Hollmann v The Act Government (As Represented BY Act Health Directorate, CBR Health Services) (Discrimination) - [2023] ACAT 36

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HOLLMANN v THE ACT GOVERNMENT (AS REPRESENTED BY ACT HEALTH DIRECTORATE, CBR HEALTH SERVICES) (Discrimination) [2023] ACAT 36

DT 38/2022

Catchwords: DISCRIMINATION – disability discrimination – access to premises for COVID-19 testing – access to COVID-19 vaccination and testing facilities – applicant confined to a wheelchair – provision for assistance animals – victimisation
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 7
Discrimination Act 1991 ss 4A, 5, 5AA, 7, 8, 19, 20, 47, 52, 53, 53E, 56, 68, 70, 78, 121A
Freedom of Information Act 2016
Human Rights Commission Act 2005 ss 53A, 53C, 53E
Public Interest Disclosure Act 2012

Subordinate
legislation cited: Discrimination Regulation 2016 r 2

Cases cited:Applicant 202024 v The Australian Capital Territory [2021] ACAT 14
Australian Capital Territory v Phillips [2021] ACAT 122 Casino Canberra Limited v Kidman [2022] ACAT 22
Kerslake v Sunol [2023] ACAT 18
Kidman v Casino Canberra Ltd [2020] ACAT 50
Kovac v The Australian Croatian Club Limited (No. 2) [2016] ACAT 4
Complainant 202012 v Australian Capital Territory (as represented by the Director-General, Community Services Directorate) [2023] ACAT 17
Phillips v Australian Capital Territory (as represented by Chief Minister, Treasury and Economic Development Directorate) [2021] ACAT 22
Rep v Clinch [2021] ACAT 106

Tribunal:Senior Member B Meagher SC
Senior Member D Stewart

Date of Orders:  22 June 2023
Date of Reasons for Decision:      22 June 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 38/2022

BETWEEN:

MICHAEL HOLLMANN
Applicant

AND:

THE ACT GOVERNMENT (AS REPRESENTED BY ACT HEALTH DIRECTORATE, CBR HEALTH SERVICES)
Respondent

TRIBUNAL:Senior Member B Meagher SC
Senior Member D Stewart

DATE:22 June 2023

ORDER

The Tribunal orders that:

The respondent is to pay to the applicant the sum of $5,000 within 28 days by way of compensation.
………………………………..

Senior Member B Meagher SC

For and on the behalf of the Tribunal

REASONS FOR DECISION

Introduction

This matter is a discrimination complaint referred to the tribunal under section 53A of the Human Rights Commission Act 2005 (HRC Act). The complainant, Mr Hollmann claims that he has been discriminated against or victimised in the provision of various services relating to the COVID-19 pandemic. The respondents, the ACT government represented by the ACT Health Directorate, denies that discrimination or victimisation took place.
Mr Hollmann is a person with disabilities. He supplied various medical records to the Tribunal, including a health summary from his long-term general practitioner, Dr Sam Pennell, his NDIS support plan, medical records from a general practitioner in Canberra, Dr Chan, and exemptions relating to the importation of pain medication. No issue with this material or Mr Hollmann’s description of his disabilities was taken by the respondents. Mr Hollmann has limited mobility, requiring use of a wheelchair. He also has an acquired brain injury and various physiological conditions which require the support of an assistance animal. Mr Hollmann is cared for, and in turn cares for, his mother who also has several medical conditions and lives with him. He, at times, has the assistance of various disability support workers. He also has reasons to be concerned about his gender identity which are not necessary to describe here. Mr Hollmann indicated to the Tribunal that he could be referred to using male pronouns.
Mr Hollmann’s initial complaint was recorded by staff at the ACT Human Rights Commission as involving six claims. These claims generally arise out of his experiences in trying to access a COVID-19 vaccine, or testing and subsequent treatment by health authorities. Mr Hollmann claims he was not able to get reliable information on the type of vaccine he received when he was first vaccinated against COVID-19, which made it difficult to book in for a second dose. Government clinics available to him for testing and vaccination were not wheelchair accessible. He was listed as a close contact and had to isolate with his mother despite only very short contact at an exposure site and was not able to access assistance. Upon seeking COVID-19 testing, he was not permitted to bring his assistance animal with him, and on one occasion asked to wait due to concerns over access for his wheelchair. The Australian Federal Police (AFP) were sent to his house due, he claims, to his complaints about his treatment at the testing centres, and he was repeatedly hung up on while trying to call Access Canberra to correct his gender as it was recorded in the system. Mr Hollmann alleges these claims amount to discrimination on the basis of his disability or gender identity, or amount to victimisation for the purposes of the Discrimination Act 1991 (Discrimination Act).
Further details of each of these claims, consideration of the evidence relating to each and the evidence in response provided by the respondent, is set out below.
Mr Hollmann has raised various other concerns over the course of the proceedings. In documents lodged with the Tribunal, he raised whether his treatment may have amounted to discrimination due to his being a person of Aboriginal and/or Torres Strait Islander heritage. He also raised concerns over accessing dental treatment and difficulties in attempting to lodge a public interest disclosure under the Public Interest Disclosure Act 2012 and getting access to medical records through a request under the Freedom of Information Act 2016. At the hearing of this matter, the respondent raised concerns that these additional concerns went beyond the scope of Mr Hollmann’s initial complaint made to the ACT Human Rights Commission, and hence, may be beyond the Tribunal’s jurisdiction in hearing this matter. Mr Hollmann indicated, however, that he was limiting his application to his initial claims and had raised those additional concerns to support his contentions about victimisation or mistreatment by ACT government staff.

