D & Commissioner for Social Housing & Ors (Discrimination) - [2010] ACAT 62

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

D & COMMISSIONER FOR SOCIAL HOUSING & ORS (Discrimination) [2010] ACAT 62

DT 10/01
Catchwords: DISCRIMINATION – disability discrimination – difference between direct discrimination and indirect discrimination – suitability of public housing for a person with disability – question of reliability of the applicant’s evidence – inadequacy of the house allocated to the applicant for her needs - respondent’s representation creating the belief that the applicant had no other choice but to take the offered premises – unfavourable treatment – test of unfavourableness for
section 8(1)(a) of the Discrimination Act 1992 – meaning of ‘disadvantage’ in section 8(1)(b) of the Discrimination Act – ‘condition’ or ‘requirement’ under section 8(1)(b) of the Discrimination Act – the reasonableness test for indirect discrimination

List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss.38 and 39
Disability Discrimination Act 1992 (Cth), ss.5 and 45.

Discrimination Act 1992, ss.4A, 8, 20, 21, 27 and 30
Equal Opportunity Act 1984 (Vic), s.17
Equal Opportunity Act 1984 (SA), ss.6(3) and 66
Housing Assistance Act 2007, ss.101 and 103
Housing Assistance Act 1987 (repealed), s.12
Human Rights Commission Act 2005
Sex Discrimination Act 1992 (Cth), s.5
Public Rental Housing Assistance Program (No 2) 2006, made under the Housing Assistance Act 2007
Public Rental Housing Assistance Program (No 1) 2008, made under the Housing Assistance Act 1987

Case law:ACT Health & Community Care Service and Vella [1998] ACTAAT 286
Catholic Education Office v Clarke [2004] FCAFC 197
Couper v ACT Housing 2004 ACTDT 4
Cowell v A School unreported, Human Rights & Equal Opportunity Commission, 10 October 2000
De Domenico v Marshall [1999] FCA 1305
Edgley v Federal Capital Press of Australia Pty Ltd

[2001] FCA 379; (2001) 108 FCR 1
Garity v Commonwealth Bank of Australia [1999] HREOC 2
Mangan v Melbourne Cricket Club [2006] VCAT 73
Purvis v NSW Department of Education & Training
[2003] HCA 62
Re IF and Commissioner for Housing (DT 01/398)
[If v ACT Commissioner for Housing [2005] ACTSC 80]
Re: Prezzi and Discrimination Commissioner

[1996] ACTAAT 132
Richardson v ACT Health & Community Care Service
[2000] FCA 654
Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349
Woodbury and Australian Capital Territory [2007] ACTDT 4
Worrall v ACT Health [2006] ACTDT 1

Tribunal: A. Anforth, Senior Member

Date of Orders: 24 September 2010
Date of Reasons for Decision: 1 October 2010

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 10/01

BETWEEN:

D
Applicant

AND:

COMMISSIONER FOR SOCIAL HOUSING
First Respondent
ACT HEALTH
Second Respondent

LYN BROCKLEHURST

Third Respondent

TRIBUNAL: Mr A. Anforth, Senior Member

DATE: 24 September 2010

INTERIM DECISION

The actions of the Second and Third Respondent in recommending and supervising the installation of the ramps to the doors without any flat landing adjacent to the doors (inside and outside) was an act of indirect discrimination within the meaning of section 8(1)(b) of the Discrimination Act 1992.
The matter is to be relisted by the Registrar on a date to be fixed for directions on the issue of further evidence on the question of:
(a)whether the First Respondent compelled the Applicant to vacate James Court and move to the house at Palmerston on or about 15 May 2006; or
(b)whether the Applicant was given a choice of waiting until the modifications were complete before moving to Palmerston and
(c)the quantum of damages.

………………………………..
Mr A. Anforth

Senior Member

REASONS FOR DECISION

The Parties

In May 2006 the First Respondent (the Commissioner) was responsible for a social housing program in the ACT under the Housing Assistance Act1987 known as the Public Rental Housing Assistance Program (No2) 2005 (PRHAP). At all material times the Applicant was a tenant of the Commissioner under that program. The Third Respondent was, at the time, an occupational therapist employed by the Second Respondent which is an agency of the ACT government.
It is not contested that at all material times the Applicant had and continues to have, a severe bilateral hip condition that substantially impairs her mobility. She requires the use of a wheeled walking frame for ambulation. She is in receipt of the Disability Support Pension and otherwise qualifies for housing under the PRHAP.
In broad, the Applicant is aggrieved by what is alleged to be discriminatory conduct on the part of the Respondents towards her by reason of her disability in:
(a)the allocation by the First Respondent of unsuitable public housing in Palmerston in 15 May 2006;
(b)the untimely and inadequate modification of the premises carried out by the First Respondent between May and September 2006 to accommodate her disability;
(c)the content of the recommendations by the Third Respondent whose recommendations formed the basis for the unsatisfactory modifications;
(d)the application process that the First Respondent required the Applicant to undergo in and shortly after September 2006 in order to secure a transfer from the Palmerston property.
Chronology of the Applicant’s relevant tenancy history
The Applicant filed a Chronology of her historical dealings with the Commissioner which appears to date from 1997. In the Chronology she says
(a)in November 1997 she was allocated unsuitable 3^rd floor accommodation in Belconnen by the Commissioner;
(b)In April 1998 she took a private tenancy because the Commissioner declined to find her suitable accommodation. She was apparently the victim of an assault in the Belconnen premises;
(c)in May 2000 she was offered a one bedroom aged person’s unit in Ainslie by the Commissioner. This accommodation was described by the Applicant as a:
‘... ghetto dumping ground for uneducated, violent and dysfunctional men and women where I was tormented day and night by a number of these tenants...my property damaged, I was called a prostitute, men tried peering into my flat..’.
The Applicant says that she reported the matter to the Human Rights Commissioner (HRC) who promised, but failed to deliver, a garden flat. The Applicant described the HRC’s actions as a ‘lie’. The Commissioner is alleged to have also refused to do anything;
(d)in August 2001 the Applicant vacated the Ainslie property and took private rental. She remained there until January 2003 when she was served with a notice to vacate that property;
(e)in March 2003 the Applicant accepted a tenancy with the Commissioner in Downer which was apparently physically suitable. The Applicant alleged she encountered escalating abuse from neighbours;
(f)in February 2006 the Downer tenancy was terminated by the Tribunal for unacceptable behaviour by the Applicant towards her neighbours. This decision was appealed to the Supreme Court;
(g)as part of a compromise of the Supreme Court proceedings, the Commissioner moved the Applicant into an apartment in James Court, Civic as an interim measure whilst another suitable public tenancy was found for the Applicant;
(h)in April 2006 the Commissioner offered the Applicant houses in Melba and McKellar which she declined for various reasons;
(i)on 15 May 2006 the Applicant was offered by the Commissioner, and accepted, the tenancy at Palmerston. The Applicant contends that her acceptance was not genuine because she was threatened with the loss of the interim accommodation at James Court and removal from the priority transfer list if she did not accept the Palmerston offer. The Applicant described the actions of the Commissioner’s staff as ‘bullying;’ and ‘dishonest’. She described a building modification assessment undertaken by Ms Brocklehurst as ‘incompetent in breach of professional standards of care’;
(j)in November 2008 the Applicant was transferred from Palmerston to her present public rental premises at Latham.
The Complaint
On 14 August 2008 the Applicant lodged a complaint with the Human Right Commissioner (HRC) under the Human Rights Commission Act 2005 (the HRC Act) against the First Respondent alleging discrimination on the basis of disability.
The complaint as lodged with the HRC centered on the transfer of the Applicant by the Commissioner from the public tenancy at Downer to the public tenancy in Palmerston on 15 May 2006. The complaint lodged with the HRC is somewhat disjointed, making it difficult to ascertain the precise grounds of the complaint. It appears to include a complaint against the HRC for inefficient and faulty decision making in respect of the previous complaint by the Applicant.
There is a considerable volume of correspondence of various forms emanating from the Applicant to the Commissioner and to the HRC in relation to the complaint.. Much of this is repetitious. Some is probably defamatory. The Tribunal has read this material and was also taken to some of it in the hearing that occurred on 10 August 2010. The Tribunal will confine itself to the correspondence that is relevant, probative and credible.
The specific content of the Applicant’s complaint to the HRC seems to be that:
(a)the premises at Palmerston were unsuitable for her needs in that:
(i)the terrain had too much slope;
(ii)the necessary and promised modifications for her disability had not been carried out when she was forced to take occupancy by the Commissioner on or about 15 May 2006;
(iii)thereafter there was an unacceptable delay of some 4 months in the completion of the modifications;
(iv)when the modifications were finally completed they were inadequate for her needs;
(v)the Commissioner failed to carry out the modifications as recommended by Mr McGill in July 2007;
(b)in September 2006 the Commissioner ignored her informal requests for a further transfer from the Palmerston premises and required her to make a formal application for priority transfer under the PRHAP. The Applicant says that this should not have been required because the Commissioner was fully aware of her circumstances(c) the Commissioner failed to protect her from the bullying and violence of her neighbours at Palmerston; the Commissioner’s own staff are ‘incompetent’ and have engaged in ‘discrimination, bullying, dishonesty, re-victimisation’ and have ‘ignored’ her medical condition; and
(c)as a consequence of all the above, she suffered physical and emotional distress of various forms; interference with medical treatment and interference with her legal studies at university..
The complaint of being forced to take the Palmerston property prior to the modifications does not seem to feature explicitly in the original complaint to the HRC although it is referred to in associated correspondence and was considered by the HRC.

