ELLIS and DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT
[2011] WASAT 142
•5 SEPTEMBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: ELLIS and DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT [2011] WASAT 142
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 31 MAY 2011
DELIVERED : 5 SEPTEMBER 2011
FILE NO/S: EOA 36 of 2010
BETWEEN: TROY ELLIS
Applicant
AND
DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Discrimination on the grounds of impairment - Application for motor vehicle driver's licence - Provision of goods, services and facilities - Application to strike out or dismiss proceeding - Application misconceived or lacking in substance
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 4(1), s 4(1), s 66A, s 66A(1), s 66K(1), s 90(1)
National Road Transport Commission's National Driver Licensing Scheme 2000
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 1, reg 2, reg 3, reg 4, reg 8(1), reg 12, reg 16(3), reg 16(4)(b), reg 23(1), reg 24(1)(b), reg 25(b), reg 33(1), reg 60, reg 62(3), reg 63, reg 65
Road Traffic (Driver's Licences) Regulations 1975 (WA), reg 5(5)(a)
Road Traffic Act 1974 (WA), Pt IVA, s 6(2), s 6(3), s 42A, s 42D(1), s 111
Road Use Management Driver Licensing Regulations 1999 (QLD)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1), s 47(1)(a), s 47(2)
Transport Operations (Road Use Management Driver Licensing) Regulations 1999 (QLD), reg 31(1), reg 31(2)
Result:
The respondent's application under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) is upheld
Proceeding EOA 36 of 2010 is 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):
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Cocks Macnish & Anor v Biundo [2004] WASCA 194
Hollis v Department of Justice [2004] WAEOT 14
IW v City of Perth (1997) 191 CLR 1
Laurent and Commissioner of Police [2009] WASAT 254
Summerville and Department of Education & Ors [2006] WASAT 174
Waters v Public Transport Corporation (1991) 173 CLR 349
Winter and Commissioner of the Western Australian Police Service [2006] WASAT 87
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant complained to the Equal Opportunity Commissioner of discrimination on the ground of impairment under the Equal Opportunity Act 1984 (WA) in respect of the provision of goods, services and facilities by the respondent. The applicant suffers from Beckers muscular dystrophy. The complaint relates to the respondent's decision to exercise his discretion under the Road Traffic Act (Authorisation to Drive) Regulations 2008 (WA) reg 16(3) and reg 16(4)(b) and require the applicant to undertake a driving assessment, including an assessment by an occupational therapist, in assessing his fitness to hold a motor vehicle driver's licence.
The Commissioner dismissed the applicant's complaint as lacking in substance and at the applicant's request the Commissioner referred his complaint to the Tribunal.
Prior to the final hearing by the Tribunal of the applicant's complaint, the respondent applied to the Tribunal to have the proceeding struck out or dismissed as being frivolous, vexatious, misconceived or lacking in substance pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA). The Tribunal considered the facts in this matter, the relevant provisions of the Equal Opportunity Act 1984 (WA) and s 47 of the State Administrative Act 2004 (WA) and dismissed the proceeding as misconceived or lacking in substance.
Introduction
The applicant suffers from Beckers muscular dystrophy (impairment) and both parties agree that the impairment is within the meaning of s 4(1) of the Equal Opportunity Act 1984 (WA) (EO Act).
On 17 July 2009, the applicant lodged a complaint under the EO Act against the respondent, (EO complaint) alleging discrimination on the ground of impairment in the area of the provision by the respondent of goods, services and facilities. On 7 July 2010, the Equal Opportunity Commissioner wrote to the applicant advising him that she had dismissed the EO complaint as lacking in substance. At the request of the applicant, the Equal Opportunity Commissioner referred his allegations to the Tribunal under s 90(1) of the EO Act.
Statutory framework in relation to the respondent's functions
The respondent is the chief executive officer of the Western Australian Department of Transport, principally assisting in the administration of the licensing provisions of the Road Traffic Act 1974 (WA) (RT Act).
The functions of the respondent include administering the driver licensing scheme under Pt IVA, s 6(2) and s 42A of the RT Act and the exercise and performance of all powers, duties and responsibilities vested in or imposed on the respondent under s 6(3) the RT Act.
The driver licensing scheme is also provided for by regulations, being the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (RT Regulations). The RT Regulations are made under s 111 of the RT Act.