Legislative background

The referral of a complaint under section 53A of the HRC Act relevantly initiates consideration by the Tribunal of whether there has been an unlawful act under the Discrimination Act. For the purposes of this matter, an unlawful Act relevantly includes whether there has been unlawful discrimination under Part 3 of that Act, or victimisation under section 68 of that Act.
The meaning of discrimination for the purposes of the Discrimination Act is set out in section 8:
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 discriminates against 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.
Protected attributes under section 7 include disability and gender identity. Disability in turn is defined in section 5AA and includes loss or partial loss of a bodily function and reliance on an assistance animal. References in the Discrimination Act to doing an act includes not doing an act.[1]
[1] Discrimination Act section 4A
This matter primarily concerns discrimination relating to access to public premises and the provision of goods and services as provided in sections 19 and 20. Section 19 provides:
It is unlawful for a person to discriminate against another person—
(a)     by refusing to allow the other person access to, or the use of, any premises (public premises) that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b)     in the terms or conditions on which the discriminator is prepared to allow the other person access to, or the use of, public premises; or
(c)     in relation to the provision of means of access to public premises; or
(d)     by refusing to allow the other person the use of any facilities (public facilities) in public premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e)     in the terms or conditions on which the discriminator is prepared to allow the other person the use of public facilities; or
(f)     by requiring the other person to leave public premises or cease to use such facilities.
Section 20 provides:
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.
The Discrimination Act provides exceptions for what would otherwise be unlawful discrimination where altering premises to provide access to a person with a disability[2] or providing goods, services or a facility in the special way required by a person’s disability[3] would impose an unjustifiable hardship. Section 47 sets out what is to be taken into account in determining what is 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.
[2] Discrimination Act section 52
[3] Discrimination Act section 53
Section 56 also provides an exception for unlawful discrimination against a person on the ground of disability if the discrimination is necessary and reasonable to protect public health. The person seeking to rely on exceptions such as those relating to unjustifiable hardship or public health bears the onus of establishing they apply.[4]
[4] Discrimination Act section 70
Section 68 of the Discrimination Act provides protection against victimisation. It relevantly provides:
68 Victimisation
(1) It is unlawful for a person (the first person) to subject, or threaten to subject, another person (the other person) to any detriment because—
(a)the other person, or someone associated with the other person—
(i)has taken discrimination action; or
(ii)proposes to take discrimination action; or
(b)the first person believes the other person, or someone associated with the other person—
(i)has taken discrimination action; or
(ii)proposes to take discrimination action.
(2) In this section:
discrimination action means any of the following:
…
(g)reasonably assert any rights that the other person, or someone else, has under this Act;
(h)claim that a person has committed an act that is unlawful under this Act, or is an offence against the Criminal Code, section 750, other than a claim that is false and not made honestly;
(i)do anything else in accordance with this Act.
discrimination complaint means a complaint under the HRC Act about an unlawful act. …
Responsibility for the conduct of representatives, including employees and agents, is explained in section 121A. If the Tribunal is satisfied that a complaint has been made out, under section 53E of the Human Rights Commission Act 2005, the Tribunal is required to make one or more of the following orders:
(a)     that the person complained about not repeat or continue the unlawful act;
(b)     that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)     unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
There is no dispute in this matter that Mr Hollmann has various medical conditions which fall within the meaning of disability under section 5AA. It was also not contested that access to a vaccination or COVID-19 test was a good, service or facility for the purpose of section 20. Assuming the factual basis of Mr Hollmann’s claims to be true, the principal legal issues raised by his claims involve whether there was a sufficient connection between his disability and any condition or requirement which disadvantaged him, whether that condition or requirement was unreasonable, and whether removing that condition or requirement would impose an unjustifiable hardship on the respondent.

Standard of evidence

An ongoing concern raised by the respondent in its various responses to the claims raised by Mr Hollmann, and repeated again at the hearing into this matter, was the lack of specific details associated with Mr Hollmann's claims. The Tribunal understands that this concern was raised by the respondent not as criticism of Mr Hollmann but both as a factor to be considered in determining whether discrimination has occurred and to argue that the respondent should not be prejudiced due to not knowing in advance the case it has to answer.
In response to these concerns, Mr Hollmann has suggested that the lack of documentation supporting his claims is in part due to the ACT government refusing to allow him access to documents he sought under the FOI regime. He also may have lost some text messages sent to his phone prior to April 2021 due to having recently lost his phone and having difficulty importing all of his old messages across to his new phone.
In part to assist Mr Hollmann in providing further details relating to his claims, a preliminary hearing in this matter was held on 26 September 2022. A transcript of the evidence provided by Mr Hollmann at that preliminary hearing was intended to serve as Mr Hollmann's witness statement. Prior to that preliminary hearing, Mr Hollmann provided the Tribunal with video footage of him attempting to access a COVID-19 testing centre, and a document headed Statement of Concerns. After the preliminary hearing, Mr Hollmann also provided an email with what is described as a timeline of events, and a document headed “ACAT 3 A response” each of which include further details and comments in relation to the claims made. Various screen shots of text messages received by Mr Hollmann informing him of COVID-19 test results were also provided, along with other documentation relating to his medical conditions and relating to his assistance animal. Further clarification of several elements of his claim was also provided by Mr Hollmann during cross-examination at the hearing into this matter.
On the basis of this material Mr Hollmann was able, during the course of cross‑examination, to clarify the timing of a number of elements of his claim, particularly those relating to his period of isolation after being identified as a close contact. However, these dates were not reasonably available to the respondents prior to the hearing. The timing of some elements of his claims, such as the timing of his various visits to the Garran testing centre, remain uncertain.
Mr Hollmann, as the applicant in this matter,[5] bears the burden of having to establish that there has been discrimination or victimisation under the Discrimination Act. To establish that the respondent’s conduct amounts to discrimination, Mr Hollmann must establish that he has a protected attribute, that the conduct in question has occurred in an area protected under the Act,[6] and that the conduct amounts to unfavourable treatment or imposes a condition which disadvantages the applicant. Where Mr Hollmann relies on indirect discrimination, he must also establish that any condition or requirement imposed on him is not reasonable. Mr Hollmann must be able to establish these elements irrespective of what evidence is presented by the respondent.
[5] See Human Rights Commission Act 2005, section 53C
[6] This relevantly includes conduct in relation to access to premises or in the provision of goods, services and facilities.
Under section 53CA of the HRC Act, Mr Hollmann only has to establish some basis for the other main element of a discrimination claim – that the person’s protected attribute was the reason for the unfavourable treatment or effect of the condition. The burden then shifts to the respondent to establish other bases for that treatment or effect. As discussed below, this may be relevant to some of Mr Hollmann’s claims relating to the booking and cancellation of appointments and referral to the AFP. The respondent has been able, however, to put evidence to the Tribunal about the basis of the conduct impugned in those claims.
Section 70 of the Discrimination Act also shifts the onus of establishing an exception, exemption, excuse, qualification, or justification to the respondent once conduct is otherwise established to be an unlawful act. The respondent therefore generally has a burden to establish the availability of any exemption relating to unjustified hardship or the protection of public health. Again, the respondent was able to put forward evidence going to these elements at least in relation to the policies and general practices adopted by the respondent during the pandemic.
Where Mr Hollmann’s claims relate to his treatment by particular persons or the conditions confronted on particular occasions, however, the lack of details have prevented the respondent from putting forward evidence that might contradict or condition Mr Hollmann’s recollection of the events. The respondent has, however, been able to cross-examine Mr Hollmann to test his recollection and to put to him the respondent’s views and characterisations of the alleged conduct.
In the findings of fact set out below, the Tribunal has taken into account the difficulties faced by the respondent in presenting evidence. The Tribunal is required to observe natural justice and procedural fairness, including providing the respondent with a reasonable opportunity to know and respond to the allegations made against it.[7] A finding that there was an unlawful act under the Discrimination Act must be based on “a comfortable degree of satisfaction based on sufficiently robust evidence, rather than inexact proof, indefinite testimony or indirect inference”.[8] However, the Tribunal is tasked in this matter with making findings of fact and law in determining whether there has been an unlawful act under the Discrimination Act. Those findings may be based on evidence that has not been able to be directly challenged by the respondent, provided in doing so the respondent is not unfairly prejudiced.
Oral Evidence
[7] ACT Civil and Administrative Tribunal Act 2008 section 7
[8] See respondent’s Response and Submissions at [16]. See also Applicant 202024 v The Australian Capital Territory (represented by Access Canberra) [2021] ACAT 14 at [116], which was cited with apparent approval in relation to a claim of indirect discrimination in Australian Capital Territory v Phillips [2021] ACAT 122 at [108]