The HRC’s investigations

The HRC conducted an investigation and was unable to bring the parties to any agreement. On 9 November 2009 the HRC determined to close the complaint under section 78(2)(e) of the HRC Act. On 12 January 2010 the HRC referred the complaint to the Tribunal under section 53A of the HRC Act.
In her letter to the Applicant of 9 November 2009, the HRC found no evidence of victimisation of the Applicant by the Commissioner’s staff. The HRC noted the duty on the Commissioner to undertake ‘reasonable adjustment’ when providing public housing for people with disability (Couper v ACT Housing 2004 ACTDT 4) and expressed concerns about the delay by the Commissioner in implementing the modifications recommended by Mr McGill in July 2007. The HRC found no substance in the Applicant’s complaint that she had been required to formally apply for a priority transfer from Palmerston.
The definition of the ambit of the complaint before the Tribunal
The matter was listed for directions before the Tribunal on 25 January 2010. The Applicant appeared in person represented by Ms Gonzales. Mr Kettle, solicitor, appeared for the Respondents. The Tribunal raised with the parties the ambit of the issues that constituted the Applicant’s complaint that fell within the Tribunal’s jurisdiction. The Tribunal distilled from that discussion that the ambit of the complaint was as follows:
(a)that the assessment of the suitability of the premises at Palmerston for occupation by the Applicant carried out by Ms Brocklehurst in her capacity as an occupational therapist employed by ACT Health was not a genuine attempt to assess the suitability of the premises. The report by Ms Brocklehurst was knowingly unfavourable to the Applicant’s needs arising from her disability;
(b)that the premises at Palmerston were unsuitable to the Applicant’s needs because of her disability. The unsuitability resided in the slope of the block, the slope of the street, the steps at each entrance and other things to be particularised;
(c)that the Commissioner treated the Applicant unfavourably in forcing her to undergo a review for transfer process from the Palmerston premises when the Commissioner had no genuine need for that process having regard to the Applicant’s known disabilities and the history of the dealings between the parties;
(d)other matters to be particularised.
Although it was not explicitly stated in the direction of 25 January 2010, it was implicit that the Applicant complained of being forced to take the Palmerston premises in default of which she would be removed from the transfer waiting list under what is known as the ‘three offer’ rule. It was also understood that the Applicant complained of being forced to move to the Palmerston premises before the modifications were done.
The Tribunal was satisfied that the complaints embodied in the above were each fairly within the ambit of the complaint made to the HRC and thereafter referred to the Tribunal even though they did not exhaust the range of matters raised before the HRC (De Domenico v Marshall [1999] FCA 1305). Directions were made that the matter was to proceed to hearing in these terms.
Orders were made joining ACT Health as the employer of Ms Brocklehurst as the Second Respondent and Ms Brocklehurst as the Third Respondent.
At the hearing on 10 August 2010 it emerged that Ms Brocklehurst did not become involved in the Applicant’s case until after the Applicant was in occupation of the Palmerston house. She had no role in determining whether the premises were suitable for the Applicant. Her role was limited to assessing and supervising the modifications required to the premises. For this reason, at the hearing the Applicant limited her case relating to Ms Brocklehurst to the inadequacy of the modifications recommended by her. This order WHICH ORDER??was made in the event that any issue of vicarious liability of the employed arose.
At the hearing, Mr Thompson for the Applicant further modified the nature of the case against Ms Brocklehurst when he advised that the Applicant no longer pressed the allegation that her assessment of the required modifications was ‘knowingly’ unfavourable and was not a ‘genuine’ attempt by Ms Brocklehurst. Rather, the case was put on the footing that Ms Brocklehurst’s assessment and the consequent modifications were inadequate. The inference was that the inadequacy was the outcome of either lack of competence or lack of care by Ms Brocklehurst.
The procedural issues leading to the hearing
At the directions hearing procedural orders were made to set dates for the filing of evidence and Statements of Facts and Contentions by the parties with indications of the degree of specificity required on the Applicant’s part. These dates were extended on several occasions to facilitate delays by the parties.
On 7 July 2010 the Applicant applied for an order under section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) for a hearing in private and for the suppression of details that might identify her in any hearing or decision of the Tribunal. She put her application on the ground that she had been the victim of serial neighbour violence in each tenancy and that the Canberra Times had previously published untruths about her.
This application was heard on 29 July 2010. The Applicant was represented by Ms Gonzales. The Respondents were represented by Dr Jarvis of counsel. Dr Jarvis opposed a closed hearing but consented to an order suppressing the Applicant’s name and other identifying material. The Tribunal noted and was influenced by the attitude of the parties to the application, but ultimately, the Tribunal is not bound to give effect to any agreement between the parties and is required to decide the matter for itself.
Sections 38 and 39 of the ACAT Act provide:
38 Hearings usually in Public
(1) The hearing of an application by the tribunal must be in public.

(2) However, this section does not apply to a hearing, or part of a hearing, if the tribunal makes an order under section 39 in relation to the hearing, or part.

39 Hearings in private or partly in private
(1) This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.
(2) The tribunal may, by order, do 1 or more of the following:

(a)direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;
(b)give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.

(3) The tribunal may make an order under subsection (2) on application by a party or on its own initiative.

...
(5) For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private—
(a)to protect morals, public order or national security in a democratic society; or
(b)because the interest of the private lives of the parties require the privacy; or
(c)to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.

The public hearing rule is one of considerable public importance for the public’s confidence in the Tribunal’s process and for courts and tribunals generally. It is not to be lightly set aside. There is nothing in the grounds advanced by the Applicant that required a closed hearing. The Applicant’s concerns were readily accommodated by an order suppressing her identification in any reporting of the proceedings. For this reason the Tribunal made an order that no person shall publish the name or address of the Applicant and she is to be referred to as D.
Prior to the hearing on 10 August 2010, the following documents were filed by the parties:
(a)the Applicant’s Statement of Facts and Contentions with various annexures, filed on 9 March 2010;
(b)the Respondent’s Statement of Facts and Contentions with the witness statements of Ms Brocklehurst (exh R1) and Mr Kelly (exh R9), filed on 28 April 2010;
(c)the Applicant’s reply to the Respondent’s Statement of Facts and Contentions filed on 21 June 2010;
(d)a statement from Ivette Gonzalez (exh A2) filed 22 July 2010;
(e)a statement from James McGill (exh A3) filed 22 July 2010;
(f)the Applicant’s Comments on the Respondent’s Statement of Facts and Contentions;
(g)an Outline of the Respondent’s Arguments filed 22 July 2010;
(h)a statement from the Applicant (exh A1) filed on 29 July 2010;
(i)a DVD from the Applicant of the Palmerston house;
(j)the Applicant’s Outline of Arguments filed 6 August 2010 that are in the nature of a reply to the Outline previously filed by the Respondent;
(k)the Respondent’s List of Authorities filed 6 August 2010;
(l)a Joint Tender Bundle (exh R1) filed 6 August 2010 that included a comprehensive collation of documents pertaining to the complaint before the HRC.

At the hearing, the following additional documents were received into evidence:
(a)copies of notices from the Commissioner to the Applicant relating to complaints from neighbours (exh R2 and 3);
(b)ACT Housing Facts Sheet- Early Allocation (exh 5);
(c)ACT Housing and Community Services- Business Rule- Disabled Modifications (exh R6);
(d)a letter of 29 March 2006 from the Director of Housing to the Welfare Rights and Legal Centre recording the terms upon which the Applicant was to receive interim accommodation at James Court from 30 March 2006;
(e)a reservation with Medina Executive James Court reserving an apartment for the Applicant from 30 March 2006 for an “estimated 5-6 weeks.”
Statements of Facts and Contentions and outlines of arguments filed by parties are relevant in so far as they assist to define the factual and legal issues for hearing; but the factual assertions contained in them are not evidence of the facts. The facts must be established by the adduction of evidence in the usual way.
The Applicant’s Statement of Facts and Contentions traversed the matters set out below.
The assessment of the required modifications by the Third Respondent in her report of 21 June 2006 was said to be inadequate because it failed to note and report that the gradient of the block made it unsuitable and that no modifications could remedy this problem. More specifically, the Third Respondent should have found the following features to be unsuitable and non-remediable:
·     the steps at the entrances;
·     the inaccessible letter box;
·     the sunken shower;
·     the low set toilet;
·     the lack of handrails in the shower and toilet.
Each of the above modifications, except for the ramps to the entrances to replace the steps, were satisfactorily carried out within a few weeks of the Third Respondent’s report of 21 June 2006. The ramps were inserted, inside and outside the house, at the two entrances in September 2006. The Applicant complains that the design and construction of the ramps without flat landings immediately adjacent to the doors was inadequate and dangerous. The ramps on both the front and rear entrances were constructed in such a way that the sloping part of the ramp extended the whole distance to the door itself. The Applicant was required to stand on the sloping ramp to open and close the door after entering or leaving the house. Standing on the sloping ramp was a problem for her. She needed to hold onto the wheeled walking frame both for support and to prevent the walking frame from running down the slope of the ramp while she opened or closed the door. When the Applicant stepped into the house with her walker, she had to step onto a downwards sloping short ramp or wedge.

