Frank v Amarso Pty Ltd (Discrimination)

[2023] ACAT 56

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FRANK v AMARSO PTY LTD (Discrimination) [2023] ACAT 56

DT 7/2023

Catchwords:               DISCRIMINATION – disability – facilities at shopping centre – compliance with standards

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008

Disability Discrimination Act 1992 (Cth) ss 12, 13, 31, 34
Discrimination Act1991 ss 7, 8, 20, 47, 53
Human Rights Commission Act 2005 s 53A
Legislation Act 2001 s 93

Subordinate

Legislation cited:        AS 1428.1: – Design for access and mobility – General requirements for access – New building work

AS 1428.2: – Design for access and mobility – Enhanced and additional requirements – Buildings and facilities

Cases cited:Haraskin v Murrays Australia Ltd (No 2) [2013] FCA 217

Ryan v Sunshine Coast Hospital and Health Service [2021] FCCA 1537

Tribunal:Senior Member B Meagher SC

Member M Wilson

Date of Orders:  25 September 2023

Date of Reasons for Decision:      25 September 2023

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 7/2023

BETWEEN:

IRIS FRANK

Applicant

AND:

AMARSO PTY LTD

Respondent

TRIBUNAL:Senior Member B Meagher SC

Member M Wilson

DATE:25 September 2023

ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..

Senior Member B Meagher SC
For and on behalf of the Tribunal

REASONS FOR DECISION

1.Iris Frank is a person with specific disabilities and is a frequent shopper at the Jamison Centre, which is a shopping centre in Macquarie, ACT (the centre or Jamison Centre). There, as well as shopping, she sometimes stays to chat with a friend. According to Google Maps and Wikipedia, the centre is a designated group centre and services the suburbs of Aranda, Cook, Bruce, Macquarie, Page, and Weetangera. Amarso Pty Ltd (Amarso) owns the shopping centre and manages it as well. The Director of Amarso is Mr Anthony De Marco, and he is authorised to make statements on behalf of the respondent.

2.The hearing proceeded without contest about the basic facts, and what follows is either admitted or not contested.

3.Ms Frank has several health conditions. The relevant one here relates to her hips. She has osteoarthritis secondary to ataxic spastic diplegia and has had at least three hip replacement operations. She is required to avoid flexing more than 90 degrees to avoid hip dislocation. This means that when seated, her bottom should be higher than her knees. She requires a walking frame for mobility and cannot stand for longer than a few minutes.

4.She complained to the ACT Human Rights Commission (HRC) about facilities at the Jamison Centre. Her complaint was that the toilet seat in the designated accessible toilet was too low for her. She also complained that the seating inside the centre was too low and had no back rest or arm rest. She made a similar complaint about the seats outside the centre. It transpired that those outside seats are provided by the Territory and are no longer in issue here.

5.The complaint was referred by the HRC to Amarso, and it responded. As the matter was not likely to be conciliated, and as requested by Ms Frank, the matter was referred to the Tribunal pursuant to section 53A of the Human Rights Commission Act2005.

6.Amarso contends that the facilities comply with relevant standards, and there is no discrimination.

7.Before going into more detail about the various assertions and specific evidence, it is helpful to examine what is the relevant legislation and what standards may apply.

Legislation and Standards

8.There are two Acts that could apply; Disability Discrimination Act 1992 (Cth) (DDA) and Disability Discrimination Act 1991 (the Act).

9.The DDA led to new standards for buildings and associated fittings being developed. It provides that there is no breach of the Act if the standards are complied with.

10.The Act did not do this specifically but building approvals and development applications had to comply with such standards.

11.The DDA recognises that there may be similar legislation in the States and Territories.

DDA provisions

12.Section 12 makes the DDA applicable in States and Territories.

13.Provision is made to enable any concurrent law in the States and Territories to operate instead of the DDA except in respect of standards, which remain binding as follows:

13 Operation of State and Territory laws

(1) A reference in this section to this Act is a reference to this Act as it has effect because of a provision of section 12.
(2)  A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with discrimination on the grounds of disability.
(3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

(3A) Subsection (3) does not apply in relation to Division 2A of Part 2 (Disability standards).

(4)  If:

(a) a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act (including a matter dealt with by a disability standard); and
(b) a person has made a complaint or initiated a proceeding under that law in respect of an act or omission in respect of which the person would, apart from this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act.

the person is not entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act. (emphasis added)

14.Standards are provided for in section 31, and compliance with them excludes any potential breach of the Act.[1]

The Act

[1] Section 34 states “If a person acts in accordance with a disability standard this Part (other than this Division) does not apply to the person’s act.”