Mr Hollmann gave evidence and was cross-examined. He was self-represented. Ms Costin of counsel appeared for the respondent. We were impressed by Mr Hollmann in his general demeanour in and out of the witness box. He was polite, considered, articulate, and intelligent. He readily made concessions and was an excellent witness. An example of his approach to the case was that at the outset when he was asked what remedies he wanted he included a reference to compensation and when pressed suggested $30,000. At the conclusion if the case he made it clear that compensation was not important to him, but he was concerned to ensure that others did not have to go through what he did and was seeking to improve the system. Whilst there may be some aspects of his case that we cannot support due to lack of detail or cogent evidence there is no concern in our minds about his credibility
There were three witnesses for the respondent. They were all impressive witnesses. While these witnesses were not directly involved in the conduct Mr Hollmann alleges constituted discrimination or victimisation, they had substantial roles in establishing and administering the facilities, systems and processes underlying that conduct. The witnesses were involved with establishing access to premises and services at a time of considerable urgency and uncertainty at the emergence of the pandemic and as the ACT government response to the pandemic evolved over time. They clearly approached their roles cognisant of the needs of persons with disabilities in being able to access vital services.

Claim 1: Access to a second dose of a COVID-19 vaccine at an Access and Sensory Clinic

Factual background

Mr Hollmann received his first COVID-19 vaccination on 25 March 2021 at the Winnunga Nimmityjah Aboriginal Health and Community Services, a government funded but independent health service. He would be able to receive a second dose after six weeks. Despite requests he was not told which type of vaccine he had received. In part due to that uncertainty over which brand of vaccine he had received, Mr Hollmann attempted to use the MyDHR online system to book an appointment for his second dose from an ACT government provided clinic. At the time, the ACT government only provided one Access and Sensory Clinic that was specifically adapted for people with physical and cognitive disabilities. That clinic only offered the Pfizer brand of vaccine. At that time, restrictions put in place by the Australia Technical Advisory Group on Immunisation (ATAGI), a Commonwealth government body, prevented mixing vaccine types. Mr Hollmann claimed that he made several unsuccessful attempts by phone to book into the Access and Sensory Clinic, either to receive a second dose or to confirm with a medical practitioner which type of vaccine he had received for his first dose. Bookings he had made on the online booking system were cancelled.
At the time Mr Hollmann was attempting to book his second dose of the vaccine there was some concern in the media about potential side effects from the Astra‑Zeneca vaccine which meant that it was no longer recommended for people under 60 years old. However, Mr Hollmann claims that he was ‘brand agnostic’ and was more concerned with being sure that he was receiving the right type of vaccine for his second dose. He claims that the people he spoke to from the ACT Government when trying to book an appointment were not able to provide him with any evidence on what type of vaccine he had received. They accused him of trying to ‘game the system’ and receive a different type of vaccine for his second dose.
Mr Hollmann was able to book an appointment at the vaccination clinic at Bruce (within the Calvary Hospital campus) but the person he spoke to when making that appointment was not able to inform him whether the clinic was wheelchair accessible. He did not receive any information on how to find the clinic. On the day of his appointment, he could not locate the clinic after driving around for over 30 minutes. He then went into the main reception for Calvary Public Hospital to ask for directions. He was asked by the person at the reception desk for his name, and asked various questions about his gender including whether he was correctly identified on the system as female. Mr Hollmann states that he left without getting directions and was not able to make his appointment.
Mr Hollmann received his second dose from a non-government general practice clinic located in Charnwood on 14 July 2021. He was given an Astra-Zeneca brand of vaccine.
Applicant’s contentions
Mr Hollman contends that an Access and Sensory clinic should have been available to him for both the Pfizer and Astra-Zeneca vaccines. Alternatively, he should have been able to book at appointment at an Access and Sensory Clinic to discuss his vaccination requirements with someone with medical training.
Mr Hollmann believed that the refusal to allow him to make a booking at an Access and Sensory clinic was, at least in part, in response to complaints he had made about his treatment by Access Canberra staff when he tried to convert from a Victorian to ACT driving licence.
Mr Hollmann argued that the lack of adequate directions and signposting to the Bruce clinic meant that the clinic wasn’t accessible, particularly when you consider the time and effort for him to access his wheelchair to be able to ask for directions. The ACT Government should also have ensured that staff at Calvary Hospital had adequate training on how to deal with someone with disabilities such as himself.
Respondent’s evidence and submissions
Mr Keene, a witness for the respondent, provided evidence that vaccination records were stored on the Commonwealth Government’s Australian Immunisation Register (AIR). An individual could access their record through the Commonwealth MyGOV website. Authorised officers of ACT Health were also provided access to this record to ensure patients at ACT-run clinics received the correct vaccination type, dose and interval. There were delays in AIR being updated – if a person received a vaccination at a clinic other than a territory run clinic the vaccination record may not appear on AIR for weeks or possibly even months.
Evidence provided by the respondent also suggested various reasons why, at least during the initial stages of providing vaccines, the Access and Sensory Clinic had not been provided with multiple types of vaccine. For example, Mr Keene from the ACT Health Directorate summarised the implications of having two different vaccines available as:
significant, particularly given the volumes [of vaccines] that were going through. Different vaccines had different storage requirements … - some needed ultra-low temperature storage, some didn't. They had different draw-up requirements, different procedures. They were administered in different ways. Different people were eligible for them at different points. They had different costs. Yes, there was a range of issues that - that were considered there. I think the key … consideration was ensuring accessibility across the system, even if an individual site didn't have a specific thing that someone wanted that was available somewhere else if it met ATAGI guidance.[9]
[9] Transcript of proceedings, 22 March 2023, page 230
There was also no technical connection between the MyDHR booking system or other systems operated by ACT Health and those used by Access Canberra staff. Access Canberra had access to the public website for information on health services provided by ACT Health but not to the booking system. Although it was possible that individual staff from Access Canberra may also have been employed to operate ACT Health booking services, that was highly unlikely.
During cross-examination of Mr Hollmann, Ms Costin, acting for the respondent, suggested that the Bruce clinic was fully wheelchair accessible, and that individuals were sent a text message prior to their appointments including a link with directions on how to find the clinic. Mr Hollmann responded that he did not receive such a text message and was not able to find it on his phone, though he conceded that he may not have retained text messages prior to April 2021 which may have included the text in question. However, the respondent did not lead any direct evidence specific to the accessibility of the clinic at Bruce or the use of text messages.
Consideration
Not having access to an Access and Sensory clinic is not itself a ground for discrimination. To the extent this claim could involve a failure to provide access to premises under section 19 of the Discrimination Act, not permitting Mr Hollmann to book an appointment at the Access and Sensory clinic was a restriction based on ATAGI requirements for the vaccine type Mr Hollmann was eligible for and the difficulties associated with an individual clinic providing more than one type of vaccine. Any disadvantage Mr Hollmann suffered was not due to his disability. Mr Hollmann does not suggest that the ATAGI requirements should not have been implemented by the respondent or he should otherwise have been provided access to the Pfizer vaccine at the time he was eligible for his second dose.
Similarly, to the extent access to an Access and Sensory Clinic is itself a form of good, service or facility for the purposes of section 20 of the Discrimination Act, Mr Hollmann has not been denied or otherwise disadvantaged in being able to access that service due to his disability. In our view, however, the service being provided by the respondent in this case is access to a vaccine for which Mr Hollmann is eligible. To establish discrimination in the provision of the Astra‑Zeneca vaccine, Mr Hollmann would have to establish that he was being treated unfavourably due to his disability in the way that vaccine was being offered, or it was being offered on a condition or requirement that disadvantages Mr Hollmann due to his disability. In the circumstances of this case that would require establishing that the clinic at which the Astra-Zeneca vaccine was available was not accessible to a person with a disability such as Mr Hollmann.
Mr Hollmann did not present any evidence that the vaccination clinic at Bruce was not wheelchair accessible. Instead, he suggested that the clinic was not accessible to him because he could not find it. There was inadequate signage or other information available to him to locate the clinic. But Mr Hollmann did not suggest that his inability to locate the clinic was due to his disabilities. Instead, he pointed to the inconvenience due to his disabilities of having to leave his car and ask for directions.
In our view there is insufficient evidence to establish that the respondent had failed to provide sufficient information about the location of the Bruce vaccination clinic so as to make it inaccessible without requiring persons with a booking at the clinic to enquire about its location at the Calvary Public Hospital Reception. Even if the need to make enquiries was to be expected, any likely disadvantage to Mr Hollman would be moderated by the ability of Mr Hollmann to make those enquiries given the wheelchair accessibility of the reception area. The conduct of Calvary Public Hospital staff is not under the control of the respondent. There may also have been a variety of other ways in which Mr Hollmann may have obtained information about the location of the clinic, either on his own initiative or through the receipt of a text message from the respondent. We therefore consider any requirements imposed on Mr Hollmann to access the Bruce vaccination clinic to be reasonable and hence not constitute a form of indirect discrimination.
We also do not consider there is sufficient evidence to establish that any difficulties Mr Hollmann had in accessing information from the respondents on which type of vaccine he had received for his first dose or in booking an appointment to discuss his vaccine requirements with a medical practitioner was impacted by his disability. There is also insufficient evidence to establish that any detrimental treatment he received was due to complaints he may have made in previous dealings with Access Canberra related to his driving licence.