The Applicant complained that she had been coerced by the First Respondent’s staff into taking the Palmerston tenancy on the threat that the James Court interim accommodation was going to be terminated; that the Palmerston house was her third offer and that if she refused the offer, she would be removed from the priority transfer waiting list.
The Applicant said that it was unreasonable to expect her to complete an application for transfer from the Palmerston property and for that application to be assessed by the Multidisciplinary Review Panel (MDRP), when the Commissioner was fully apprised of her circumstances. The MDRP is part of the Commissioner’s internal processes for assessing transfers.
The Respondent’s Statement of Facts and Contentions set out the legislative basis for the Commissioner’s activities.
Among other things, the Respondent’s Statement of Facts and Contentions set out the hierarchical priority housing allocation system under the PRHAP and the process for obtaining transfers. It described the so-called ‘three offer’ rule under which a tenant’s application for transfer will lapse upon the tenant declining a third suitable transfer. In the present case, the First Respondent admitted that the Applicant was informed by an officer of the First Respondent that the Palmerston offer was her third offer, and by inference her last offer.
The First Respondent addressed the criteria by which the size of the house (in terms of the number of bedrooms) is assessed and pointed out that the Applicant is a single person who would normally only be entitled to a one bedroom home. The Applicant requested a three bedroom home on the basis that she wanted a dedicated study for her law studies and a third bedroom in case she needed a live in carer (for which there was neither a history nor evidence).
The First Respondent noted that the Applicant moved into the property at Palmerston on 15 May 2006 and that Ms Brocklehurst carried out her assessment in June 2006.
The Respondent noted that relations between the Applicant and Ms Brocklehurst quickly broke down with the Applicant referring to Ms Brocklehurst as ‘incompetent’ and ‘stupid’ and requesting the Commissioner to remove Ms Brocklehurst from the Applicant’s case.
The Respondent recorded that within an unspecified period the Applicant was in conflict with her neighbours at Palmerston referring to them as ‘monkeys’ and ‘savages’. She even erected a sign outside her house directed at a neighbour that read ‘Go home you Macedonian bitch’. .
The Applicant was transferred from the Palmerston property to the present Latham property in November 2008 after the First Respondent purchased the Latham property specifically for the Applicant and carried out the necessary modifications.
The First Respondent contended that:
(a)there could be no discrimination in allocating the Applicant a house in circumstances of her being evicted from her existing tenancy;
(b)it was reasonable to allocate a premises that had yet to be modified having regard to the urgency of the Applicant’s circumstances, the high demand and limited availability of public housing, the difficulty in finding an available house that immediately met all the Applicant’s needs, and the consistent administration of the ‘3 offer’ rule;
(c)even if the offer of the Palmerston property did involve some discriminatory content, section 27 of the Discrimination Act 1992 applied to the effect that the prima facie discriminatory action was not unlawful;
(d)the Third Respondent was not asked to, and did not purport, to carry out an assessment of the suitability of the Palmerston property prior to the Applicant being offered the property. Her brief was limited to making recommendations on the modifications that were required after the Applicant was already in the Palmerston property.
The Applicant provided a 43 page response to the Respondent’s Statement of Facts and Contentions that was difficult to follow and that was replete with wide ranging allegations against various people. In the document, the Applicant presents herself as the victim of various social injustices.
The Respondents filed a joint Outline of Arguments which contained their submissions on the law. The Tribunal has had regard to this in coming to its own findings on the applicable law.
The credibility of the Applicant’s evidence
The Respondent made submissions about the Applicant’s credibility and demeanor which must be considered by the Tribunal.
The Applicant’s correspondence and documents filed in these proceedings are characterised by the frequent use of rhetoric and extreme language with:
(a)    broad based allegations against most of the people who have had some involvement in her grievances;
(b)    allegations of incompetence and dishonesty directed at various of these people;
(c)    allegations of base conduct directed at her neighbours at each of her tenancies including the tenancy at Palmerston;
(d)    allegations of victimisation by the Commissioner’s staff and by various neighbours;
(e)    frequent use of language that can only be described as crude and offensive. A previous and differently constituted Tribunal in 2006 recorded a range of aggressive and crudely offensive language used by the Applicant towards neighbours related to her eviction from a previous public tenancy. The use of this language was put to the Applicant during this hearing and was adopted by her.
This creates a problem for the Applicant. Her use of extreme language and rhetoric makes it difficult for the Tribunal to sift her evidence to ascertain what is fact on the one hand, and what is hyperbole or an expression of anger, on the other. As one example, at the hearing the Applicant sought to rely upon the expert testimony of Mr James McGill (occupational therapist) to demonstrate the inadequacy of the work of the Third Respondent. However, in correspondence with the Commissioner and the HRC, the Applicant denigrated Mr McGill as ‘negligent’, ‘stupid ’, ‘aggressive’, ‘incompetent’ and ‘dishonest’. When this was put to her at the hearing, she did not seem to appreciate the incongruity of her actions. She dismissed the inconsistency between her abuse of Mr McGill and her reliance on his work on the grounds that she was stressed when she wrote to the Commissioner and the HRC.
The Applicant’s 43 page response to the Respondent’s Statement of Facts and Contentions is particularly concerning. By way of example only, she describes her case officer as being guilty of ‘the most pernicious form of lying’; she refers to ‘an ugly attitude, culture in Housing of contempt, bullying, dishonesty towards applicants (e)specially applicants with disabilities...’; she refers to the First Respondent as ‘re-victimising me, attempting to portray me in a negative, pejorative way...”. The assertions are not connected to any factual material.
In this document, the Applicant articulated her objection to women with children escaping violence being afforded priority over her for housing transfer; she referred to other government tenants in a derogatory manner and repeated negative sexual innuendoes attributed to male tenants of the Commissioner which she asserted were directed at her. The rhetoric is not relevant to the issues the Tribunal has to determine.
Part of the Tribunal’s role is to receive and assess evidence. That process necessarily involves assessment of the reliability of evidence and of the credibility of the person giving evidence. Tribunal members are required to assess the credibility of witnesses by reference to a range of factors including the manner and content of a witness’s evidence.
The writings of the Applicant create the strong impression that she is woman with many grievances who sees herself in the victim role. I find that she is prone to use exaggerated language. Her frequent and widespread use of abuse and hyperbole to describe other people and their actions is such that the Tribunal cannot accept her evidence on its face.
This finding does not mean that none of the Applicant’s complaints of discrimination have merit, but it does mean that the Tribunal is reticent to accept any assertion made by the Applicant unless it is uncontentious or there is some external corroboration for the proposition.

Assistance that the Applicant has had with her complaint

The Applicant has had the assistance of professional advocates, Ms Gonzales and her predecessor Mr Smith, from the ACT Disability, Aged & Carer Advocacy Service Inc (ADACAS) from 2003 and thereafter. The Tribunal found the correspondence and contribution of ADACAS to be helpful and relatively objective in its form and content. The Tribunal makes this comment notwithstanding the evidence given by Ms Gonzalez at the hearing that ADACAS’ role is not to be objective, but rather, to advocate to assist the client to obtain her desired outcome without regard for the advocate’s own view on the wisdom of the outcome sought or the horizontal equity considerations of other public tenants and neighbours.
The Applicant also had the benefit of representation by the Welfare Rights and Legal Centre after first moving into Palmerston in May 2006; and of Mr Thompson of counsel at the hearing who was briefed on a grant of legal aid in the last couple of working days prior to the hearing. The task for Mr Thompson of assimilating the bulk of correspondence was no small undertaking on his part. Notwithstanding this, Mr Thompson put the case for the Applicant in a professional and competent manner.

The Hearing

At the hearing on 10 August 2010 Mr Thompson appeared for the Applicant and Dr Jarvis appeared for the Respondents.
The evidence in chief of each witness was constituted by their statement filed in the proceedings. Witnesses were cross examined and re-examined.
By way of opening, Mr Thompson said that the Applicant had first sought a transfer from the Palmerston premises in September 2006 and that she was not transferred to the Latham property until November 2008. He pointed to this delay as one of the grounds of ‘unfavourable’ treatment relied upon by the Applicant. This ground was not one of those identified in the directions of 25 January 2010 to form part of issues for the hearing.
Mr Thompson said that the Commissioner’s officers were “not inhuman mindless robots, but people trying to do a job fairly, balancing competing claims for the scarce resources of housing in accordance with the relevant legislation and in accordance with...departmental policy and processes”.
This concession on behalf of the Applicant stood in stark contrast to the adjectives she had used previously to describe the same people. For that reason the Tribunal and Dr Jarvis asked Mr Thompson whether the Applicant abandoned her previous allegations of deliberate or intentional discrimination against her including the allegations contained in paragraph (a) of the issues defined on 25 January 2010, to which an affirmative reply was received.
Upon invitation to re-define the acts of discrimination relied upon, Mr Thompson said that the offending acts are to be found in the First Respondent’s failure to pay sufficient attention to the adequacy of the housing provided at Palmerston. He said that the Applicant no longer asserted that the report by Ms Brocklehurst was not a ‘genuine’ attempt by her to assess the modification needs of the house. Mr Thomson affirmed that the balance of paragraphs (b), (c) and (d) of the issues defined in the directions of 25 January 2010 set out at paragraph 12 above were maintained, including the issue of the timing of the move from James Court.
The Applicant gave evidence first. Her statement of evidence was a distillation of the chronology and the 43 page response previously filed in the proceedings. It contained the same kind of material in which described herself as ‘the innocent victim’ of ‘uneducated and untrained housing staff’ who ‘lacked empathy, respect and concern’ for her predicament in life; who failed to protect her from neighbour violence etc.
In the course of the Applicant’s evidence in chief the Tribunal watched the DVD provided by the Applicant. That DVD showed that the slope of the land across the front of the house (the lateral gradient) fell by the thickness of 1 brick across the width of the house. It showed that the lateral gradient of the block as a whole was noticeable but would generally be considered to be reasonably flat. The longitudinal gradient (from the house to the road) was more noticeable and could present a problem for the Applicant in navigating the drive way.
The DVD showed the ramps to the front and rear doors which are as described at paragraph 27 above. It was readily apparent to the Tribunal why this ramp construction would present the Applicant with difficulties and this observation was put to the parties at the time. The DVD also contained a demonstration of how a wheeled walker would run down the ramp if left unattended without its brake on. The Tribunal noted and commented that the existence of gravity had already been satisfactorily established by Newton and Einstein such that this demonstration showed only the obvious.
The Applicant said that she moved into the Palmerston property in May 2006. Most of the renovations were completed within about a month, but the ramps were not completed until September 2006 and then, the ramps were inadequate. She applied for a transfer from Palmerston in September 2006 after the ramps were constructed. The transfer did not occur until November 2008. The Applicant re-iterated her complaint about the ramps and the delay in effecting her transfer from the Palmerston property. The latter issue did not form part of the complaint referred to the Tribunal by the HRC.
During cross examination the Applicant:
(a)admitted to her use of the language attributed to her by the previous Tribunal;
(b)affirmed her description of Mr McGill (her own expert witness) as being ‘negligent’, ‘stupid’, ‘incompetent’, ‘arrogant’, ‘aggressive’ and ‘indifferent’;
(c)admitted to putting racist signs outside the Palmerston house;
(d)admitted using derogatory epithets for her neighbours at Palmerston.
At one point the Applicant wrote that Mr McGill “has neither the insight nor honesty to admit his mistake showing a callous disregard for the stress and pain he caused me, in breach of his duty to care to me, his client”. This statement by the Applicant appears to be at odds with Mr McGill’s duty to the Tribunal as an independent expert and appears to contain an assumption by the Applicant that Mr McGill has a duty to agree with her and write only that which is favourable to her.
It was put to the Applicant that she had not been compelled to accept Palmerston and thereby vacate James Court. The Applicant was adamant to the contrary. The Respondent’s own Statement of Facts and Contentions admits that the Commissioner’s officer told the Applicant enroute to view the Palmerston property that it was her last offer. There is correspondence to that effect in evidence. The Tribunal is satisfied that whatever the motive of the Commissioner’s staff, the Applicant was caused to believe that she had no option under the ‘3 offer’ rule but to accept the Palmerston property.
It was put to the Applicant that she was not told that she must vacate James Court immediately and occupy Palmerston before the renovations were complete. The Applicant said that an officer of the Commissioner, Ms McBride, told her that the James Court reservation had ended and would not be renewed so that she was required to move immediately. This is generally consistent with the documented reservation at James Court. It was put by Dr Jarvis that there was no impediment to renewing the reservation and that the First Respondent would have done so had the Applicant not elected to move immediately. The Applicant maintained that she was not given a choice.
More generally, the Applicant demonstrated a lack of interest in answering the questions put to her in cross examination and a greater interest in making her own statements.
Ms Gonzales gave evidence in chief in the terms of her statement filed in the proceedings. She has been the Applicant’s advocate since June 2007 prior to which the advocate from ADACAS was Mr Smith. Her evidence was almost wholly directed to the events after the Applicant was in the Palmerston property and concerned the Applicant’s efforts to obtain a transfer.
In her statement Ms Gonzales said, among other things, that she did not understand why it was necessary for the Applicant to be required to complete an application for transfer from the Palmerston property when the Commissioner's senior staff were aware of the issues. In cross examination Ms Gonzales admitted to knowing little of the terms of the PRHAP or its procedural requirements. She was unaware of the statutory requirements for an application form to be lodged.
In re-examination Ms Gonzales was asked whether she was aware that the Applicant was considered by the Respondent to be a difficult person to deal with, to which she answered ‘yes’.
Mr James McGill (occupational therapist) gave evidence for the Applicant. His statement annexed his report of 1 July 2007 which contained his observations of the Applicant’s physical capacities, the features of the Palmerston house and its deficiencies in terms of the Applicant’s capacities. Mr McGill’s findings were that the lateral and longitudinal gradients of the block were more than the Applicant could cope with and that the ramps at both doors were difficult for the Applicant to navigate. He recommended that she be transferred.

