Edney and Public Transport Authority
[2006] WASAT 362
•14 DECEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: EDNEY and PUBLIC TRANSPORT AUTHORITY [2006] WASAT 362
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 14 DECEMBER 2006
FILE NO/S: EOA 135 of 2005
BETWEEN: ALLAN EDNEY
Applicant
AND
PUBLIC TRANSPORT AUTHORITY
Respondent
Catchwords:
Impairment - Age - Indirect discrimination - Applicant had difficulty walking and negotiating steps - Local bus service rerouted - Whether changes imposed a requirement or condition - Tribunal not satisfied a requirement or condition within meaning of the Act - In any event respondent's conduct reasonable having regard to the circumstances of the case
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 4(1), s 66A, s 66A(3), s 66K, s 66K(1), s 66K(2), s 66V, s 66V(3), s 66ZF, s 66ZF(1), s 89, s 90(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr T Russell
Solicitors:
Applicant: Self-represented
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
State of New South Wales v Amery [2006] HCA 14
Waters v Public Transport Corporation (1991) 173 CLR 349
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant complained that the consequences of the respondent's decision to re‑route his local bus service amounted to indirect discrimination against him on the grounds of impairment and age.
The Tribunal found that the fact the applicant had to walk further to catch the bus and, if he decided to take a train to walk up an incline at the train station, was not a requirement or condition within the meaning of the Equal Opportunity Act 1984 (WA). Even if it were a requirement or condition, it was reasonable having regard to the circumstances of the case.
The Tribunal dismissed the application.
Background
These proceedings concern a complaint of discrimination on the grounds of impairment and age in the provision of services.
The applicant, Allan Edney, is 65 years old and suffers from severe malformations of his ankles which make it difficult for him to walk any distance. His complaint concerns a decision by the respondent to re‑route the No 8 bus service from near his home to further away.
On 20 February 2004, Mr Edney, who relies on public transport, complained to the Commissioner for Equal Opportunity that, by re‑routing the bus service, the Public Transport Authority (referred to here by its operating name, Transperth) had unlawfully discriminated against him contrary to s 66A, s 66K, s 66V and s 66ZF of the Equal Opportunity Act 1984 (WA) (the Act).
The Commissioner investigated Mr Edney's complaint. She first wrote to him in order to clarify his complaint and then corresponded with both parties. On 25 May 2005, she dismissed the complaint pursuant to s 89 of the Act on the ground that it was lacking in substance.
On 20 July 2005, the Commissioner referred the complaint to the Tribunal at Mr Edney's request, pursuant to s 90(2) of the Act.
Much of Mr Edney's correspondence with the Commissioner and with the Tribunal concerns matters that are beyond the scope of this inquiry and which are not relevant to these proceedings. It includes articles and documents about Mr Edney's claimed psychic powers and a church of which he says he is founder and leader. Much of the correspondence questions the propriety of Commission staff and Government Ministers and officers. Insofar as the submissions do not concern the inquiry before the Tribunal, they are not recounted here.
We have been mindful throughout these proceedings that Mr Edney is representing himself. We have therefore not required of him a formal Statement of Issues, Facts and Contentions and we have not required him to identify relevant provisions in the Act; we have accepted his oral and written statements and submissions. This has presented both the respondent and the Tribunal with some difficulty in identifying clearly the legislative basis for the complaint.
The Commissioner's referral to the Tribunal refers simply to a complaint of discrimination. It appears, from the correspondence before us, that the Commissioner accepted Mr Edney's complaint, as dealt with it, as one of direct discrimination on the grounds of impairment and age in the provision of services. However, in early directions hearings before the Tribunal, Mr Edney was firmly of the view that his complaint is of indirect discrimination on the grounds of impairment and age.
At a directions hearing on 18 April 2006, it was settled between the parties, and the Tribunal ordered, that the matter for determination in these proceedings is whether the re‑routing of the No 8 bus service to a route further from Mr Edney's home constitutes indirect discrimination within the meaning of the Act.
With the agreement of the parties, this decision has been made on the documents before us.
The applicant's complaint
Mr Edney complains that, for some 35 years, he and other residents of Buckingham, East Cannington, Maniana and Queens Park have been able to catch the No 8 bus to and from the city. Some months prior to his complaint to the Commissioner, residents were advised that the service was to cease and be replaced with a new service that would involve catching a No 182 bus to the Gibbs Street train station in Cannington and from there a train into the city.