Response to complaint to the Minister’s office

My Hollmann’s initial complaint to the ACT Human Rights Commission includes reference to being listed as a close contact and forced to isolate without adequate assistance. During that period, Mr Hollmann claimed that AFP officers visited his house to raise concerns that he was attempting to obtain a different type of vaccine. Government staff were not taking his calls and hanging up on him, and kept changing his gender status on government websites to male after he had changed it to indeterminant. At the preliminary hearing and in documents filed with the Tribunal Mr Hollmann provided further details about these claims, though at times in general terms and without specific details. At the hearing of this matter, it emerged that Mr Hollmann’s claims represent what he considers victimisation as a result of his complaints about the discrimination he has faced in trying to access COVID-19 vaccines and services.
An email sent by the office of the Minister for Health on 13 August 2021 to ACT Health indicated that Mr Hollmann had just contacted the Minister’s office to get assistance with booking a second vaccination dose. The email describes Mr Hollmann’s attempts to make a booking at an Access and Sensory Clinic and questions about accessibility at the clinic in Bruce, and that he had been trying to get advice for several weeks without being able to get an answer.
Mr Hollman, in his evidence at the hearing, described this call as an attempt to complain about the difficulty of booking a second vaccination dose at an access and sensory clinic. He already had his second vaccine dose. Prior to receiving his second vaccine dose, he had made a booking at the Bruce clinic for the 19 August 2021 and failed to cancel it. On 19 August 2021 he shifted the booking to the 23 August 2021 but did not attend as he had been able to make a booking using the online booking system on 19 October 2021 for the Pfizer vaccine in the expectation that he would be able to receive a different type of vaccine by that time. Mr Hollmann claims that this booking was cancelled without informing him, along with another booking he made for the Pfizer dose on 9 November 2021.
On 16 August 2021, in an email response to the Office for the Minister for Health, ACT Health staff reported that they had contacted Mr Hollmann to assist him in making a booking for his second dose but that he had raised his voice and been abusive. After the call was ended by ACT Health staff, Mr Hollmann returned the call a further six or seven times, including from a different phone.
Mr Keene also gave evidence that it had been reported on vaccination booking line records that Mr Hollmann had been abusive on multiple occasions on calls with ACT Health. Mr Keene was advised that Mr Hollman had not attended his appointment on 23 August 2021, that Mr Hollman’s booking for 19 October 2021 was cancelled due to Mr Hollmann not being eligible for a Pfizer dose at the time the booking was made, and that there is no record of Mr Hollmann attending the appointment on 9 November 2021. Individuals were only allowed to receive a different type of vaccine for their third dose after an announcement by ATAGI on 8 October 2021.
Mr Hollmann, in cross-examination, denied that he had unreasonably raised his voice or been abusive on phone calls with ACT Health staff. He states that various staff had accused him of trying to access a Pfizer vaccine when all he had tried to do was raise a complaint about his earlier treatment and obtain his appropriate third dose.
Mr Hollmann also complained that members of the AFP were sent around to his house while he and his mother were isolating, having been identified as close contacts of a person who tested positive for COVID-19. Various phone calls after that initial visit and a further visit from AFP officers suggested that they were concerned Mr Hollmann was attempting to get access to different versions of the vaccine contrary to ATAGI restrictions. Mr Hollmann claims that the AFP had been sent around in response to his complaints to the Minister’s office and ACT Health staff. He had a visit from police when he first moved to Canberra after he had complained that Access Canberra had discriminated against him when he had tried to move his licence over from Victoria to the ACT. His mother was particularly distressed by the visits from the AFP due to her experience as a member of the stolen generation.
The respondent provided emails from ACT Health and evidence from Mr Keene which suggested that a referral had been made to the AFP on the basis of Mr Hollmann’s abusive conduct when speaking to ACT Staff after they contacted him following the email from the Office of the Health Minister. Mr Keene suggested that the referral was made due to a concern Mr Hollmann may attend a government vaccination site and become aggressive if he was not able to access the vaccine he wanted. The referral was made to the AFP liaison officer situated within ACT Health. The liaison officer would have reported the concern to the AFP who then determined what form of action was appropriate.
Partly in response to the questioning about his gender that Mr Hollmann had experienced when trying to access the vaccination clinic at Bruce, Mr Hollmann changed his gender on the MyDHR online record to not stated. He claims that when he went back onto the MyDHR site his gender had been changed back to ‘male’, and so he changed it to indeterminate. He stated in evidence that he had to change it a number of times.
In his evidence, Mr Keene reported that an audit had been carried out by authorised officers from the ACT Health Directorate Digital Solutions Division. That audit suggested that Mr Hollmann had registered for the MyDHR system on 29 April 2021 with the male gender. This was changed to ‘Not Stated” on 20 August 2021 and changed again to “Indeterminate” on 5 October 2021. There have been no changes since. Policies and procedures applicable at that time only permitted staff at ACT Health to change a person’s gender on the system if they were instructed by the person themselves after confirming their identity. In response to cross-examination, Mr Keene stated that the audit had examined the records available for changes made on the system, but had not been a forensic audit that may have uncovered all intermediate or unauthorised changes.
Consideration
There is insufficient evidence to establish that the conduct of ACT Health following Mr Hollmann’s complaint to the Office of the Health Minister was discriminatory. To the extent Mr Hollmann was denied the opportunity to make a booking to receive a Pfizer vaccine dose by ACT Health staff refusing to make a booking or cancelling bookings, this was due to the restrictions placed by ATAGI on mixing vaccine types. Requiring callers to not be abusive when in contact with ACT Health staff is a reasonable condition to the provision of information or assistance.
Mr Hollmann does not claim that any abusive or unreasonable conduct on his part was due to his disabilities and should have been accommodated or other reasonable adjustments made by ACT Health staff. Instead, Mr Hollmann claims that he was reasonable with ACT Health staff, and it was they who had reacted unreasonably in insisting he was trying to obtain a different type of vaccine or was being unreasonable in his complaints about the treatment he had received to that point.
There is also insufficient evidence to establish that the reaction of ACT Health staff amounted to victimisation. While Mr Hollmann may be justified in his conclusion that he has been detrimentally affected by the conduct of ACT Health, at least with respect to the referral to the AFP, he has not established that conduct was because of his complaints about discriminatory treatment.