Mr McGill gave evidence on the Australian Standards. He was unable to point to any standard that did not contain a flat landing immediately adjacent to a door.
Mr Shaun Kelly gave evidence for the First Respondent. His evidence in chief was in terms of his statement filed in the matter. He was the senior manager of Housing for the First Respondent with responsibility for the Applicant.
His evidence in chief described the terms of the PRHAP and various categories of waiting list. He described the ‘three offer’ rule referred to above and admitted that enroute to the Palmerston property, the Applicant was informed by the Commissioner’s officer that the Palmerston offer was the third offer to be made.
Mr Kelly described the process by which the Applicant was elevated to the ‘high needs’ and then to the ‘priority’ waiting lists. On the ‘priority’ list housing was allocated on a needs basis rather than by reference to the date of entry on that list. He accepted that the Applicant was viewed as a difficult client in the Commissioner’s office; even a ‘pest’.
Mr Kelly appended correspondence from the Applicant which he said showed her propensity to emotional and exaggerated language.
He testified to the budgetary constraints on the Commissioner and the need to prioritise expenditures on repairs and modifications.
Ms Brocklehurst gave evidence in chief in terms of her statement filed in the proceedings. She said that she first became involved in May 2006 after the Applicant was already in possession of the Palmerston house. She understood her instructions from her supervisor to be limited to assessing and supervising the necessary modifications. She prepared a report dated 21 June 2006 which was annexed to her statement of evidence.
Ms Brocklehurst said that she was the person responsible for determining the final dimensions of the ramps to the front and back doors. She explained that the decision to abandon the flat landing part of the ramp immediately adjacent to the doors was because the gradient of the ramps was otherwise within Australian Standards.
The Tribunal put to Ms Brocklehurst that the absence of a flat landing inside and outside the house, at both the front and back doors, caused an obvious problem for someone with limited mobility, pushing a wheeled walker. Ms Brocklehurst said that the landing at the exterior of the front door was removed because its presence would require further modifications to the gradient of the footpath running across the front of the house. When asked why she could not have recommended a ramp from this footpath up to the flat landing, she simply said that it would be too difficult. The Tribunal found this to be an unconvincing explanation.
The Public Rental Housing Assistance Program (No2) 2006 (PRHAP)
The PRHAP (No 2) 2005 was in force from December 2005 until 1 June 2006 when it was repealed and replaced with PRHAP (No 1) 2006 which was repealed on 1 July 2006 and replaced with PRHAP (No 2) 2006. For present purposes there was no material change in the program. Each of the programs was made pursuant to a power vested in the Commissioner by section 12 Housing Assistance Act 1987 which was repealed and replaced with the Housing Assistance Act 2007 on 10 November 2007.
Section 101 of the Housing Assistance Act 2007 preserved all rights and liabilities arising under the 1987 Act and its program; and section 103 preserved the operation of the PRHAP (No 2) 2006 program until it was repealed by the Public Rental Housing Assistance Program (No1) 2008.
Clause 13(8) PRHAP (No2) 2005 and each of the subsequent PRHAPs, provided that if an applicant refused an offer of housing then the Commissioner may remove their name from the waiting list. Mr Kelly gave evidence that the Commissioner in fact allowed two refusals and that withdrawal from the waiting list occurred only on the third refusal. Thus the ‘three offer’ rule was in fact a relaxation of the stringencies of clause 13(8).
In September 2006 the Applicant’s right to seek a transfer from the Palmerston premises was regulated by clauses 8, 23 and 31 of PRHAP (No2) 2006 which required an application from the Applicant to the Commissioner on the approved form providing such information as the Commissioner needed to assess the application.
Mr Kelly gave evidence of the assessment process and explained the role of the Multidisciplinary Assessment Committee. Apart from the requirements of the legislation it is trite that any administrative process of the kind described cannot operate on word of mouth and would require a written application with supporting evidence.
Findings of material fact
The Tribunal has come to the findings of fact that follow.
(a)The Commissioner’s staff created the belief in the Applicant that she had no choice but to take the offered premises at Palmerston under the three offer rule.
(b)The Applicant insists that she was told by Ms McBride that she must vacate James Court immediately and move to Palmerston. The First Respondent denied this assertion but Ms McBride was not called to give evidence. The Tribunal has considerable reservations on this point, particularly given the findings on the Applicant’s credibility, and the issue is one that assumes considerable importance in this case. The Tribunal is unable to come to a finding on the point and will need to hear further evidence, including from Ms McBride.
(c)At the point of taking occupation at Palmerston in May 2006 the premises were not modified and were not suitable for the Applicant by reason of the factors identified at paragraph 26 above.
(d)All the modifications, except for the ramps, were satisfactorily completed within a few weeks of the report of Ms Brocklehurst of 21 June 2006.
(e)The ramps were completed in September 2006.
(f)Irrespective of whether the ramps complied with any particular Australian Standard, the ramps were patently inadequate for the Applicant’s use. This inadequacy was readily apparent to any observer and was described by Mr McGill.
(g)The Applicant applied for a transfer in September 2006 and the Commissioner required that the Applicant comply with the standard transfer procedures that applied to all the Commissioner’s tenants.
(h)The delay between the application for transfer in September 2006 and the final transfer in November 2008 is in part accounted for by the absence of any suitable modified premises. The Commissioner undertook a spot purchase of new premises for the Applicant and carried out the modifications. This particular issue does not form part of the referred complaint.
(i)The Commissioner had no role in protecting the Applicant from the alleged violence of her neighbours unless the neighbours were also tenants of the Commissioner. To the extent that it is relevant, the Tribunal is satisfied that the Applicant herself was probably the primary cause of the conflict with the neighbours at Palmerston.
(j)Ms Brocklehurst’s role was limited to the assessment and supervision of the modifications. Her professed satisfaction with the ramps installed is difficult to understand and the Tribunal is of the view that it reflected a fatigue on her part in dealing with the Applicant. Ms Brocklehurst’s involvement in the case finished shortly after the ramps were installed due to the Applicant’s request that she be removed from the case. Any remedial action with the ramps after this time was not her responsibility; although it remained the responsibility of the First Respondent.
The Legislation
Section 8 Discrimination Act 1991 provides:

(1) For this Act, a person discriminates against another person if—
(a) the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or
(b) the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.

(2) Subsection (1)(b) does not apply to a condition or requirement that is reasonable in the circumstances.

(3) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a) the nature and extent of the resultant disadvantage; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.

Section 20 of the Act provides:
(1)It is unlawful for a person (the provider ) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.

Section 21 provides:

(1) It is unlawful for a person (whether as principal or agent) to discriminate against another person—
(a)by refusing the other person's application for accommodation; or
(b) in the terms or conditions on which accommodation is offered to the other person; or
(c)by deferring the other person's application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.

(2) It is unlawful for a person (whether as principal or agent) to discriminate against another person—
(a) by denying the other person access, or limiting the other person's access, to any benefit associated with accommodation occupied by the other person; or
(b) by evicting the other person from accommodation occupied by the other person; or
(c) by subjecting the other person to any other detriment in relation to accommodation occupied by the other person.

Section 27 of the Act provides:

(1) Part 3 does not make it unlawful to do an act if a purpose of the act is—
(a) to ensure that members of a relevant class of people have equal opportunities with other people; or
(b) to give members of a relevant class of people access to facilities, services or opportunities to meet the special needs they have as members of the relevant class.

(2) However, subsection (1) does not make it lawful to do an act for a purpose mentioned in that subsection if the act discriminates against a member of the relevant class in a way that is not reasonable for the achievement of that purpose.

Section 4A of the Act provides:
(1) In this Act:
"doing" an act includes failing to do the act.
Note The Legislation Act, dict, pt 1 defines fail to include refuse.
(2) In this Act, a reference to doing" "an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
Section 30 of the Act provides:

30(1) This Act does not make unlawful anything done necessarily for the purpose of complying with a requirement of--
(a) a Territory law; or
(b) a determination or direction made under a Territory law; or
(c) an order of a court; or
(d) an order made by the tribunal under division 8.4.

