other sites suffer from the same structural impediments.
The costs of alterations were estimated in the evidence of the Respondent’s witnesses as between $43,194 (McCullough/Rind) and $75,250 (Rasmussen).
Whilst I accept the Council has many priorities, and is proactive in acquiring funding to meet and accommodate the needs of those who live within the local authority area, I am satisfied even at a cost of $75,250 this Council can make the necessary adjustments to its budget to remedy the unlawful discrimination found by me.
I am therefore not satisfied that the Council has made out ‘unjustifiable hardship’.
Order
I note that the Applicant does not seek compensation.
I will order that the Hervey Bay City Council shall, within 9 months, construct and install internal hand basins in the accessible toilets at Scarness, Organ Park, River Heads Progress Park, Freedom Park, Ansons Road and Apex Park.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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