Imposition of isolation requirements after being identified as a close contact

On 20 or 21 of August 2021, Mr Hollmann’s mother visited a restaurant to pick up a takeaway order. Mr Hollmann estimates that his mother was inside for only 30 seconds. After noticing that the restaurant had been listed on an ACT government website as a site where a person had tested positive for COVID-19, Mr Hollmann rang and described the circumstances of his mother’s visit and he and his mother were told they had to isolate for a period of 14 days.
Mr Hollmann claims that after being required to isolate he rang the ACT government helpline for assistance, but they took two weeks to get back to him. He was unable to get a timely home delivery from the major supermarkets and so contacted Volunteering ACT, who Mr Hollmann understands was funded by the ACT government, for an emergency food hamper. When the hamper was delivered the delivery person was unable to access Mr Hollmann’s apartment building to leave the hamper outside his apartment or place it somewhere where Mr Hollmann could access the hamper while complying with isolation requirements. Mr Hollmann claims that they were not used to accommodate people with mobility issues.
Mr Hollmann’s submissions
Mr Hollmann claims that he and his mother were forced to isolate at least in part as a reprisal for his having complained about his treatment as a person with disabilities. Mr Hollmann contends that his mother was not exposed for the five‑minute period which he understood to be the minimum needed at the time to be required to isolate. It was his view that the people he spoke to about his mother’s possible exposure became more hostile and insistent that he and his mother isolate only after he mentioned his name.
Mr Hollmann claims that the ACT Government had discriminated against him by failing to provide reasonable access to food and supplies for people with a disability such as himself and his mother.
Respondent’s submissions
The respondent denies that the imposition of the requirement to isolate was in any way affected by Mr Hollmann’s disability or any complaints that he had raised about his treatment as a person with disability. Mr Hollmann had not provided sufficient details to understand why an emergency food hamper was unable to be delivered given the ability of the AFP to visit his apartment and the availability of other food deliveries during Mr Hollmann’s isolation period. In any event, the ACT Government was not responsible for the conduct of organisations which delivered the emergency food hampers.
Consideration
The Tribunal agrees that Mr Hollmann has not provided sufficient evidence to justify the claim that there was a deviation from the applicable policy or practice applicable to anyone who had been present at an exposure site in the circumstances reported by Mr Hollmann. There is no evidence before the Tribunal about the isolation requirements at the time or other evidence suggesting that imposition of an isolation period for him and his mother was influenced by his disability or his previous complaints. There is also insufficient evidence to justify the conclusion that any undue delay in staff from the emergency assistance line responding to his calls imposed a detriment due to his disability or was affected by previous complaints.
The Tribunal is also not satisfied that the provision of emergency assistance by the ACT Government to alleviate some of the difficulties of complying with isolation requirements discriminated against Mr Hollmann due to his disabilities. The food hamper was not organised or delivered by the ACT Government. To the extent the ACT Government may be responsible for the provision of the food hampers, Mr Hollmann has not been able to establish that he was unable to have food delivered due to his disability as opposed to the circumstances of access to his apartment building.