(2) The Minister may, in writing, declare that subsection (1) (a) and (b) expire on a day stated in the declaration.

The Legislative Issues

The factual claims advanced by the Applicant against the First Respondent come down to whether the First Respondent has committed a breach of section 21 or section 20 of the Act. This in turn raises the issue of whether there has been a breach of section 8 of the Act by the First Respondent:
(a)paying insufficient attention to the inadequacy of the house at Palmerston for the Applicant’s known needs;
(b)requiring the Applicant to move from James Court before the modifications at Palmerston were complete;
(c)requiring the Applicant to lodge a formal application for transfer from the Palmerston house.
The factual claims advanced by the Applicant against the Third Respondent come down to whether the Third Respondent has committed a breach of section 20 of the Act. This in turn raises the issue of a breach of section 8 of the Act by the Second Respondent’s decision to recommend and oversight the installation of the ramps at both the front and rear doors with no flat landings adjacent to the door. The case against the Second Respondent is one of vicarious liability for any breach by the Third Respondent

The Case Law

The scope of section 21 of the Act

The provision of public housing falls within the ambit of ‘accommodation’ in section 21 of the Act and probably also within the ambit of ‘goods and services’ in section 20 (Couper v ACT Housing [2004] ACTDT; ACT Health & Community Care Service and Vella [1998] ACTAAT 286).

The difference between direct discrimination (s8(1)(a)) and indirect discrimination (s8(1)(b))

The distinction between the direct discrimination of section 8(1)(a) and the indirect discrimination of section 8(1)(b) was described by the President of the Discrimination Tribunal in Worrall v ACT Health [2006] ACTDT as follows:

42. The distinction between the kind of discrimination dealt with by section 8(1)(b) of the Discrimination Act to that dealt with bySection 8(1)(a) was explained by Beaumont ACJ in Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379;(2001) 108 FCR 1 at 17. Section 8(1)(a)is directed at unfavourable behaviour towards a person because of an attribute. It is concerned with conduct that is aimed at, or towards, the person complaining of discrimination. Section 8(1)(a)therefore addresses conduct involving direct discrimination. Section 8(1)(b), on the other hand, applies where, although the particular conduct is not aimed at a complainant, it has, or is likely to have, the effect of disadvantaging him or her because of an attribute. Section 8(1)(b)deals with cases of indirect discrimination. Section 8(1)(a)and section 8(1)(b)are mutually exclusive.

This same distinction was applied by the President of the Discrimination Tribunal in Woodbury and Australian Capital Territory [2007] ACTDT 4:

74. In Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379, Beaumont ACJ and Gyles J, supported by Higgins J in his separate judgment, discussed the dichotomy between s 8(1)(a) and s 8(1)(b) and provided the following guidance for the application of section 8:
54. ... section 8(1)(a) is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards, the person complaining of discrimination.
55. Secondly, section 8(1)(b) applies where, although the particular conduct is not aimed at the Complainant, it has, or is likely to have, the "effect" of disadvantaging him or her, because of an attribute. In this context, the noun "effect" appears to have its primary dictionary meaning: "1. That which is produced by some agency or cause; a result; a consequence: (e.g.) the effect of heat" (Macquarie).
56 The drawing of a distinction between the intended operations of the two limbs of section 8(1) along these lines is both supported by, and, I think, provides the rationale for, section 8(2). That is to say, the legislature has proceeded upon the basis that section 8(1)(a) conduct is per se (i.e. of itself, whether reasonable or not) deemed to be discriminatory; whereas, by contrast, s 8(1)(b) conduct will be regarded as discriminatory only if it unreasonable. Both logic and experience would support the making of such distinctions: on the one hand, it may reasonably be anticipated that it would be easier for a Complainant to prove the existence of circumstances which justify a finding of s 8(1)(b) conduct than s 8(1)(a) behaviour; but, on the other hand, it may be thought that some limit should be placed upon liability for "indirect" (i.e. s 8(1)(b) conduct) as distinct from "direct" (s 8 (1)(a) conduct) discrimination.

‘Unfavourable’ treatment for the purposes of section 8(1)(a)

Couper raises the issue of what it means to treat a person with a disability ‘unfavourably’ within the meaning of section 8(1)(a) of the Act. It was pointed out in Re: Prezzi and Discrimination Commissioner [1996] ACTAAT 132 and Re ACT Health and Community Care Service and Vella [1998] ACTAAT 286 that section 8 of the Act does not replicate the definitions of ‘discrimination’ found in other discrimination legislation in other jurisdictions including the Disability Discrimination Act 1992 (Cwth) in that it does not require a complainant to show that he/she has been treated less favourably in similar circumstances than a comparator who does not possess a similar disability.
In Prezzi the Administrative Appeals Tribunal found this legislative change to mark a deliberate and important departure from the discrimination legislation in the other jurisdictions:
‘19. The Discrimination Act adopts an idiosyncratic approach to the concept of discrimination. In ordinary language the term "discrimination" involves differentiation between different persons or different groups of person, or between things. It involves the making of a distinction. The primary meaning given to the word "discriminate" as an intransitive verb in the Macquarie Dictionary is "to make a distinction, as in favour of or against a person or thing". This is the sense in which it is commonly used in legislation dealing with discrimination. For example, in section 5 of the Sex Discrimination Act 1984 (Cth), the proscribed activity is defined as occurring where a person treats the aggrieved person, by reason of the sex of the aggrieved person or a characteristic relating to the sex of the aggrieved person, less favourably than the discriminator would, in like circumstances, treat a person of the opposite sex. Likewise, section 5 of the Disability Discrimination Act 1992 (Cth) defines the activity proscribed by that Act as occurring where one person treats the aggrieved person, being a person with a disability, less favourably than another person without the disability would be treated. Section 17 of the Equal Opportunity Act 1984 (Vic), considered by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349, likewise defines discrimination in terms of comparative treatment of persons of different status or with a different private life. The legislation in each case requires a comparison of the consequences of the impugned treatment as between persons with different characteristics or attributes.
20. Section 8 of the Discrimination Act, by way of contrast, defines "discrimination" in a way which does not involve any concept of differentiation or distinction in the consequences of the impugned treatment as between persons with different characteristics or attributes.
21. It appears that this definition of discrimination is modelled on that in the South Australian Equal Opportunity Act 1984. This Act was amended in 1990 to introduce definitions of discrimination along the lines of section 8 of the ACT Discrimination Act. Thus section 66 of the South Australian Act provides that a person discriminates on the ground of impairment if he or she treats another unfavourably because of the other's impairment, or a past or presumed impairment. The South Australian Act, however, includes a definition of unfavourable treatment which includes the concept of comparative treatment. Section 6(3) of that Act provides:
"6(3) [Unfavourable treatment] For the purposes of this Act, a person ("the discriminator") treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance."
22. The ACT Discrimination Act does not include any like definition or any definition at all, of unfavourable treatment. Thus it does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person. While the term "disadvantage" might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines "disadvantage" as "absence or deprivation of advantage; any unfavourable circumstance or condition". The primary meaning of "advantage" does not import comparison; the same dictionary gives it as "any state, circumstance, opportunity or means especially favourable to success, interest or any desired end". The Discrimination Act is therefore about unfavourable treatment of persons and subjecting persons to disadvantage because of the attributes they possess.
23. While it might have been thought that the use of the term "discrimination" in the title of the Act would provide a context in which the concept of comparative treatment might have been read into section 8, there are clear indications in the Act that this is not the legislative intention. The absence of any reference to comparative treatment in section 8, compared with the definition of discrimination in like legislation in other jurisdictions, is compelling. The objects of the Act, as set out in section 3, do not assist. The first of those objects is stated as the elimination of discrimination "to which this Act applies in the areas of work, education, access to premises, the provision of goods, services, facilities and accommodation and the activities of clubs" (emphasis added). To ascertain the objects of the Act it is therefore necessary first to ascertain the nature of discrimination as defined in the Act.
24. It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant's interests or are adverse to the complainant's interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint. In the present case, what is therefore in issue is whether the complainant has, because of a relevant attribute, been dealt with in a particular way which has produced unfavourable consequences, or whether she has been subjected to a condition or a proposed condition because of a relevant attribute which has caused or would cause her some disadvantage. It is not relevant to inquire whether persons without the relevant attribute, but treated in the same way, would have suffered the same disadvantage.
25. On the other hand, it is clear that, under the like legislation in other Australian jurisdictions, different but less favourable treatment on the grounds of a relevant attribute is sufficient to establish discriminatory conduct whatever the consequences for the complainant of the different conduct. Differential treatment is at the heart of the issue in those jurisdictions. Under the Discrimination Act the issue is whether the consequences of the acts complained of are unfavourable to the complainant. In most cases, the result of the two inquiries will be the same. But it is possible that the Discrimination Act test may require a different result in some special cases, where comparatively unfavourable treatment, viewed against the treatment accorded a person without the relevant attribute, does not produce an ultimately unfavourable result for the complainant. The present case may be one of those special cases.’