A person who holds a driver's licence granted under the law of another jurisdiction may lawfully drive in Western Australia; RT Regulations reg 60.
However, a driving authorisation recognised by the respondent under reg 60 of the RT Regulations does not authorise the person who holds it to drive in Western Australia if the person usually resides in Western Australia, other than as a member of the Defence Force for the Commonwealth, and the period for which the person has been usually resident in this State exceeds three months; RT Regulations, reg 62(3). Therefore, a person with a driver's licence from another State who resides in Western Australia for more than three months must apply for the grant of a Western Australian driver's licence by giving to the respondent a written application for a driver's licence in a form approved; RT Regulations reg 23(1). The form approved is MDL 1 Driver's Licence Application Form.
The respondent may under reg 63 of the RT Regulations by notice in writing, exclude the holder of an interstate driver's licence from being authorised to drive a motor vehicle in this State for a number of reasons including that they suffer from a physical conditions that is likely to impair the person's ability to control a motor vehicle; RT Regulations, reg 25(b).
The respondent cannot grant a driver's licence to a person who has previously held an Australian driver licence granted under the law of another jurisdiction unless the respondent is satisfied that the person has ceased to hold the licence or authorisation and has notified the respondent in a form approved of that fact; RT Act, s 42D(1). The form approved is MDL 57 Surrender of Interstate Driver's Licence.
As will be seen from the facts set out later in these reasons, the applicant held a Queensland driver's licence, and so he was required to surrender it in accordance with reg 31(1) of the Transport Operations (Road Use Management Driver Licensing) Regulation 1999 (QLD), which provides that 'the holder of a Queensland driver licence may surrender the licence by giving the chief executive written notice'. Further, to reg 31(2) of the Transport Operations (Road Use Management Driver Licensing) Regulation 1999 (QLD), the applicant was required to forward the licence to the (Queensland) chief executive with the written notice.
The surrender of interstate driver's licences, including Queensland licences, is achieved by an applicant for a Western Australian driver's licence completing Form MDL 57 Surrender of Interstate Driver's Licence upon the issue of a Western Australian driver's licence and surrendering their interstate driver's licence card to the Western Australia Department of Transport.
Regulation 8(1) of the RT Regulations provides that the extent to which a driver's licence authorises the licence holder to drive on a road depends on the class or classes of authorisation given in the licence. The classes of authorisation are set out in column 1, Sch 2 of the RT Regulations and include the vehicles set out as follows:
| R | Motorcycle |
| C | Car |
| LR | Light Rigid |
| MR | Medium Rigid |
| HR | Heavy Rigid |
| HC | Heavy Combination |
| MC | MultiCombination |
Regulation 16(3) of the RT Regulations provides that an applicant for a driver's licence who is not a novice or who, although a novice driver, has previously held a driver's licence, may demonstrate their ability to safely drive motor vehicles (authorised by the licence) by satisfying the respondent that they are able to control a motor vehicle (authorised by the licence). Further, reg 16(4)(b) provides that sub regulation (3) does not prevent the respondent from being satisfied that a person can demonstrate sufficient ability in any circumstances and on any basis as the respondent sees fit.
Before the respondent can grant a person a driver's licence, the respondent must be satisfied, amongst other things, that the applicant can demonstrate the ability to safely drive motor vehicles as the licence would authorise; RT Regulations reg 24(1)(b).
The respondent may refuse to grant a driver's licence to a person if the respondent has reason to believe that the person 'suffers from a mental or physical condition … which is likely to … impair the person's ability to control a motor vehicle'; RT Regulations, reg 25(b).
Regulation 65 of the RT Regulations requires a person applying for the grant of a driver's licence to inform the respondent of any driving impairment of the person. A 'driving impairment of the person' is defined in regulation 65(1) as meaning:
… any permanent or long term mental or physical condition (which may include a dependence on drugs or alcohol) that is likely to, or treatment for which is likely to, impair the person's ability to control a motor vehicle either
(a) in all circumstances; or
(b)except under certain conditions or subject to certain limitations; or
(c) unless measures are taken to overcome the impairment.
The respondent may grant a driver's licence to a person on conditions; RT Regulations, reg 33(1).