Refusal to admit assistance animals

Mr Hollmann also claimed that he had been refused access to COVID-19 tests due to the presence of his assistance animal. He tried to access the drive-through testing facility at Exhibition Park in Canberra (EPIC) with his mother and his assistance animal. He was told by the first security guard he encountered that he would not be able to be tested with a dog in the car, but was allowed to continue after informing the guard that his dog was an assistance animal. The second guard, however, and a third guard that became involved, informed Mr Hollmann that even assistance animals were not permitted. Mr Hollmann was forced to exit the line of cars and leave the facility, resulting in being yelled at by other drivers as there was no clearly defined exit path.
Mr Hollmann then attempted to receive testing at the testing facility in Weston Creek. Again, he was refused entry with his assistance animal, and after trying to discuss the issue for approximately 15 minutes he conceded the point and placed his assistance animal in his car with the windows down slightly due to the heat.
Mr Hollmann gave evidence that he was required to be tested for COVID-19 in order to be permitted to leave isolation after being identified as a close contact. Testing was required 7 and 14 days after potentially being exposed to the virus. Combining this information with screenshots of text messages notifying Mr Hollmann of COVID-19 test results enabled Mr Hollmann to identify the likely date of the testing as 28 August 2021.
Mr Hollmann provided the Tribunal with a number of documents evidencing the acceptance of his assistance animal on a number of flights and hotel stays. Mr Hollmann also stated at the preliminary hearing that his animal was accredited in Victoria, but he had not, at that stage, finalised accreditation in the ACT. The definition of assistance animal for the purposes of the Discrimination Act includes, by reference to regulation 2 of the Discrimination Regulation 2016, animals trained to assist a person with a disability to alleviate the effect of the disability and meet appropriate standards of hygiene and behaviour. The respondent did not raise any objection to classifying Mr Hollmann’s dog as an assistance animal and we accept that Mr Hollmann’s assistance animal meets that definition.
Respondent’s submissions
Witnesses for the respondent gave evidence that there was no consideration given to the impact of allowing animals when the EPIC testing facility was established due to the short time frames involved. There were, however, some complaints from staff concerned with feeling unsafe or concerned for the safety of persons being tested if they or the animal reacted to the confronting nature of the testing. A policy was introduced on 1 September 2020 applicable to all government-run testing sites which included the following restriction under the heading “Work Health and Safety”:
No pets are allowed inside any of the testing sites, including inside vehicles at drive-through sites.
The current policy, which commenced on 27 May 2022, includes the same restriction with the addition of “With the exception of Assistance dogs”. The witness for the respondent accepted that there may have been other versions of the original policy but was not aware of any, prior to the current policy, which allowed assistance animals. The witness was not able to identify whether there had been any complaints or other reasons why there had been a change to the policy with respect to assistance dogs. They suggested, however, that the time taken to reverse policy was reasonable given the range of clinic considerations included in the policy at the time and the limited opportunity to review the operation of the policy until after the high numbers of tests required had diminished. It was on this basis that the respondent submitted that preventing assistance animals was a reasonable condition of access to a testing facility.
Consideration
The respondent acknowledges that Mr Hollmann’s experience of not being able to access a testing site when accompanied by his assistance dog was in accordance with the policy in place from 1 September 2020 until 27 May 2022. Reliance on an assistance animal is included within the definition of disability in section 5AA of the Discrimination Act. Mr Hollmann was not directly discriminated against because of that reliance. However, by not allowing Mr Hollmann to bring his assistance dog with him when he was trying to access a testing facility, the respondent was imposing a condition – not being accompanied by any pet– which disadvantaged Mr Hollmann due to his reliance on the presence of his assistance dog.
As the current policy suggests, assistance animals are unlikely to pose a significant risk of harm to staff or patrons. As discussed below, Mr Hollmann was willing to be separated from his assistance animal to receive testing at the Weston Creek testing facility. However, requiring him to be without his assistance animal presents a significant disadvantage. In the absence of an additional reason the disadvantage to Mr Hollmann from excluding assistance animals from testing sites would seem disproportionate to alleviating the possible safety risks involved.
As the respondent submits, the original policy of excluding all animals from testing sites responded to the experience of allowing animals in testing sites and concern with the health and safety of staff and patients. The urgent conditions on which that policy was formulated and put into place, along with the number of operational and clinical considerations involved in its development, suggest that it was reasonable to not consider the appropriateness of distinguishing assistance animals.
The Tribunal acknowledges that the respondent was not able to justify why the policy was not changed as soon as those urgent conditions changed, particularly if there was no procedure in place to monitor the operation of the policy including by collecting complaints or other information relating to the number of assistance animals excluded from testing sites. However, establishing the unreasonableness of the condition at the time of the discriminatory conduct in question lies on Mr Hollmann. Mr Hollmann was not able to identify the basis on which the policy should have been changed prior to his attendance at the testing sites in August 2021. The Tribunal therefore is not able to conclude that it was unreasonable to exclude assistance animals at the time Mr Hollmann’s complaint arose.

Mobility access to Weston Creek testing site

Mr Hollmann’s visit to the Weston Creek testing facility in August 2021 also raised an issue relating to mobility access. After placing his assistance animal in the car, Mr Hollmann returned to the facility to be asked by the nurse admitting people into the facility “how high was your wheelchair, not sure it will fit under the desk”. The security guard was asked to wait with him while the nurse went into the facility. Mr Hollmann had to wait for what he estimates to be ten minutes in a small area between the front door of the facility and a door leading into the main area. He was concerned that his assistance animal had been left in the car on a hot day with the window open, his mother, who was waiting with him, was growing distressed and he was already frustrated after not being able to get tested earlier in the day at the EPIC testing facility. He lost his patience and left without getting tested. He received a test later that day at a pharmacy at Gold Creek.
Applicant’s submissions
Mr Hollmann claims that by being made to wait he was effectively denied access due to being in a wheelchair. He suggests that the nurse had forgotten about him, and that he may have had to wait for considerably longer. There was no reason given as to why the height of his wheelchair may have been a problem given he had had other tests in his wheelchair that didn’t involve having to fit under a desk.
Respondent’s evidence and submissions
The respondent’s witnesses confirmed that the Weston Creek testing facility was not an Access and Sensory clinic but was fully wheelchair accessible. There was no reason suggested for why Mr Hollmann’s wheelchair might not fit under a desk or otherwise be unsuitable for access to the testing facility. It was also not part of the policy or practice of ACT government testing facilities to make someone wait or otherwise deny testing due to concerns over abusive or threatening behaviour.
During cross-examination, Mr Hollmann was asked about a potential inconsistency in his evidence. During the preliminary hearing, Mr Hollman had described this incident at the Western Creek testing facility and stated that he was able to obtain a COVID-19 test later that afternoon at the Winnunga service. At the hearing, Mr Hollmann corrected that testimony by stating that he had a strong recollection that he went to a pharmacy at Gold Creek. Ms Costin put to Mr Hollmann that this suggested that his recollection of the day may be faulty or incomplete. Mr Hollmann denied that his evidence at the hearing was mistaken, particularly in relation to the incident at the Weston Creek testing facility.
Consideration
In our view Mr Hollmann’s evidence on this issue is credible. He was able to describe the incident at the Weston Creek testing facility in detail in a way which was substantially consistent with previous statements. While the date of the incident was not nominated by Mr Hollmann until the hearing, we consider it unlikely that reliable evidence would have been available to the respondent which may have contradicted or qualified Mr Hollmann’s recollection even if that date had been provided in sufficient time prior to the hearing. We therefore accept that Mr Hollmann was made to wait for approximately 10 minutes to check whether his wheelchair could be accommodated before he left the facility.
It was not suggested by the respondent that it should not be responsible for the nurse who asked Mr Hollmann to wait. Even if it is accepted that Mr Hollmann would have been admitted to the testing facility after having waited 10 minutes, this inconvenience may still be a form of indirect discrimination. Indirect discrimination involves the imposition of a condition or requirement which disadvantages a person due to them having a protected attribute. That disadvantage need not be so acute so as to effectively deny access to the service or facility in question. It is sufficient that, because of his lack of mobility, Mr Hollmann required a wheelchair to enter the facility. By being made to wait in order to check whether his wheelchair could be accommodated, Mr Hollmann was subject to a requirement that did not affect other patrons to the facility. The circumstances of having to wait in a confined area while other patrons walked past also caused a degree of emotional distress perhaps contributed to by Mr Hollmann’s psychological conditions.
While having to wait short periods to ensure accommodation of Mr Hollmann’s wheelchair may be considered a reasonable condition, in our view having to wait 10 minutes, with the possibility of having to wait far longer, was not reasonable in these circumstances. The facility was wheelchair accessible, and witnesses for the respondent were not able to identify any reason why the height of the wheelchair, or the use of a chair generally, might be a cause for concern in accessing the facility. In fact, the following evidence was given by Ms O’Brien, who was, at the relevant time, the Director of Nursing in the ACT:[10]
SENIOR MEMBER MEAGHER: Was there any reason why anyone would say you couldn't come in with your wheelchair?
WITNESS O’BRIEN: No.
SENIOR MEMBER MEAGHER: And if that happened it would be wrong?
WITNESS O’BRIEN: Yes.
[10] Transcript of proceedings, 22 March 2023, page 189
We therefore find that Mr Hollmann was indirectly discriminated against by the respondent by being forced to wait for at least 10 minutes before being permitted to enter the Weston Creek testing facility.