In Couper the Tribunal noted that the concept of ‘unfavourable’ treatment in the allocation of specially modified public housing may have to take account of the lack of supply and the possibility that no suitable housing may exist. The comments of the former President of the ACT Discrimination Tribunal in Couper are apposite to the present case:

46. Arguably, the refusal by a person, as principal or agent, to provide to another person accommodation other than that which was known to be likely to be injurious to the health or well-being of the other person could involve unfavourable treatment in the terms or conditions on which the accommodation was offered. Arguably also, the creation by a provider of accommodation of conditions in the accommodation that were known to be likely to be injurious to the health or well-being of the occupant of the premises or the failure to eliminate such conditions, when it was reasonably within the power of the provider of the accommodation to do so, could involve subjecting the occupant to another detriment. Whether such conduct did involve a breach of either section 22(1)(b) or section 22(2)(c), would depend upon the circumstances of the particular case.
47. In relation to the first possibility identified it would be necessary for there to be some evidence to establish that any offer of accommodation was attended by the imposition of the offending conditions. Mere evidence of an offer of accommodation with features that were alleged to be not suited to a prospective occupant's situation would not justify a conclusion that the offer was made on terms and conditions that were unfavourable to the applicant. The position might be different if there was evidence of the availability of accommodation suited to the complainant's condition and a refusal to allocate it to her in accordance with her priority on the waiting list. ...
48. Although no submission was made on the issue by either party, the only conduct of the respondent which I am able to identify as arguably unfavourable conduct contrary to section 21(1)(b) is the respondent's expressed intention to regard the offer of premises at Hall as one of two offers to be made which would result in the complainant being struck off the waiting list for the allocation of accommodation if neither offer was accepted. While noting that the deferral of the making of an offer until accommodation reasonably suitable having regard to the complainant's condition might result in an unusually prolonged delay in the making of an offer or at all, a policy which excludes an applicant from the offer of accommodation because of a reasonable refusal to accept it could be regarded as unfavourable conduct. There is, however, no evidence as to the exclusion of the complainant from the waiting list in consequence of refusing to accept the offer of the premises at Hall or any subsequent offer.
49. It is to be accepted that the function of the respondent is to provide housing assistance to the public, particularly those at financial or other disadvantage (see Commissioner for Housing v Smith [1995] ACTSC 17 (14 March 1995)) and that the supply of public housing is necessarily limited and made available only to those most in need (see Commissioner for Housing v Ganas [2003] ACTSC 34 (16 May 2003)).
50. In circumstances where an applicant for accommodation to be provided by the respondent suffers from an impairment or disability that might make particular kinds of accommodation available for allocation unsuitable to varying degrees, the dilemma that can confront the provider of accommodation is whether to make an offer of accommodation so as to satisfy an urgent need for or change of accommodation or to refrain from doing so until such time as more suitable accommodation becomes available. As President Curtis observed in Re Prezzi and Discrimination Commissioner & Anor (1996) 39 ALD 729 at 741:
If, for example, only 2 courses of action were open, each of which might produce a result unfavourable to the complainant, and one course is chosen because of the impairment suffered, does that necessarily mean that there has been discriminatory treatment even if, at the time the action was taken, it appeared to the person taking the action that it was in the best interests of the complainant, as being likely to produce a better outcome? This would penalise a person, acting in good faith in the interests of the impaired person, if it turned out that the action produced an unfavourable result.
51. The making of an offer to the complainant by the respondent of accommodation which was allegedly not suited to the complainant's disabilities does not, by itself, therefore, establish that the complainant has been treated unfavourably in the terms or conditions on which the accommodation was offered. Nor does the absence of the making of an offer acceptable to the complainant, by itself, establish that she has been treated unfavourably. It may be a different matter if there was some evidence that suitable accommodation was available for allocation but the respondent refused to make it available to the complainant when she had advanced to a position on the allocation list that gave her priority to be made an offer. There is, however, as I have noted above, no evidence of this kind before the Tribunal.
52. There is also no evidence that would, in my opinion, establish that the respondent subjected the complainant to a detriment contrary to section 21(2)(c) of the Discrimination Act. The evidence shows that, on being provided with evidence of the harmful effects of tobacco smoke on the complainant, the respondent took steps to relocate the complainant. There is nothing to suggest that suitable accommodation was available to be allocated which the respondent declined to make available to the complainant thereby making her endure unnecessarily exposure to tobacco smoke from her neighbour's premises. Nor is there evidence to show that the (smoking) conduct of the neighbour was attributable to the respondent or within its power to control.
53. In some circumstances, in order to avoid treating a person unfavourably there may be an obligation on a respondent to take positive steps to ensure that a person is not treated unfavourably (Cowell v A School unreported, Human Rights & Equal Opportunity Commission, 10 October 2000). As Commissioner Nettlefold said in Garity v Commonwealth Bank of Australia [1999] HREOC 2 at [6.4]:
The use of the word "favourably" adverts to the notion of giving aid or help. A mere mechanical measure of the aid or help given, which ignores disparate capacities, needs, and circumstances is not sufficient."
...
55. There are additional reasons to conclude that the complaint in this case cannot be substantiated. The Discrimination Act does not impose an obligation to provide accommodation. Rather, it has the effect that a provider of accommodation is required to do so in a way which does not breach section 21 of the Discrimination Act. As I have already observed section 21 may impose an obligation to take positive steps to appropriately respond to relevant attributes including disability. Such steps might include, for example, the provision of wheel chair access, hand rails etc. for persons with physical disabilities. But the principle of "reasonable accommodation" has been said to be central to discrimination law (see Garity at [6.4]; see also Prezzi at 743).
56. The evidence relied upon by the complainant, particularly the report of
Dr Lo dated 11 December 2001, shows that the multiplicity of features necessary to make any premises suitable to meet the requirements of the complainant, having regard to her physical disability and the range of allergic sensitivities from which she suffers, makes the task of identifying accommodation suitable to her needs a matter of considerable difficulty. There is no evidence in the material before the Tribunal which suggests that such accommodation was, during the period covered by the complaint within the stock of premises managed by the respondent or, indeed, elsewhere available.’

The same reservation was expressed again by the former President in Re IF and Commissioner for Housing (DT 01/398) which was a case involving the present Applicant making a similar claim to that which she brings in this case. The applicant appealed unsuccessfully to the Supreme Court. In dismissing the appeal Crispin J made the following pertinent remarks:

It should also be observed that the mere fact that a person has a need for a certain type of property and that property of that type would have been available for allocation to that person; neither establishes nor provides any substantial support for a contention that the person has been discriminated against. The provision of public housing reflects a response of a compassionate society for people in need. Sadly however it appears that the supply of public housing is never adequate to meet the needs of all those seeking accommodation of that kind. There will always be people in desperate need of accommodation because they are physically disabled, as in the case of this appellant, because they have intellectual difficulties or because other considerations such as a combination of poverty and the need to support and house young children. Faced with a constantly burgeoning demand by people in real human need and limited stock of accommodation, it will always be necessary for organisations, such as that operated by the respondent, to seek to make value judgements as to which applicants should be given priority in relation to the allocation of property. That may sometimes mean that an applicant with real need is passed over because the nature of the property would be suitable for a family, and properties of that kind are in short supply. There may be many reasons why the respondent might feel compelled to ignore, or at least defer, the satisfaction of the needs of a particular appellant because of its perception that in the overall scheme of things the needs of others prevails in the relation to the allocation of a particular property.

The present Tribunal notes the reasoning in Prezzi and with no disrespect intended, finds the logic difficult to accept. The term ‘unfavourable’ appears in section 8(1)(a) (direct discrimination) which is not subject to any explicit reasonableness constraints in the Act. The reasonableness constraints of section 8(2) apply only to indirect discrimination in section 8(1)(b). If the logic in Prezzi is correct then, absent the constraints of any comparator or of ‘reasonableness’, a person with a disability could consider themselves treated “unfavourably” for no other reason than they did not obtain what they wanted. Has a person with a disability been treated “unfavourably” because they were not afforded a 6 weeks cruise to London to recuperate? If not, then what criteria within section 8(1)(a) leads to this conclusion?
The present Tribunal is of view that the concept of something being ‘unfavourable’ to a person is inherently a comparative term.
It may be that the relevant comparison is not that contained in the legislation of other jurisdictions in that it does not involve a comparison of the treatment of a person in a similar position who does not have a disability. The relevant comparison might for example be by reference to the person’s realistic or reasonable expectations, objectively determined. If this criterion was taken as the relevant comparator then the rationale for refusing the cruise to London is apparent.
Couper and IF above both grappled with the problem of the competition for limited housing resources suitable for people with disabilities. It is clear that the President of the Tribunal and Crispin J respectively, intuitively felt there was something amiss in finding that a person could claim to be treated “unfavourably” simply by reason that they were not chosen to be the recipient of scare resources in the face of people with greater needs. Most people would share this intuition; but intuition alone is not sufficient to justify the construction of section 8(1)(a) that follows from the intuition.
In each of the examples posited in Couper no basis is advanced for the conclusion that the impugned treatment is not ‘unfavourable’ to the disappointed applicants. Why for example, is it only ‘unfavourable’ treatment not to allocate a house to a person once that person had advanced to the top of the waiting list, and then provided there were no person in greater need on the waiting list? In fact the evidence in the present proceedings is that housing for people on the ‘priority list’ is not allocated on the basis of where a person stands on the waiting list but rather is entirely allocated on a needs basis. A failure to be allocated an available house, when viewed from the narrow perspective of the self interest of the individual, is an ‘unfavourable’ outcome for that person irrespective of whether there are other people in greater need. If however the inherently comparative nature of the ‘unfavourable’ test is recognised and is tested against the person’s reasonable expectations, objectively determined, then the answer is clear.
What is the nature of the causal relationship connoted by the word ‘because’ in section 8(1)(a)

In Purvis v NSW Department of Education & Training [2003] HCA 62 the High Court considered the case of a student who suffered a behavioural disorder that caused him to be violent to other students and teachers. The student was suspended from school because of this violence. The student brought a claim under the Disability Discrimination Act 1992 (Cwth) asserting that he had been treated unfavourably ‘because of’ his disability. The argument ran that the disability caused the violence which in turn caused the suspension, and that ‘but for’ the disability the suspension would not have occurred. The argument was initially successful.
The High Court in a 4:2 decision allowed an appeal. The majority held that the ‘but for’ test was not the appropriate test of causation inherent in the phrase ‘because of’. Gleeson CJ framed the test in terms of ‘the true basis for the decision’ or the ‘genuine’ reasons for it. McHugh and Kirby JJ (dissenting) accepted this same test. Gummow, Hayne and Heydon JJ framed the test as simply ‘why’ the decision was made. In each case an investigation of the motive or purpose of the decision maker was said to be relevant without being definitive in the sense that if an action is inherently discriminatory, and is intentionally done, then lack of motive or purpose will not excuse the offending action.
Worrall v ACT Health [2006] ACTDT 1 concerned a complaint from a man who was denied treatment in a public dental clinic in the ACT on the grounds, inter alia, of his prior aggressive conduct in the clinic. The applicant argued that his aggression was the result of brain damage suffered in a motor vehicle accident and was therefore part of his disability. On this premise he argued that the denial of the dental service was ‘because’ of his disability. His case was dismissed on the following grounds:

‘37. Even if there were such evidence [of brain damage causing aggression], the decision of the High Court of Australia in Purvis v NSW Department of Education & Training [2003] HCA 62 (11 November 2003) makes it clear that it does not follow that a claim of discrimination has been established. It remains necessary for the complainant to establish that, from the point of view of the respondent, the true reason for his treatment by the respondent was the attribute from which he alleges he suffered.’