15.As the complaint was made to the HRC the Act applies. It contains very similar provisions about facilities as the DDA.

16.Relevant provisions are:

7 Protected attributes

(1) This Act applies to discrimination on the ground of any of the following attributes (a protected attribute):

(e) disability.

8 Meaning of discrimination

(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminatesagainst someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
 (4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
 (5) 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 any disadvantage that results from imposing the condition or requirement; 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.

20 Goods, services and facilities

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.
(emphasis added)

47 Unjustifiable hardship

In deciding what is unjustifiable hardship for this division, all the relevant circumstances of the particular case must be taken into account, including the following:

(a) the nature of the benefit or detriment likely to accrue or be suffered by all people concerned;
 (b) the nature of the disability of the person concerned;
 (c) the financial circumstances of, and the estimated amount of expenditure by, the person claiming unjustifiable hardship.

53 Discrimination in the provision of goods and services

(1) Section 20 does not make unlawful discrimination on the ground of disability in relation to the provision of goods, services or facilities if—

(a) because of a person’s disability, the goods, services or facilities would have to be provided in a special way; and

(b) their provision in that way would impose unjustifiable hardship on the person providing, or proposing to provide, the goods, services or facilities.

17.In addition, in the ACT, the Building Act – by requiring compliance with the Building Code of Australia (BCA), now called the National Construction Code (NCC); and the Planning and Land Development Act – by the Access and Mobility Code, require building owners to comply with the same standards.

18.The relevant standards are AS 1428.1 and AS 1428.2.

19.AS 1428 .1, deals with those aspects of access to and within a building that are regulated by the BCA,[2] and AS 1428.2 covers those items not covered by building regulations such as furniture and fittings.

[2] AS 1428.1, page 2

20.Examination of the BCA and the Standards makes clear that the standards applicable to bench height or design are in AS 1428.2. The requirements in respect of sanitary facilities, and in particular, the height of the toilet seat is in both standards.

21.The introduction to AS 1428.2 explains that its purpose is both to cover what has not been covered in AS 1428.1, but also to give enhanced requirements. It says that AS 1428.1 will cater for 80% of people with disabilities and AS 1428.2 for 90%. Both are intended to include ambulant as well as wheelchair users, but Part 2 of AS 1428.2 covers an extra 10%.

22.The BCA only refers to AS 1428.1 in respect of sanitary facilities but does refer to Part 2 in respect of grabrails.[3]

[3] An issue raised by Ms Frank in the Tribunal but not expressly in the complaint to HRC.

Sanitary facilities

Is the toilet seat as high as is required by the standards?

23.Clause 10.2.3 of AS 1428.1 requires the seat to be in accordance with figure 18 which requires it to be 460mm to 480mm. In respect of ambulant users, clause 10.8 has the same requirement for seat height.

24.In AS 1428.2, clause 15 adds requirements for ambulant people. Seat height is still the same as shown in Figure 12.

25.There was argument from the respondent that this did not apply, but it was said that in any event the seat height complied.

26.Ms Frank has not provided any measurements but says it is too low for her as she cannot use it without flexing more than 90 degrees which is unsafe and painful. As a result, if she has a coffee at the Centre, she is in danger of having an accident. She referred us to a case where a vision impaired person with no braille or tactile indicators in a building did have an accident.[4]

[4] Ryan v Sunshine Coast Hospital and Health Service [2021] FCCA 1537

27.Mr De Marco provided a Certificate of Occupancy and Use as evidence of compliance with the BCA and applicable standards. He also provided measurements on page 41 of his statement and in Annexure J to his statement. That was a report from the certifier, Mr David McCulloch of BVA Certifiers, to review the compliance of the accessible bathrooms and who had been involved in certifying the refurbishment in about 2006 or 2007. It included measurements showing the seat height complied with the standards. The certifier also said that the measurement was approximately 465mm from floor level exceeding the minimum height of 460mm shown in the standard excerpt.

28.From the above we accept that Ms Frank cannot use the facilities due to her disability but that the seat complies with the standards.

Other sanitary facilities issues

29.A new complaint, not referred to in the complaint to HRC, is the height of the toilet roll dispenser. No detail of its height was provided by Ms Frank, but it is apparent it complies with the standard and its placement would not be useful to Ms Frank if she could use the toilet in the first place.

30.Technically we have no jurisdiction to consider issues not made in the original complaint, but if it had substance, that might only result in a new complaint that went through the same process. Assuming we had jurisdiction, it cannot be said to be non-compliant with the standards.