Mobility access to Garran testing site

Mr Hollmann also raised concerns about mobility access at the Garran testing site. Although not directly listed in his initial complaint to the ACT Human Rights Commission, it was accepted by the respondent that this claim may come within the concerns around mobility access to ACT government testing and vaccination sites raised by that complaint.
In his evidence provided to the Tribunal and at the hearing, Mr Hollmann describes visiting the testing facility in Garran in December 2021 to be tested before going to Sydney to watch the New Year’s Eve fireworks display. He was accompanied by his cousin and mother. He followed signs to disabled parking towards the front of the building, which lead to an area covered by loose gravel. The gravel was sufficiently deep to make it difficult to push his manual wheelchair through. Even his cousin, who Mr Hollmann described as very strong, struggled to push Mr Hollmann’s wheelchair through the gravel. Staff at the testing facility acknowledged the difficulties of moving through the gravel when Mr Hollmann raised concerns when emerging from the testing area.
Mr Hollmann also describes in material provided to the Tribunal a subsequent unsuccessful attempt to receive testing, this time with only his mother to assist him. His electric wheelchair was unable to move through the gravel without his mother’s assistance, and they were unable to travel the over-50 metres required to get to the ramp leading up to the front entrance of the facility.
At the hearing Mr Hollmann also stated that he had made two other attempts to get testing at the Garran site; one accompanied with a disability support worker when he was able, with that person’s assistance, to get into the testing site, and another unsuccessful visit with just his mother. Mr Hollmann described having to drive his electric wheelchair very quickly to travel over the gravel when returning to his car as painful and humiliating.
Mr Hollmann also provided the tribunal with a video made prior to the preliminary hearing in this matter which shows, as Mr Hollmann drove through the entrance to the facility, signs which indicated access to an Access and Sensory clinic in one direction, and disabled parking in another. Following the disabled parking sign led to an area with deep gravel. The video shows Mr Hollmann attempting to drive through the gravel and getting stuck. The video also briefly shows Mr Hollmann driving to the parking area for the Access and Sensory Clinic located at the other side of the facility, including the use of rubber tiles at an area labelled Access and Sensory parking only. Two sites labelled as disabled parking are visible at the end of the tiled area away from the entrance. Mr Hollmann stated that in his opinion the video represented the condition of the gravel surface at each of the times he had previously visited the site.
Mr Hollmann stated at the hearing that he did not see or talk to anyone upon driving into the facility or after parking whom he could ask for assistance in accessing the building. He did not attempt to access the Access and Sensory clinic located within the Garran facility as he was not sure that there was disabled access parking in that direction, there was no way to book an appointment at the clinic, and there was no indication that there would be people available to facilitate access.
Respondent’s evidence and submissions
Mr Colm Mooney, a witness for the respondent, acknowledged that the use of a gravel surface in the carpark of the Garran facility may cause difficulties with wheelchair access. However, he presented evidence that gravel was used due to the cost and time involved with establishing a more permanent surface. The Garran facility had been intended to handle an overflow of cases from the emergency ward due to the pandemic but had been converted to provide testing services. The facility had been exempted from the usual planning and development approval processes which would have required a more permanent surface. The higher than anticipated amount of rain in 2021 also required more frequent topping up and grading of the gravel surface to prevent potholes forming, particularly in areas where cars were turning.

Mr Mooney also presented evidence that it was intended that clinical staff would be available to assist individuals with access to the facility. There should have been a person at the road entrance to the facility to direct individuals, and, if they were alerted to or recognised the need for disabled access, were to alert clinical staff inside the building. Clinical staff were also available within and outside the front entrance to assist with the flow of people seeking testing. These staff were intended to also provide assistance with access where required.
In cross-examination, Mr Mooney acknowledged that the disabled parking at the front of the building required a person with mobility difficulties to travel approximately 58 metres across a gravelled surface, including where cars drove to exit the car park, to the base of the ramps leading up to the front doors. He also acknowledged that it may be possible that staff may be called away for a short period or otherwise not be available to arrange for or otherwise provide assistance. It was not clear in those circumstances how an individual requiring assistance would be able to request assistance from clinical staff.
Parking arrangements for the Access and Sensory clinic at the Garran facility had been established in December 2021. This included laying rubber tiles in the area where parking was available close to the intended entrance to that clinic. Under cross-examination, Mr Mooney could not explain why the signage for disabled parking was set at the far end of that tiled area, but stated that the total distance from that tiled area to the entrance was less than 23 metres over tiles or accessible ramps. Mr Mooney’s evidence was that the Access and Sensory Clinic did not start operating on that site until 17 February 2022.
The respondent submitted that the use of gravel on the surface of the car park was reasonable given the availability of assistance from clinical staff, and replacing the surface with something more accessible would involve an unjustifiable hardship. Mr Hollmann could, and did, have testing at other sites which did not involve navigating a gravel surface, including being able to access the Access and Sensory clinic at the Garran facility. Mr Hollmann should also have been alerted to the difficulties of moving across the surface after his initial visit where he had his cousin’s assistance. The respondent also submitted that it was unlikely that there was no one available to provide assistance during the four times that Mr Hollmann claims he visited the facility.
Consideration
It is clearly difficult for a person with Mr Hollmann’s mobility disabilities to be able to move across the gravel surface presented at the Garran facility without considerable assistance. In our view, even with the requirements of urgently establishing a temporary facility, it was unreasonable to require Mr Hollmann to move across the gravel without assistance in order to access the facility. The respondent did, however, intend for clinical staff to be available to provide that assistance to Mr Hollmann and hence mitigate any disadvantage Mr Hollmann may have otherwise suffered.
Mr Hollmann’s evidence is that he was not offered any assistance in accessing the facility. There was no-one available at the road entrance to the facility or in the proximity of the disabled car park to ask for assistance. Mr Hollmann was able to describe in reasonable detail at least one instance when he was only able to access the facility with the help of his cousin. While he was not able to provide precise dates of other visits to the Garran facility, he was able to describe the general circumstances of his visits with sufficient detail.
We recognise that the lack of dates and other precise details meant the respondent was not able to put forward evidence contradicting Mr Hollmann’s claims that he was unable to access the facility due to the difficulties in moving over the gravel surface. The respondent acknowledged the difficulties inherent in the surface used, and the assistance that may be required in moving across that surface. It is unlikely that evidence may have been available that would directly contradict Mr Hollmann’s account, particularly where it involves the absence of staff from what may be their appointed post. No evidence was provided that the respondent recorded all complaints, including those relating to mobility access, at the Garran facility such as that described by Mr Hollmann. We are prepared to accept Mr Hollmann’s account that he had considerable difficulty accessing the Garran facility and was prevented from accessing that facility on at least one occasion.
The issue than arises whether being able to provide reasonable access to the Garran facility would have imposed an unjustified hardship on the respondent. Section 52 of the Discrimination Act provides that discrimination on the ground of disability in relation to access to premises is not unlawful if the premises were constructed as to be inaccessible to a person with a disability and any alteration to provide access would impose unjustifiable hardship on the respondent. In assessing unjustifiable hardship, all the relevant circumstances of the particular case must be taken into account, including the nature of the benefit or detriment involved, the nature of the disability of the person concerned, and the financial circumstances and estimated expenditure needed by the respondent.[11] Even accepting that the gravel surface of the car park is included in the premises in question at the Garran facility, the Tribunal accepts that altering that premises to provide access to a person with a disability would impose an unjustifiable hardship to the respondent.
[11] Discrimination Act section 47
Similarly, section 53 of the Discrimination Act provides that discrimination on the ground of disability in relation to the provision of goods, services or facilities is not unlawful if it would be an unjustifiable hardship to require the respondent to provide the service in the special way required by Mr Hollmann’s disability. However, in the case of the provision of testing services at the Garran facility, the special way required by Mr Hollmann involves providing either a sufficiently accessible surface, or sufficient assistance to move across the surface provided. While it may not be possible to ensure that there is always a person present who will ask whether a person accessing the Garran facility requires assistance, additional information could have been provided for how individuals could alert clinical staff at the facility of their need for assistance. This could have been provided in signage at the disabled parking area or in the information available online about the facility. Alternatively, information could have been provided to alert a person with limited mobility of the availability of more accessible parking at the Access and Sensory Clinic available at the rear of the building and the assistance available to access the clinic.
Therefore, we find that, by providing for disabled parking that required Mr Hollmann to move over a gravel surface without assistance the respondent indirectly discriminated against Mr Hollmann. It would not have been an unjustifiable hardship for the respondent to have provided additional means to ensure that assistance or an alternative means of access to a suitable testing facility was available.