If a person wishes to carry passengers for reward, they are required to apply for an endorsement on their licence, as a driver's licence does not authorise the holder to drive a motor vehicle when it is being used for the purpose of carrying passengers for reward, either in a taxi or in any other circumstance; RT Regulations, reg 11. In particular, a person may apply to the respondent to have their driver's licence endorsed with either an extension F or extension T. An extension F endorsement indicates that the driving authorised by the licence includes that driving when it is for the purpose of carrying passengers for reward except in a taxi. An extension T endorsement indicates that the driving authorised by the licence includes that driving when it is for the purpose of carrying passengers for reward but, if the driving is at a time when the licence holder has not reached 21 years of age, only in taxi; RT Regulations, reg 12(2) and reg 12(4).
The respondent may only endorse a driver's licence with an extension F or T endorsement if it is satisfied, amongst other things, that the person applying for the endorsement 'is mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward'; RT Regulations, reg 12(6)(d) and reg (7)(d).
In order to ensure that the respondent can be satisfied of the person's fitness to drive, they must submit to a medical examination to assess their mental and physical fitness to drive a motor vehicle for the purposes of carrying passengers for reward within the period of three months before applying for an extension F or T endorsement; RT Regulations, reg 12(10)(a).
The person must provide the respondent with a written report based on that medical examination when they submit their application for endorsement to the respondent; RT Regulations, reg 12(5).
A Form M107A Medical Assessment Certificate Fitness to Drive (medical assessment form) has been approved by the respondent to facilitate the medical practitioner providing the respondent with the required written report of his medical assessment. The medical assessment form directs medical practitioners to conduct the examination in accordance with the national medical guidelines for licensing described in the booklet 'Assessing Fitness to Drive for Commercial and Private Vehicle Drivers 2003'.
Facts
The facts of this matter as set out in the respondent's statement of issues, facts and contentions are largely uncontested by the applicant and are set out below.
The applicant was originally granted a Western Australian A class driver's licence on 11 June 1987. The A class driver's licence, which was the equivalent of the current C class driver's licence, was converted to a C class licence on 4 May 2011.
On 15 May 1991, the applicant was granted a B class licence, which was the equivalent of the current HR class licence. The B class licence was converted to an HR class licence on 4 May 2001.
On 22 May 2001, the applicant's driver's licence was renewed on a 'concession' basis, the applicant being eligible for a reduced fee on the basis that he is the holder of a disability pension.
On 6 April 2004, the applicant applied for endorsement of F (carrying passengers for reward, excluding taxis) and T (taxi) extensions on his driver's licence. Following medical assessment by a general practitioner, Dr Goran Pervan, the applicant was granted an F extension on his HR class licence on 21 April 2004. There was a condition placed on the licence that the applicant undergo a medical assessment in five years under reg 5(5)(a) of the Road Traffic (Driver's Licenses) Regulations 1975 (WA) (now repealed).
The applicant's Western Australian driver's licence lapsed on 11 June 2008.
On 17 March 2008, mandatory medical provisions were introduced in Western Australia for all driver licence holders, bringing Western Australia in line with the National Road Transport Commission's National Driver Licensing Scheme 2000 and the other jurisdictions in Australia. This required the holder of a driver's licence to notify, as soon as practicable, the driver licensing authority of any permanent or long term injury or illness that may impair his or her ability to drive safely.
On 6 March 2007, the applicant was issued with a Victorian driver's licence, equivalent to a Western Australian C class driver's licence.
On 6 March 2009, the applicant was granted a Queensland driver's licence, equivalent to a Western Australian HR class licence, which was due to expire on 10 June 2011.
On 15 May 2009, the applicant attended the Department of Transport's Licensing Centre at Welshpool and applied for the grant of a Western Australian driver's licence as he was transferring back to Western Australia. In the Form MDL1 Driver's Licence Application form, the applicant applied for an HR class licence. This class of licence equals an MR, LR, C and R (moped).
In response to the question in the application form requiring the applicant to disclose any medical conditions that may impair his ability to control a motor vehicle, the applicant stated that he suffers from muscular dystrophy and takes Zyprexa medication.
Although it was not stated in his application form, the applicant also advised the Licensing Centre counter staff that he also wished to reinstate his former F and T extensions.
Because the applicant notified the respondent that he had muscular dystrophy but his application form was not accompanied by a written report based on a medical examination, he was provided with, and signed, a medical assessment form for completion by a medical practitioner. The medical assessment form advised the medical practitioner conducting the assessment that the applicant was applying for an HR class licence with F and T extensions.