Mr Edney and other residents complained to Transperth that the new service was not adequate, and disadvantaged him and other elderly and disabled people; in particular, the effect of re‑routing the service would be that, rather than catching the No 8 bus direct into Perth, elderly and disabled residents wanting to travel to Perth would have to catch a No 182 bus to the Gibbs Street train station at Cannington and, from there, a train to Perth. Further, pensioners and disabled persons like him would have to catch extra buses in order to get to the shopping centre in Mint Street, Victoria Park where, he says, shopping is superior to other areas.
Following representations by residents, Transperth amended its plan with the effect that Mr Edney's complaint became one that, although an adequate service was available during weekdays, after 5.20 pm on weekdays and at all times on weekends residents had to use the feeder service to the Gibbs Street station.
Mr Edney has two complaints about the Gibbs Street train station: firstly, that there is a high risk of theft and assault by gangs of young people outside the station and on the platform. He says this is exacerbated by the fact that the new service runs only until 5.20 pm on weekdays and not at all on weekends; it is on weeknights and weekends that gangs of youths are most active and the threat of harm most serious.
Mr Edney's second complaint about the Gibbs Street station is that the long, steep ramps at the station are very difficult to negotiate for anyone who is elderly or who has a disability.
Mr Edney says that Transperth's conduct in re‑routing the bus service amounts to indirect discrimination in that he and others like him now have to fit in with the new service and that he has greater difficulty doing so than others who are not elderly and disabled. He concedes that the effect of re‑routing the No 8 service is not discriminatory during working hours but maintains it is discriminatory after 5.20 pm and on weekends when the risk of assault is greatest.
The respondent's case
The respondent says that the No 8 bus had operated between Beckenham and the city through Victoria Park but was attracting few passengers between Beckenham and Victoria Park, especially during off peak periods, evenings and on weekends. Transperth therefore put out for community consultation and comment a plan to replace the No 8 service with a feeder bus service to Cannington train station and the Cannington shopping centre.
The respondent says that the decision to change the bus service was reached after extensive "patronage checks" along the route; the proposal was publicised in libraries and shopping centres and in the local community newspaper. As a result of comments received, although the No 8 itself was discontinued, the original plans were modified by reinstating some direct bus trips between Beckenham and the city.
The respondent outlines in its submissions the "numerous public transport options" available to residents of the Cannington area. They include one bus service which takes the identical route to the No 8 during morning and evening peak periods, and another which operates all day and into the night, and on weekends. Of the options available, only one, which the respondent concedes is probably the most efficient, involves using the train service.
Transperth says that feeder bus services and trains are a common feature of public transport in the metropolitan area and of all major public transport networks, improving the quality and spread of services generally; in particular, the overall frequency of buses in the Queens Park, East Cannington and Beckenham areas is substantially improved by this new arrangement.
The respondent accepts that some people would have difficulty negotiating the steep ramp at the Cannington train station and has plans in time to make all stations more accessible. In the meantime, however, it points to the alternatives which do not involve taking the train. It says it does not make decisions to alter services lightly and does not wish to inconvenience any existing passengers but it must balance any inconvenience to some against the need to provide services to the community in general and make best use of limited resources.
The respondent denies its conduct constitutes unlawful discrimination within the meaning of the Act.
Relevant provisions of the Equal Opportunity Act
Section 66A(3) and s 66V(3) make unlawful what is commonly called indirect discrimination. They provide, respectively, that a person discriminates against another on the ground of impairment or age if she or he requires that other person to comply with a requirement or condition:
"(a)with which a substantially higher proportion of persons who do not have the same impairment or age as the aggrieved person comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply."
Section 66K(1) makes it unlawful for a person to discriminate against another on the ground of their impairment in the provision of goods, services or facilities:
"(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person."
Section 66K(2) provides an exception where the service cannot be without unjustifiable hardship to, or the imposition of more onerous terms on, the service provider.
Section 66ZF(1) makes it unlawful to discriminate on the ground of age in the provision of goods or services or facilities. It is in terms identical to s 66K(1) but without the exception provided by s 66K(2).
"Services" is defined by s 4(1) of the Act to include services relating to transport or travel.