Orders

The Tribunal has found that the respondent indirectly discriminated against Mr Hollmann on at least two occasions, in requiring him to wait before being able to access the testing facility at Weston Creek, and by not adequately providing access to assistance to move across the gravel surface at the Garran testing facility. As we are satisfied that the respondent has engaged in an unlawful act for the purposes of the Human Rights Commission Act, section 53E(2) requires us to make one or more of the following orders:
(a)     that the person complained about not repeat or continue the unlawful act;
(b)     that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)     … that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
The Garran testing facility no longer operates and the area surrounding the facility has been or is being restored to its former use. We also do not regard being made to wait at the Weston Creek testing site as likely to be repeated. Neither is emblematic of a system fault which is likely to be repeated in future. We therefore do not consider it appropriate to make orders requiring the respondent to not repeat or continue the unlawful acts.
At the commencement of the hearing into this matter Mr Hollmann nominated a sum which he considered appropriate to compensate for the hurt and humiliation and economic loss caused by what he claimed was the respondent’s unlawful conduct. However, at the conclusion of the hearing he moderated his claim and emphasised that he was more interested in systemic change or otherwise trying to secure better outcomes for people with a disability in Canberra.
Mr Hollmann has not demonstrated that he incurred substantial economic loss or damage associated with the two instances of indirect discrimination we have found. He was able to get tested after leaving the Weston Creek testing facility, and he had other testing sites available to him other than the Garran facility.
In making an order for compensation under section 53E(2), the Tribunal must consider the inherent dignity of all people and the impact of the discrimination on the person’s dignity.[12] As the examples included in that provision suggest, the impact of discrimination can include distress, humiliation and loss of self-esteem. Mr Hollmann has given evidence that he suffered from each of these impacts as a result of the indirect discrimination he endured, particularly while having to wait at the Weston Creek testing facility. However, the Tribunal also recognises that on that occasion Mr Hollmann was only made to wait for a short period of up to ten minutes, and part of the distress he and his mother experienced was due to frustrations caused by other events which we have found did not constitute unlawful discrimination.
[12] Human Rights Act section 53E(3)(b)
Mr Hollmann also complained about the physical pain of travelling over the gravel car park at the Garran testing facility. He did not claim that he had suffered any extended or acute condition as a result.
In the absence of a reasonable act which may redress any loss or damage suffered by Mr Hollmann, we consider there should be a sum for appropriate compensation for the loss suffered by Mr Hollmann due to the unlawful acts of the respondent. It is clear the amount is to be compensatory not punitive, dependent on the facts of this case in light of the general standards prevailing in the community.[13] Useful guidance may be gained from other cases, and we have had regard to awards as set out in Kerslake v Sunol [2023] ACAT 18 ($4000) and Rep v Clinch [2021] ACAT 106 ($5000). The facts in those cases differed somewhat from this case.
[13] See Kovac v The Australian Croatian Club Limited (No.2) [2016] ACAT 4 at [76]
In Kovac v The Australian Croatian Club Limited (No. 2) there are examples of much higher sums being awarded where there is medial evidence of harm.[14] In Phillips v Australian Capital Territory (as represented by Chief Minister, Treasury and Economic Development Directorate),[15] an amount of $9000 was awarded where there was medical evidence of a worsening of the complainant’s mental condition, albeit for a limited period, due to the discriminatory behaviour.[16]
[14] [2016] ACAT 4 at [76]-[83]
[15] [2021] ACAT 22
[16] This amount was not disturbed on appeal: Australian Capital Territory v Phillips [2021] ACAT 122
In contrast, in Kidman v Casino Canberra Ltd,[17] the tribunal awarded $4000 for the personal distress, stress and sleepless nights due to the discriminatory conduct in that case. There was no evidence that the harm suffered amounted to a mental illness or injury, and the applicant in that case conceded that the effect on them was minimal. This award was upheld on appeal.[18]
[17] [2020] ACAT 50
[18] Casino Canberra Limited v Kidman [2022] ACAT 22
More recently an amount of $5000 described as nominal was awarded in Complainant 202012 v Australian Capital Territory (as represented by the Director-General, Community Services Directorate.[19] In our opinion $5000 may be considered more than nominal but seems to be similar to amounts awarded in cases where there is no demonstrated ongoing physical, psychological or economic harm caused by the discriminatory conduct. Here Mr Hollmann did not seek to elaborate on the impact on him of the impugned conduct beyond expressing the frustration and disappointment any reasonable person in Mr Hollmann’s position would have felt on both occasions. Additionally, he was required to attend the Tribunal multiple times and be cross‑examined. On more than one occasion he was visibly distressed. While we recognise that some of Mr Hollmann’s concerns were difficult for the respondent to address in detail, rather than take an adversary approach to all of his claims, the matter may well have been handled by written explanations of the issues facing the respondent and an appropriate apology.
[19] [2023] ACAT 17.
Having regard to the other cases to which we have referred we are of the opinion that an amount of $5,000 is appropriate and we will so order.
………………………………..

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

Date(s) of hearing:	21 March 2023 – 22 March 2023
Applicant:	In person
Counsel for the respondent:	Ms A Costin
Solicitors for the respondent:	ACT Government Solicitor