On 8 June 2009, the applicant underwent a medical assessment by his general practitioner, Dr Gordon Milne. The medical assessment form was received by the respondent on or about 10 June 2009 and it was noted that in the opinion of Dr Milne the applicant met the national medical guidelines described in the booklet Assessing Fitness to Drive 2003 but only to private vehicle standards. As the applicant was seeking an HR class licence with F and T extensions, on 10 June 2009 the respondent sent a fax to Dr Milne requesting that he urgently assess the applicant in relation to whether he met the standards for a commercial class driver's licence.
On 10 June 2009, Dr Milne faxed to the respondent an amended copy of the medical assessment form which indicated his opinion that the applicant was 'not suitable for HR as has muscular dystrophy', but he did not assess the applicant in relation to commercial vehicle standards for his F and T extensions.
The respondent was unable to contact Dr Milne because he was absent on leave until 19 June 2009, so on 12 June 2009 the respondent referred the applicant's amended medical assessment form to its own consulting occupational health physician, Dr Michael Lucas, to obtain recommendations.
On 12 June 2009, Dr Lucas issued a recommendation that the applicant was fit to drive a C class vehicle but requires further assessment after a period of 36 months, was not fit for an HR class licence and recommended that the applicant be reviewed by a neurologist to determine his suitability for commercial vehicle licence standards.
By letter dated 12 June 2009, the respondent advised the applicant that it could not complete the assessment of his fitness to hold a driver's licence authorisations/extensions HR, T and F, until a report was received from a neurologist. The respondent advised the applicant that he would need to obtain a referral from his medical practitioner to see this specialist, and that the assessment would be based on the national medical guidelines for determining a person's fitness to drive.
On 19 June 2009, the respondent made contact with Dr Milne who indicated that he supported the F and T extension endorsements pending a neurologist report, but not the higher classes.
Dr Milne's comments were referred back to Dr Lucas, who on 19 June 2009, issued a further recommendation which noted that the assessing doctor considered the applicant met commercial standards pending a review by a neurologist, and recommending that the neurologist support be documented and that a further assessment for his F and T extension endorsements be required after a period of 12 months.
The applicant's consultant neurologist, Dr Phillipa Lamont, at the Department of Neurology, Royal Perth Hospital, provided a medical report to the respondent dated 26 June 2009, which confirmed that the applicant has Becker's muscular dystrophy, that he is affected with muscle weakness and wasting of the legs and that it is a progressive deteriorating condition. Dr Lamont also advised that the applicant had been made aware of the possible need for a specialist occupational therapy assessment.
On 29 June 2009, the respondent referred Dr Lamont's medical report to Dr Lucas and on 30 June 2009 Dr Lucas contacted Dr Lamont to discuss the case. Dr Lamont advised Dr Lucas that she recommended an occupational therapist assessment as she could report on the applicant's medical condition and treatment but not on his ability to control a motor vehicle.
On 30 June 2009, Dr Lucas issued a recommendation that the applicant undergo an occupational therapist assessment to determine his 'fitness to drive capacity'.
In a letter dated 30 June 2009, the respondent advised the applicant that it could not complete the assessment of his fitness to hold a driver's licence authorisations/extensions HR, MR, LR, C, F and AT until it had received a report from an occupational therapist. The applicant was advised that he would need to obtain a referral from his medical practitioner to see this specialist.
On 14 July 2009 Dr Milne further amended the medical assessment form, which was faxed to the Respondent on 24 July 2009, indicating that the applicant was fit to drive a private vehicle, but he did not make any indication in relation to the applicant's fitness to drive a commercial vehicle.
In a telephone call on 22 July 2009, the applicant asked if he could be processed for a C class licence. The respondent contacted Dr Lucas on 23 July 2009 to confirm whether his referral of 30 June 2009 to an occupational therapist was for the whole of the driver's licence or just to commercial vehicle standards. Dr Lucas advised that the neurologist recommended an occupational therapist driving assessment for the whole of the licence, and that the applicant was not fit to drive until the occupational therapist had completed her driving assessment of the applicant and the neurologist had signed off.
On 23 July 2009, the respondent telephoned the applicant and advised him of Dr Lucas' advice, and also advised the applicant that he was not able to drive as his driver's licence was not current and clearance was required from an occupational therapist before a new driver's licence could be issued.
Dr Lamont wrote to the respondent on 27 July 2009, as she had been asked by the applicant to clarify that she had not physically seen him since his return from Melbourne. She advised that when the applicant asked for a letter of support regarding the transfer of his Victorian licence to a Western Australian licence, he was advised of the change of legislation since his departure from Perth regarding the mandatory reporting of medical conditions. He was also advised to undertake an occupational therapist driving assessment, booked for September. She advised that the applicant was upset and frustrated that his licence had now been suspended, pending further evaluation, but she was not in a position to evaluate his fitness to drive but would rely on the assessment of the occupational therapist performing the driving assessment.
By letter dated 30 July 2009, the respondent advised the applicant that he had been certified medically fit to hold a driver's licence authorisation C subject to him undertaking a further medical assessment in three years and taking his medication as prescribed by his regular medical practitioner. The respondent also advised that his fitness to hold authorisations HR, MR, LR and extensions F and T could not be determined until receipt of the occupational therapist assessment.
On 4 August 2009, the applicant attended the Department of Transport's Welshpool Licensing Centre and was issued with a Western Australian C class driver's licence, to endure for the period remaining on his Queensland driver's licence (i.e. to expire on 10 June 2011). Upon the issue of his Western Australian driver's licence, the applicant was required to surrender his Queensland licence, which he did.
On 14 August 2009, the applicant undertook a driving assessment with an occupational therapist, Ms Simone Robinson, from the Independent Living Centre.
In a driving assessment report dated 20 August 2009, the occupational therapist concluded that the applicant was 'considered a candidate to be reissued with commercial licence classes F and T with additional conditions', namely that he 'take prescribed medications as recommended by medical practitioner' and that 'he undergo medical assessment at 12 month intervals prior to licence renewal'.
By letter dated 21 August 2009, the respondent advised the applicant that following his recent medical assessment he had been certified medically fit to hold a driver's licence with an extension F equivalent to his driver's licence authorisation C, subject to him having a further medical assessment before 10 June 2010 and taking medication as prescribed by his regular medical practitioner.
Also, by letter dated 21 August 2009, the respondent advised the applicant that following his recent medical assessment he had been certified medically fit to hold a driver's licence extension T subject to him having a further medical assessment before 10 June 2010 and taking medication as prescribed by his regular medical practitioner. However, to complete the formalities for the issue of a T extension, the applicant was required to successfully undertake a Taxi Driver Aptitude Test followed by the taxi driver training course. The applicant has apparently not taken any action to complete the formalities to obtain the issue of a T extension since that date.
Unjustified proceedings
On 8 April 2011, prior to the final hearing of the applicant's EO complaint, the respondent applied to the Tribunal to have the proceeding dismissed or struck out as being frivolous, vexatious, misconceived or lacking in substance pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The grounds for that application are:
(a)to the extent that the applicant relies on s 66K(1) of the EO Act, the respondent does not provide goods or services or make facilities available to the applicant within the meaning of that section; and
(b)if contrary to (a) above, the respondent did provide goods or services or make facilities available to the applicant, then in exercising the discretion, the respondent had acted in accordance with his statutory obligations under the RT Regulations and has not treated the applicant less favourably on the ground of his impairment.
The Tribunal heard the respondent's application on 31 May 2011.
The Tribunal's power under s 47 of the SAT Act
In Laurent and Commissioner of Police [2009] WASAT 254 (Laurent), Deputy President Judge Pritchard (as she then was) considered in detail the power of the Tribunal in relation to applications under s 47 of the SAT Act. From what her Honour said in Laurent, the Tribunal makes the following observations, which continue to reflect the Tribunal's position with regard to the powers of the Tribunal under s 47 of the SAT Act:
1.Section 47(1) of the SAT Act applies if the Tribunal believes that a proceeding is frivolous, vexatious, misconceived or lacking in substance or is being used for an improper purpose, or is otherwise an abuse of process. If s 47 of the SAT Act applies, the Tribunal may order under s 47(2) of the SAT Act that the proceeding be dismissed or struck out and make any appropriate orders. The Tribunal may exercise this power on its own initiative or on the application of a party.
2.Any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution. That will be all the more so when a party whose case is the subject of an application under s 47 is selfrepresented, does not have the benefit of legal representation or legal training and may have difficulty in precisely setting out their claim in writing.
3.Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered. Plainly, as in this case, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding. The power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case.
4.When, as in the present case, an application is made at an interlocutory stage, the Tribunal should assume that all of the factual assertions made by an applicant will be made out and consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived or lacking in substance. Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act.
5.In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the powers of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action.
The decision to dismiss an application as lacking in substance is one that should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success of an application. While the Tribunal may be conscious of an applicant's desire to air their grievance so that they can be fully ventilated and any witnesses the applicant wants heard can be called, to permit proceedings to continue on the basis of very broad allegations where there is no prospect of success creates a substantial prejudice to the respondent; see Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [44 [45].
A complaint is misconceived or lacking in substance where the complainant has no arguable case in fact or law which should be allowed to be resolved at a full hearing; see Cocks Macnish & Anor v Biundo [2004] WASCA 194 at [30] and at [79].
The term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact; see Laurent at [23].
The EO Act
Section 66K(1) of the EO Act provides that it is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's impairment:
(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 66A(1) of the EO Act provides that a person discriminates against another person on the ground of impairment if the first-mentioned person treats the other person less favourably than in the same circumstances, or in circumstances not materially different, the first-mentioned person treats or would treat a person who does not have such an impairment, on the ground of:
(a)the impairment of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
…
The Tribunal's findings
The respondent submits, and the Tribunal agrees, that, to make out a claim of unlawful discrimination on the ground of impairment in the provision of goods, services or facilities under s 66K(1) and s 66A(1) of the EO Act, the applicant must first establish:
(a)that the respondent provided him with goods, services or made facilities available to him within the meaning of the EO Act;
(b)that in the provision of the goods, services or facilities, the respondent treated him less favourably than, in circumstances that are the same or not materially different, a person without his impairment; and
(c)that the reason for his less favourable treatment was his impairment.
The respondent says that as far as it is able to distil from the EO complaint and the applicant's submission to the Tribunal, the applicant's case is that the respondent, in requiring the applicant to undertake a medical assessment, including a driving assessment by an occupational therapist, provided a service within the meaning of the EO Act, and in providing that service, the respondent treated the applicant less favourably than it would have treated a person without his disability in the same or similar circumstances.
The Tribunal accepts this summary of the applicant's case.
Applicant's EO complaint
In the applicant's initial complaint to the Equal Opportunity Commission he indicated that the EO complaint related to discrimination on the ground of impairment or disability in the area of obtaining goods or services. The EO complaint is for the period 15 May 2009, when the applicant applied for a grant of driver's licence, to 30 July 2009, when the respondent advised the applicant that he was certified medically fit to hold a C class driver's licence.
The applicant also alleges in his EO complaint that when he attended the respondent's licensing centre to have his interstate driver's licence transferred to Western Australia, an officer of the respondent said the applicant's licence was suspended until he had undergone an assessment by an occupational therapist. The applicant claims in his EO complaint that originally the respondent was 'only going to suspend my limo and taxi driver['s] licence, but now, for no good reason they have suspended my 'C' class licence as well'.
The applicant admits in his EO complaint that he has a medical condition, namely Becker's muscular dystrophy, but disputes that it is a driving impairment. The applicant alleges in his EO complaint that the respondent is 'requiring me to submit to a test that other people do not have to submit to' because he has a disability.
The applicant alleges in his EO complaint that as a result of the requirement to undergo an assessment by an occupational therapist before he could obtain a C class driver's licence 'I have lost chauffer [sic] and taxi work' and says that the respondent 'should let me have my C class driving licence at once, and then allow me to have my T and F class licenses once I've passed the OT assessment'
While the applicant disputes the respondent's need to medically assess C class driver's licence applicants who have a disability, the applicant seems to accept in his EO complaint the compulsory imposition of a medical assessment for an application for a licence extension F or T. It is the respondent's exercise of discretion in relation to whether a medical assessment is required for a C class licence that seems to be in issue.
However, in his EO complaint the applicant further asserts that the respondent is 'expecting me to spend $160 a year so I can have a licens[c]e'. The Tribunal is unclear what this expense represents or ultimately what the applicant is asserting. It may be that the applicant claims discrimination on the ground of impairment in that he must pay for a medical assessment each year as part of the conditions of the grant of a C class driver's licence, an expense not incurred by persons without his impairment.
Parts of the proceeding beyond jurisdiction
In the applicant's submission to the Tribunal, the applicant raises an additional issue of constitutional validity of the requirement to undergo an assessment by an occupational therapist and further says that his 'claim is not just for discrimination but also for stress' caused by the respondent. In addition, the applicant refers to 'UN documents' and claims that the respondent 'has neglected, punished me and shown ignorance of basic human rights values that the disabled are missing out on'.
However, the Tribunal's jurisdiction is limited to the complaint referred to it by the Commissioner; see generally Winter and Commissioner of the Western Australian Police Service [2006] WASAT 87 and Summerville and Department of Education & Ors [2006] WASAT 174 at [11].
Provision of services
There seems to be no suggestion by the applicant that the respondent provides 'goods' and the Tribunal takes the applicant's contention to be that the respondent discriminated against him on the ground of his impairment in the provision of 'services' and thereby breached s 66K(1) of the EO Act.
The term 'services' is defined in s 4 of the EO Act to relevantly include:
(a)services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; and
(b)services relating to entertainment, recreation or refreshment; and
(c)services relating to transport or travel; and
(d)services of the kind provided by members of any profession or trade; and
(e)services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child’s adoption, under the Adoption Act 1994), a government or public authority or a local government body;
This definition does not materially assist in interpreting what is meant by the term 'services', other than to clarify that a government may provide services in relation to transport. The respondent is a government entity for the purposes of the definition of 'services'
The term 'service' as used in the EO Act has its ordinary and broad meaning. Amongst the ordinary meanings of the term are the action of serving, helping or benefiting; conduct tending to the welfare or advantage of another; and an act of helpful activity; see IW v City of Perth (1997) 191 CLR 1 at 11, 23, 27, 41, and at 70 (IW).
In determining whether a person has provided or refused to provide a 'service', the relevant service in any given case must be identified with sufficient precision and in sufficiently concrete terms to relate the service to the facts of the case and to the issues for determination; see Waters v Public Transport Corporation (1991) 173 CLR 349 at 404.
As the Tribunal has already observed, it is not entirely clear what the applicant says the 'services' provided by the respondent were in this case. However, it seems that the applicant is alleging that the 'service' was the respondent's exercise of his discretion to require further evidence from the applicant, in the form of a medical assessment, to be satisfied that the applicant was fit to drive. Even if the service is characterised more broadly as a refusal to grant to the applicant an unconditional driver's licence, the same considerations discussed below would apply.
Some government functions are undoubtedly services, but not all are. In considering a driver's licence application and being satisfied of a driver's fitness to drive, the respondent undertakes an inherently governmental function, underpinned by key concerns of road safety and public welfare, that cannot be undertaken by private individuals; see Hollis v Department of Justice [2004] WAEOT 14 (Hollis) at [31] [32].
In this case, the Tribunal considers that respondent's exercise of discretion to require further evidence of an applicant's fitness to drive before granting a C class driver's licence cannot be described as a service. It is 'the end product of a deliberative process'; see IW at 17. The respondent is an adjudicator, not a servant of the applicant; see IW at 18.
The Tribunal concludes therefore, that the respondent did not provide services within the meaning of the EO Act to the applicant.
Even if the respondent did in fact offer a service within the meaning of the EO Act by exercising his discretion to require a medical assessment before granting a driver's licence, the service would only have been to consider the exercise of the discretion, not to exercise it in the applicant's favour necessarily; see Hollis at [32].
Further, the respondent did not refuse to exercise the discretion, nor did he exercise it in a particular manner because of the applicant's impairment. He was acting consistently with the legislative requirement that he must be satisfied the applicant is fit to drive before granting a licence. The medical evidence before the respondent was not sufficiently coherent to satisfy the respondent that the applicant was fit to drive. The respondent exercised the discretion to require the applicant to undergo an assessment by an occupational therapist after considering recommendations made by medical specialists.
For the reasons set out above, the Tribunal has reached the view that the applicant's application to the Tribunal is misconceived or lacking in substance and cannot succeed. Accordingly, the applicant's application is dismissed in its entirety.
Orders
1. The respondent's application under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) is upheld.
2. Proceeding EOA 36 of 2010 is dismissed.
I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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