Reasons for decision
It is not in issue that Mr Edney suffers from a serious impairment within the meaning of the Act in that he is not able, by reason of disabling pain in his legs and ankles, to walk any distance. It is not in dispute that he would have some difficulty negotiating the incline at the Gibbs Street station. Nor is it in dispute that his age makes him less mobile than other, younger people.
It is also not in dispute that, in providing public transport by means of bus and train services, the respondent is providing a service within the meaning of the Act.
Although Mr Edney has not identified the particular provisions of s 66K(1) and s 66ZF(1) on which his complaint relies, as we understand it, he is not complaining that the respondent has refused to provide him with public transport; it is as to the terms and conditions on which, or the manner in which, that service is provided.
We will assume, without deciding, that the changes made by the respondent to the bus service, and the practical implications of those changes for residents, can be understood, within the meaning of s 66K(1) and s 66ZF(1), to be terms and conditions on which, or the manner in which, the service is provided.
Requirement or condition
Indirect discrimination occurs where a requirement or condition is apparently neutral and applicable to all equally, but in fact operates to disadvantage a particular group or groups.
A person claiming indirect discrimination must first identify the requirement or condition with which he says the respondent requires him to comply.
Courts and tribunals have taken a liberal approach to the interpretation of "requirement or condition" in equal opportunity legislation. It should be given a broad rather than a technical meaning: see State of New South Wales v Amery [2006] HCA 14 per Gummow, Hayne and Crennan JJ at [63] considering NSW legislation in similar terms to the WA Act: Waters v Public Transport Corporation (1991) 173 CLR 349 per Dawson and Toohey JJ at 393.
A person providing goods or services should be regarded, in the context of equal opportunity legislation, as imposing a requirement or condition "when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed": Waters (above) per McHugh J at 407.
While the term "requirement or condition" is to be construed broadly, the actual requirement or condition should, in each instance, be formulated with some precision: Waters (above) per Dawson and Toohey JJ at 393, McHugh J at 407. So, for example, where employees had been retrenched under an employment policy referred to as "last on, first off", the majority of the Court identified the relevant requirement for the purposes of the legislation as the stipulation on which the policy was based, namely that an employee had commenced employment before a particular date or otherwise be retrenched: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Dawson J at 185.
For something to be a requirement or condition in relation to a matter, it must be separate from that matter; "something over and above that which is necessarily inherent in the goods or services provided": Waters (above) per Mason CJ & Gaudron J at 361, per Dawson and Toohey JJ at 394.
We do not think that the very route along which a means of public transport travels can sensibly be understood as imposing a requirement or condition within the meaning of the Act. The route is necessarily inherent in the service itself rather than anything separate from it. There is no stipulation, policy or practice that can meaningfully be formulated in order to describe a relevant requirement or condition. It is not a case, such as in Waters(above), where features of the tram service, namely the use of a scratch ticketing system and the removal of conductors from the trams, could sensibly be understood to be requirements or conditions imposed upon users, separate from the service itself.
It is an inevitable feature of any public transport system that it does not service every avenue, street and lane in the metropolitan and country areas. That people have to make their way, even a considerable distance, to the nearest bus or train station cannot meaningfully be understood as a requirement or condition of the service. One person's inconvenience or loss might just as well be another's gain. That is not to say there might not be circumstances in which a particular service could be routed in such a way as to discriminate unlawfully.
Reasonable having regard to the circumstances of the case
Even were we to decide that the respondent had imposed a requirement or condition within the meaning of the Act, Mr Edney would have to show that it is one:
(a)with which a substantially higher proportion of persons who do not have the same impairment or age as he comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which he does not or is not able to comply.
The onus of proving that a requirement or condition is not reasonable lies with Mr Edney: Waters(above) per McHugh J at 411.
The respondent says, and we accept, that it underwent extensive public consultations in order to assess the public's response to its proposal. It made changes to its original proposal after receiving comments from the public. It has provided alternatives to the former service which, in virtually all respects, replace that which was discontinued. Even allowing for the problems at the Gibbs Street station, which are not disputed, alternatives have been made available, albeit less convenient for Mr Edney.
Unless one starts from the proposition that the respondent must provide public transport to every person in a manner entirely convenient to them, there will always be those for whom public transport routes are more or less convenient. Taking into account the limitations on resources available to the respondent and its reconsideration of its original plan to take account of community views, we would not be satisfied in any event that it was not reasonable having regard to the circumstances of the case.
Accordingly, we dismiss the application.
Order
The application is dismissed.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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