The substitution of terms such as ‘the true basis’ or the ‘genuine basis’ or ‘the real reason’ do not provide any enlightenment to the present Tribunal and appear to the present Tribunal to be purely semantic exercises. These terms do nothing to provide an understand of the role of the motive or intention of the decision maker or how the ‘true’ or ‘genuine’ reason is to be ascertained, other than by a raw and unexplained finding of fact by the Tribunal concerned.
A consideration of the logic of these cases does however provide some possible guidance. In each case the chain of causation from the disability to the impugned action contained two links, namely that the disability caused the violence and the violence caused the impugned action. In each case the Court and Tribunal appears to have limited the ‘true’ or ‘genuine cause’ to the last link in the chain i.e. the immediate or proximate cause of the impugned action.
It may be that this reading of the cases is unduly influenced by the particular facts of the above two cases but until such time as some useful guidance on the issue emerges from the Courts, this approach appears to be the only one discernable from the cases.

What is the meaning of ‘disadvantage’ in section 8(1)(b)

Re: Prezzi and Discrimination Commissioner [1996] ACTAAT 132 the President of the Administrative Appeals Tribunal considered this issue and said:

‘While the term "disadvantage" might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines "disadvantage" as "absence or deprivation of advantage; any unfavourable circumstance or condition". The primary meaning of "advantage" does not import comparison; the same dictionary gives it as "any state, circumstance, opportunity or means especially favourable to success, interest or any desired end". The Discrimination Act is therefore about unfavourable treatment of persons and subjecting persons to disadvantage because of the attributes they possess.
...
In the present case, what is therefore in issue is whether the complainant has, because of a relevant attribute, been dealt with in a particular way which has produced unfavourable consequences, or whether she has been subjected to a condition or a proposed condition because of a relevant attribute which has caused or would cause her some disadvantage. It is not relevant to inquire whether persons without the relevant attribute, but treated in the same way, would have suffered the same disadvantage.’

The present Tribunal is of the view that the test of ‘disadvantage’ in section 8(1)(b) is an inherently comparative term and repeats the reasoning and conclusion at paragraphs 95-103 above. In coming to this conclusion the Tribunal has not lost sight of the fact that section 8(1)(b) is subject to the reasonableness test of section 8(2).

The concept of a ‘condition’ or ‘requirement’ in section 8(1)(b)

In the context of the Commonwealth Disability Discrimination Act 1992(Cwth) the Full Federal Court in Catholic Education Office v Clarke [2004] FCAFC 197 held that the ‘condition’ or ‘requirement’ imposed for the purpose of indirect discrimination must be something that is additional to the provision of the goods or services being provided (including education or accommodation). In that case the respondent was a profoundly deaf boy who was admitted into a particular catholic college only on the basis that he did not require Auslan support. The service provided was the education and the condition or requirement imposed was that Auslan support would not be provided (see also Waters v Public Transport Corporation (1992) 173 CLR 349 to similar effect).
In the present case it might be said that the alleged requirement that the Applicant take the house at Palmerston in default of which she would be removed from the waiting list; or on the condition that the modifications would be undertaken in the future; are both the kind of ‘condition’ or ‘requirement’ envisaged by section 8(1)(b).

The reasonableness test of indirect discrimination in section 8(2)

In Catholic Education Office v Clarke [2004] FCAFC 197 the Court distilled the following criteria for assessing the reasonableness test for indirect discrimination under the Commonwealth Act which is not materially different to the test in section 8(1)(b) of the Act:

‘(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances:
(ii) The test of reasonableness 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 condition or requirement, on the other:.... Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable:
(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience:... It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case:
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: ...However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable:....’

The Court rejected the argument that the provision of the educational service per se was to the student’s advantage and therefore any curtailment of Auslan support was reasonable because the student was obtaining a service that he may not otherwise obtain. This reasoning is analogous to the First Respondent’s argument that there can be no act of discrimination in providing the Applicant with the house at Palmerston because otherwise the Applicant may have been homeless.

The role of section 27: Measures intended to achieve equality

Section 27 of the Act provides that conduct that may otherwise constitute unlawful discrimination will not be unlawful if a purpose of the conduct was:
(a) to ensure that people with disabilities have equal opportunities with other people; or
(b) to give members of a relevant class of people access to facilities, services or opportunities to meet the special needs provided the conduct is not unreasonable for the achievement of that purpose (s27(2)).

In Richardson v ACT Health & Community Care Service [2000] FCA 654 the Full Federal Court considered section 27 as it then stood, absent present section 27(2). The Court came to the view that the ‘purpose’ referred to in section 27 was the actual subjective intention of the person doing the impugned action:

‘25. Section 27 is concerned to make lawful two types of conduct. First, it is designed to ensure that people who share a particular attribute may be provided facilities etc that are available to the general community. What it is intended to allow is "positive discrimination". Second, the section is designed to permit discrimination between persons who have one of the attributes mentioned in s 7 provided the discrimination results from the need to satisfy the special needs of those persons. So, for example, if limited facilities are available and one person in a class has a greater need for those facilities than another and is provided those facilities for that reason, the discrimination is not unlawful.
26. To determine whether discriminatory conduct is rendered lawful by the application of s 27 the act of discrimination must be for a permitted purpose. That is, the conduct which s 27 protects is not discrimination that has the effect of achieving equality, but discrimination which is intended to have that effect. The word "purpose" refers to the actual intention of the decision-maker or actor. The decision maker's intention is a matter to be established by reference to the facts, including reference to the circumstances from which inferences may be drawn as to the state of mind of the decision-maker: compare Colyer above at 773 per Kenny JA. To determine whether the decision-maker holds the requisite state of mind, it will be permissible to enquire whether the conduct in question was capable of achieving equal opportunity (s 27(a)) or meeting special needs (s 27(b)). That enquiry may be necessary for the purpose of establishing that the claimed intention is one that is likely to have been held by the decision-maker. It is not, however, to substitute for an enquiry into the subjective state of mind of the decision-maker an objective criterion. It is merely one of the means by which a claimed subjective intention can be established, in cases where there may be doubt.
27. In view of the construction placed upon s 27 by the Tribunal, the requisite factual enquiry was not undertaken. Further, the Tribunal's finding which was referred to by the trial judge, namely that the housing program "was designed to meet the special needs of disadvantaged persons" should not be understood as a finding concerning the state of mind of the decision-maker. The full text of what the Tribunal said was that "the action taken by the Respondent is taken in the course of a program designed to meet the special needs of disadvantaged persons". It was not in dispute that the object of the program was to provide accommodation to meet the special needs of disadvantaged people. However, the fact that the particular decision about which complaint is made was taken in the course of such a program does not bring it within s 27. It was still necessary to determine the reason for taking that decision and in particular whether it was taken for a permitted purpose. As that was not the subject of any investigation the Tribunal and the trial judge, by refusing to set aside the decision of the Tribunal, fell into error.’

Following the decision in Richardson the Act was amended and section 27(2) was inserted. The Explanatory Memorandum read:

‘Section 27 has commonly been used to ensure that any special measures conferred on a disadvantaged class of persons for their benefit are not to be taken to discriminate against those persons who are not so disadvantaged. The AAT in the Vella decision and the Supreme Court in Richardson have interpreted the section to an additional effect.
The AAT stated that the wording of section 27 was such that no person could make a discrimination complaint about anything done in the course of providing a program designed to meet the needs of disadvantaged persons. This included a member of the disadvantaged class that any special measures program was intended to benefit. Thus, section 27 as it currently stands is not limited to barring actions only by those persons who are not disadvantaged.
Concern has been raised that this could lead to the effect that it might be considered lawful to discriminate against a person in a special measure program for a reason unrelated to the provision of the special measure; for example, on an irrelevant ground of race or sex. The amendment will make it clear that it will not be lawful to discriminate on irrelevant grounds. It is intended to ensure that a service provider could not refuse a person access to a special facility, or special services designed to suit their needs because, for example, of their religion or sex if they were an irrelevant consideration for the purpose of providing the service.
The amendment will allow people within a disadvantaged group to take action against a service provider if they are treated unfavourably in the course of the provision of a special measures program, in a way that is irrelevant to achieving the purposes of that special measure, and enable them to avail themselves of the remedies under the Act.'

In ACT Health & Community Care Service and Vella [1998] ACTAAT 286 the Tribunal held that section 27 applied to preclude claims of discrimination by residents of public housing in the ACT. The respondent was one of four residents of public housing that formed part of a supported accommodation scheme administered by the applicant. The applicant determined to move a fifth resident into the house without consultation with the existing residents and with predictable negative effects on the amenities of the house. At the time of the decision the reasonableness test of section 27(2) did not exist.
In Catholic Education Office v Clarke [2004] FCAFC 197 the Full Federal Court considered the equivalent provision in the Commonwealth Act (s45(1)) which is in similar terms to section 27(1) save that the Commonwealth provision inserts within section 45 (1) the test that the impugned actions be ‘reasonably intended’ to achieve the various acts of positive discrimination; whereas section 27 places the reasonableness test in a separate sub-section (2). The Full Federal Court said the test of ‘reasonableness’ is an objective test that it not determined by the motives or intentions of those who carry out the impugned action. The Court held that to require a profoundly deaf student to forgo Auslan support in class was not objectively reasonable in the circumstances of the case. The Court referred to the decision in Richardson but made no endeavour to reconcile or distinguish its adoption of a subjective test.

