RV and PL - [2006] WASAT 91

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: RE: APPLICATION FOR EXEMPTION UNDER S 135 OF THE EQUAL OPPORTUNITY ACT 1984; EX PARTE SHIRE OF YORK [2008] WASAT 91

MEMBER: MS J TOOHEY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 2 MAY 2008

FILE NO/S: EOA 3 of 2007

EX PARTE
SHIRE OF YORK
Applicant

Catchwords:

Discrimination on the ground of impairment Heritage listed public building Access to upper floor by staircase only Applicant claimed financial hardship precluded construction of lift Application for exemption from provisions concerning access to places and vehicles Exception provided in legislation No unlawful discrimination Exemption not required Application for exemption from provisions concerning goods, services and facilities Exception provided in legislation for financial hardship Cost of lift a burden but ground of financial hardship not made out Exemption required if conduct not to be unlawful Appropriate in the circumstances that exemption be granted

Legislation:

Building Code of Australia, Pt 3
Building Regulations 1989 (WA), reg 4, reg 5
Equal Opportunity Act 1984 (WA), s 4, s 66, s 135, s 137
Equal Opportunity Regulations 1986 (WA), reg 24
Local Government Act 1995 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Uniform Building Amendment By-laws (No 2) 1985 (WA)

Result:

Exemption granted for two years on conditions

Category: B

Representation:

Counsel:

Applicant: Mr R Hooper (Acting as Agent)

Solicitors:

Applicant: N/A

Case(s) referred to in decision(s):

Byham v Preston City Council (1991) EOC 92-377
Commissioner for Equal Opportunity –v‑ ADI Limited [2007] WASCA 261
IW v City of Perth (1997) 191 CLR 1
State of New South Wales v Amery [2006] HCA 14
Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782
Waters v Public Transport Corporation (1991) 173 CLR 349

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Shire of York sought exemption from the provisions of the Equal Opportunity Act 1984 (WA) which make it unlawful to discriminate against a person on the ground of impairment in relation to access to places and vehicles, and in the provision of goods, services and facilities.
The exemption was sought because the upper floor of the York Town Hall, which is used for various public purposes, is not wheelchair accessible or readily accessible by someone who cannot climb the stairs by which access to it is gained. The applicant said it could not afford the cost of installing a lift. It said it had moved its Council meetings to the ground floor and would provide rooms on the ground floor for any other meeting or function if an attendee could not negotiate the stairs to the upper floor. In all other respects the building had disability access.
The Tribunal decided that no exemption was necessary from the provisions relating to discrimination on the ground of impairment in relation to access to a public place. This was because the Equal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] WASAT 91
Decision Date: 6 APRIL 2006

CaseChat Overview and Summary

In the case of RV and PL, the applicants sought a review of a guardianship order concerning PL, who is under the care of the Public Advocate as a limited guardian. The applicants, who are PL’s relatives, sought leave to apply for a review of the guardianship order, which appointed the Public Advocate with specific functions regarding PL’s accommodation, contact, and services. The applicants aimed to challenge the Public Advocate’s role as a limited guardian and the validity of the guardianship order itself.

The primary legal issue before the court was whether the Public Advocate was correctly appointed as a limited guardian for PL and whether the guardianship order was appropriate and necessary. Additionally, the court had to determine if the Public Advocate’s limited guardianship functions were correctly defined and whether the order met the statutory requirements for such appointments. The court also had to consider if the decision to grant leave to the applicants to seek a review was warranted.

The court found that the Public Advocate was correctly appointed as a limited guardian for PL, with the specified functions concerning accommodation, contact, and services. The court confirmed that the guardianship order was valid and appropriate, considering the statutory framework governing such appointments. The court reasoned that the Public Advocate’s role was necessary to ensure PL’s welfare and that the specific functions assigned were appropriate given PL’s circumstances. The court also determined that the decision to grant leave to the applicants to seek a review was justified due to the significant implications of the guardianship order on PL’s life and the applicants' close relationship with PL.

The final orders of the court confirmed the Public Advocate’s role as a limited guardian and upheld the guardianship order. The court granted the applicants leave to apply for a review of the guardianship order, acknowledging the importance of the matter and the applicants’ standing to seek such a review. The court’s decision provided clarity on the scope of the Public Advocate’s functions and the legal requirements for guardianship orders in similar cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MS J

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Ratio Decidendi

Legal Principle Established

Established by: MS J

Courts and tribunals have taken a liberal approach to the interpretation of "requirement or condition" in equal opportunity legislation. It should be given a broad rather than a technical meaning: Waters v Public Transport Corporation (1991) 173 CLR 349 per Dawson and Toohey JJ at 393; State of New South Wales v Amery [2006] HCA 14 per Gummow, Hayne and Crennan JJ at [63]. A person providing goods or services should be regarded, in the context of equal opportunity legislation, as imposing a requirement or condition "when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed": Waters (above) per McHugh J at 407. The Tribunal is satisfied that the applicant imposes on persons wanting access to the upper floor of the Town Hall a requirement that they do so by means of the staircase (and see: Byham (above)). It is a requirement with which a substantially higher proportion of persons without mobility impairments are able to comply, and which is not reasonable given that a Town Hall is for all ratepayers and local people and is substantially maintained by public monies. Although there is no evidence about the number of elderly and disabled persons in the area, it is reasonable to assume that at least some local people are unable to gain access to the upper floor at present. As well, the building attracts more than 80,000 visitors each year many of whom would be drawn by its recognised cultural and historical significance. At least some of them would not be able to visit the upper floor. Unless the exception on the ground of financial hardship applies, then absent the exemption sought, the applicant will be in breach of the Act. Does the exception on the ground of financial hardship apply? In determining what constitutes "unjustifiable hardship" for the purposes of discrimination on the ground of impairment, "all relevant circumstances of the particular case shall be taken into account, including the nature of the benefit or detriment likely to accrue or be suffered by all persons concerned, the nature of the impairment of the person concerned and the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship": s 4(4). The applicant has submitted information about its income and expenditure and it is evident that there are many demands on its budget. The cost of a lift is considerable and would no doubt impose a burden on the budget and would mean the applicant could not meet some other expenses. However, it is not enough merely to state that a particular cost would impose financial hardship. Although many of the items of expenditure such as road maintenance cannot be questioned, capital expenditure in the 2006‑2007 budget included items such as air‑conditioning in one building, repainting of another and so on. The applicant has made certain decisions about allocation of its budget and it could have decided that a lift in the Town Hall should take priority.