Grabrails

31.There is a diagram in AS 1428.2 that might indicate that grabrails must extend on both sides of the toilet. The standard in Part 1 does not say this. It says at 10.2.8 “Where a concealed[5] … cistern is used, a continuous grabrail as specified in clause 6.2 shall be provided across the rear wall and side wall nearest the WC pan see figure 21.” The figure does not show a rail extending on both sides and the clause does not suggest that. Clause 15.2 of Part 2 is in the same terms as Part 1 except there is a diagram of there being rails on both sides in Figure 12e as well as other diagrams with it being on one side and continuing along the back. The standard does say extra rails may be provided and, in the diagram, where they were there were walls on both sides – presumably in a cubicle so it was possible. The standards do not require that and what has been provided matches the language in the standard.

[5] Here it is concealed.

32.Again, this was not raised in the complaint to HRC. It is argued to be implicit. It is not implicit but, in any event, the standards in either part have not been breached.

Benches

33.There are two benches in issue.

34.The first is one that was there before the complaint and is located next to a rubbish bin. It does not have a back or arm rest. It was measured by a friend of Ms Frank as being 41cm high. The respondent says all the benches are the same height and the second bench[6] is 43cm as is shown in literature provided by the supplier. The evidence from the supplier is more reliable than a handheld tape by a non-expert bending uncomfortably to hold the tape steady. The new bench has armrests and a back.

[6] Installed in May after the complaint.

35.Ms Frank cannot use them as they are too low for her. She also complains that the back slopes making sitting up straight using the back not possible. The standard is clause 27 of Part 2. It has notes that have encouraged Ms Frank to argue that the standards have not been complied with. Notes in legislation are not read as part of the provision but as guidance only.[7] Clearly the standard is to be read the same way.

[7] Legislation Act 2001 section 93

36.In any event, the standard says “The design and installation of seating shall be as follows: … (b) where armrests are provided …”.

37.No height is mandated nor is an arm rest or back.

38.The notes are inconsistent. Note 1 says “seats should generally be 450mm high and where a high proportion of elderly users are anticipated, heights up to 520mm are preferred … Where possible a range of seat heights should be provided.” Note 2 then refers to a typical park bench in Figure 32 which has a height of 400mm to 460mm. Nothing is said about backrests.

39.While it may be correct to say it would be better if there was a higher seat up to 520mm, it is not mandated and, in our view, there is no breach of this standard by the respondent. In addition, armrests are optional.

Conclusion and orders

40.The undisputed evidence is that Ms Frank has a disability that is not catered for by the sanitary facilities or the benches. That is unfortunate. There may be other users of the Centre that would be assisted by higher seating and a higher toilet seat. It may be possible to provide this within the standards. Obviously, any encouragement by the respondent to attract users to its centre would be worth considering and it may be able to make some more adjustments that achieve greater amenity for Ms Frank and potentially others.

41.What has been provided is not in breach of the relevant standards.

42.On one view, that is the end of it as the DDA expressly removes any unlawfulness where the standards are satisfied. We read the DDA as making the standards mandatory throughout the country and that is so even where there is concurrent legislation in States or Territories. The provision removing unlawfulness where the standards have been complied with arguably also applies to a complaint under the Act, but it could be clearer.

43.The definitions of direct or indirect discrimination might also be clearer. If the respondent did not provide a disabled toilet at all it would be in breach of the Act and if it provides one that does not meet the standards is likely to amount to discrimination in most cases.[8]

[8] In Haraskin v Murrays Australia Ltd(No 2) [2013] FCA 217 at [86] it was said that failure to comply with the standards may not necessarily amount to discrimination

44.The respondent has explained why if the standards are met there is no discrimination in this case. We agree with its submissions. The purpose of the standards is to provide certainty to providers of services or premises and to protect as many people with disabilities as practicable. To provide additional adjustments could interfere with other users. There are some disabilities that cannot be catered for. There is no suggestion here that the difficulties encountered by Ms Frank are in any way directed at her personally and the bench installed in May was provided after receiving the complaint. Ms Frank does not expressly[9] argue that there is discrimination even if the standards are met but argues that they have not been met.

[9] Her submission about toilet height impliedly does

45.The referral to the Tribunal is included in the definition of ‘application’ in the ACT Civil and Administrative Tribunal Act 2008, and it should be dismissed.

………………………………..

Senior Member B Meagher SC
For and on behalf of the Tribunal

Date(s) of hearing:	4 September 2023
Applicant:	In person
Respondent:	T Barrington-Smith, Lexmerca Lawyers