In Woodbury and Australian Capital Territory [2007] ACTDT 4 the President of the former Discrimination Tribunal considered the application of section 27 in the context of a claim on behalf of children with autism. The case for the children was that existing special education programs were all but useless for these children and that other effective programs existed that were not provided by the Department of Education (ACT). The President applied a subjective test to section 27 and held that no act of discrimination existed because the Department of Education had a purpose of providing special education however inadequately:

‘84. Section 27 requires that the Tribunal undertake an examination of the subjective state of the Respondent's mind. That is, the Tribunal must ascertain what are the acts or omissions that are alleged to constitute discrimination and then the Tribunal must make a finding on the subjective reasoning by the Respondent in making those acts or omissions. If the reason for undertaking an act or omission is to achieve equal opportunity or to meet the special needs of a person, then section 27 will apply and the discrimination complained of will not be unlawful.’

In written submissions to the Tribunal, Dr Jarvis for the Respondent noted the decision of the President of VCAT in Mangan v Melbourne Cricket Club [2006] VCAT 73 who was critical of the subjective construction of the equivalent Victorian provision and noted that such an approach would protect actions taken in the context of special needs programs regardless of whether they are misguided, ineffective, poorly executed or positively harmful to those intended to be benefitted (e.g. Vella). Whilst Dr Jarvis appears to express some sympathy for these criticisms he nevertheless points out that this Tribunal is bound by the decision of the Full Federal Court in Richardson.
Dr Jarvis is of course correct in that contention but what this contention leaves out of consideration is the operation of section 27(2) and whether the Tribunal considers that the impugned action was “reasonable for the achievement of that purpose”. In this instance the ‘purpose’ in question is the provision of accommodation to the Applicant suitable for her disabilities.

Consideration of the issues

The above legislative tests are to be applied to the four complaints set out at paragraphs 90-91 above in the light of the findings of fact at paragraph 83 above.
Turning first to the easiest matter to determine, namely whether it was discriminatory for the Commissioner to require the Applicant to lodge a formal application for transfer from the Palmerston house and that the application be assessed in the normal manner (para 90(b) above).
The answer is clearly ‘no’.
There is no act of direct discrimination under section 8(1)(a) in that the Applicant has not been treated ‘unfavourably’ because of her disability. The immediate or proximate cause of the requirement to lodge the application was because of the statutory requirement to do so and because of the Commissioner’s general application of that practice. It would not have mattered whether the Applicant suffered a disability or not, the same requirement would have existed for the application to be lodged.
The requirement to lodge an application for transfer is a statutory requirement under PRHAP and so section 30 of the Act applies. This is a complete answer to this claim in itself.
Beyond this, the Applicant may have had a hope or expectation that she would be accorded special dispensation from the law and policy that applied to all other of the Commissioner’s tenants, with or without disabilities. But the non-fulfillment of that hope or expectation is not enough to give rise to an ‘unfavourable’ outcome. The hope or expectation has to be objectively reasonably based. In the present case there was nothing held out to the Applicant and nothing special in her circumstances that points to it being objectively reasonable for her to expect a dispensation from the law and policy otherwise uniformly applied by the Commissioner.
If the need to lodge a formal application for transfer is taken to be a ‘condition’ or ‘requirement’ for the purposes of section 8(1)(b) then, for the reason given immediately above it produced no ‘disadvantage’ to the Applicant and was an inherently reasonable requirement by the Commissioner for the purposes of section 8(2).
Turning to the claim at para 90(1)(a) above, namely whether the Commissioner paid insufficient attention to the inadequacies of the house at Palmerston for the Applicant’s needs; and whether this is a discriminatory act. In posing this question the Tribunal takes as a fact that the Commissioner’s staff caused the Applicant to believe that she had no choice under the three offer rule but to take the property when it was shown to her in May 2006.
The action of enforcing the three offer rule in the Applicant’s case is not itself a discriminatory act. The three offer rule has a statutory basis which attracts the operation of section 30 of the Act, and is also a policy that is applied to all the Commissioner’s tenants, whether they have a disability or not.
In so far as this policy is one of general application it cannot be said that it was applied to the Applicant ‘because’ of her disability and therefore there is no direct discrimination involved in its application.
The next question is whether the application of the three offer rule is an act of indirect discrimination. In so far as the policy is one of general application it cannot be said to have produced a ‘disadvantage’ in the Applicant, in that the Applicant had no objective reasonable expectation that she would be exempt from the rule. Further, the consistent application of a general rule cannot be said to be unreasonable for the purposes of section 8(2).
The next issue is whether the Applicant was treated ‘unfavourably’ by the allocation of a house that was in an unmodified state on the condition that the modifications would take several weeks (assuming no requirement for the Applicant to occupy the house until the modifications were done). If the concept of ‘unfavourable’ contained in Prezzi were applied then the answer would be ‘yes’. But this is the kind of outcome against which the Tribunal and Crispin J were struggling in Couper and IF respectively. When the same question is posed against a test of an objectively reasonable expectation per para 99-103 the answer is probably ‘no’ for the very reasons advanced in Couper and IF.
There is the further issue of paragraph 90(b) based on the assumption that the Applicant was forced to move immediately into the unmodified house. She was at the time living at James Court and seemingly content with that arrangement. In these proceedings it was put that the Commissioner had no problem with the Applicant remaining at James Court while the modifications were done but that it was the Applicant who decided to move prematurely. The Applicant maintains to the contrary. The Tribunal has come to no finding of fact on this point and will need to hear further evidence on the matter.

If it is assumed that Applicant was forced to move immediately into the unmodified house contrary to the Applicant’s objectively reasonable expectation that the move to Palmerston would be postponed until the modifications were done, then she would plainly have been treated ‘unfavourably’ within the meaning of s8(1)(a). If however the timing of the premature move to Palmerston was entirely that of the Applicant then no such disadvantage would exist.
There might be a debate as to whether this assumed unfavourable treatment was ‘because of’ the Applicant’s disability for the purposes of section 8(1)(a).This raises the issue of whether it could be objectively reasonable for the Commissioner to tell the Applicant that the premature move to the unmodified premises was not optional. The answer must be ‘no’ even on the Commissioner’s own case as put to the Tribunal. There is no good reason why the Applicant could not have stayed at James Court for another few weeks until the modifications were done unless of course she herself was the architect of the timing of the move. The same logic applies to the ‘disadvantage’ test of section 8(1)(b)
On the assumption that the Commissioner forced the premature move to Palmerston there would be an act of direct and indirect discrimination in causing the Applicant to believe that she was required to move into the Palmerston house before the modifications were complete.
The next issue is whether the recommendation by the Third Respondent for the modifications to the house constituted an act of discrimination. The issue only arises in relation to the ramps to the front and back door. All other modifications were satisfactory.
The Tribunal has found as a fact that ramps installed were inherently unsuitable for the Applicant and readily accepts that they presented both a difficulty and a danger for her in entering or leaving the house. The ramps were not installed until September 2006 and so the Applicant was faced with the difficulty of negotiating steps until that time. It is common ground between the two occupational therapists who gave evidence that the Applicant would have great difficulty negotiating steps with her walker. So much was obvious and foreseeable.
The logic of paragraph 138 above concerning the discrimination involved in the premature move to the premises before the modifications were complete, extends to the period until the ramps were installed in September 2006. The premature move caused the Applicant disadvantage in the known difficulty she had in negotiating the steps, and there was no good reason why the Commissioner needed to subject her to that disadvantage pending the completion of the ramps.
In relation to the inadequacy of the ramps themselves, the Tribunal finds that they were inherently and obviously difficult and dangerous for the Applicant with her disability and ought not to have been built in the manner in which they were. The Applicant abandoned any suggestion that the design of the ramps was the product of any intention on the part of the Third Respondent, but intention is not a prerequisite to a finding of discrimination.
A person without the kind of disability suffered by the Applicant could presumably have negotiated the ramps as constructed but it was clear that the disability from which the Applicant suffered would cause this disadvantage to her.
The Tribunal is not persuaded that there was any necessary or compelling reason for the ramps to be constructed in the manner in which they were and accepts the evidence of Mr McGill on this point. There was nothing in the facts that enliven any defence of reasonableness (section 8(2)) on the part of the Third Respondent.

Having found (a) a potential act of discrimination on the assumption that the Commissioner caused the Applicant to believe that she was required to move to Palmerston prior to the completion of the modifications; and (b) an actual act of discrimination in the inadequacy of the ramps; the last issue is whether section 27 applies to render these actions lawful.
On the authority of Richardson the Tribunal is bound to adopt the subjective construction of section 27(1). It cannot be doubted that both of the actions of the Commissioner and Mrs Brocklehurst referred to immediately above where carried out as part of, and for the purpose of, a special needs program for the Applicant. It follows that provided these actions do not infringe section 27(2) that no act of unlawful discrimination has occurred.
The issue then is whether either (a) or (b) of paragraph 146 above were ‘reasonable for the achievement of [the] purpose’ of providing the Applicant with accommodation suitable to her disability. That question in respect of both issues has already been answered in the negative above in the context of the reasonableness defence in section 8(2).
Damages
There have been no submissions from the parties on the issue of damages and so it is not appropriate for that issue to be presently determined. However the Tribunal notes that the following factors may be relevant in this regard:
(a)the Applicant has been the beneficiary of particularly favourable treatment by the Respondent in the purchase of a new and modified house in Latham explicitly for her needs;
(b)the need for the move from Downer and Palmerston was in large measure due to the Applicant’s conflict with the neighbours which the Tribunal finds was primarily caused by the Applicant.

Conclusion

The matter will need to be relisted for evidence on the as yet unproven assumption that the Commissioner’s staff caused the Applicant to believe that she had no choice but to vacate James Court Apartments and move into Palmerston prior to the modifications being completed.

………………………………..

Mr A. Anforth
Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	DT 1 OF 2010
PARTIES, APPLICANT:	d
PARTIES, RESPONDENT:	COMMISSIONER FOR SOCIAL HOUSING & ORS
COUNCEL APPEARING, APPLICANT	N/A
COUNCEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT	MR KETTLE, ACT GOVERNMENT SOLICITOR
TRIBUNAL MEMBERS:	PROFESSOR SPENDER, MS DAVID MR CHENOWETH
DATES OF HEARING:	10 AUGUST 2010 11 AUGUST 2010 12 AUGUST 2010
PLACE OF HEARING:	CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: