RV and PL
[2006] WASAT 91
•6 APRIL 2006
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 Opportunity Act 1984 (WA) provided for an exception on account of the age of the building. Any discrimination in these circumstances was not unlawful and no exemption was necessary.
In relation to discrimination on the ground of impairment in the provision of goods, services and facilities, the Tribunal accepted that the construction of a lift to the upper floor would impose a burden on the applicant but it was not satisfied the applicant had made out a case of financial hardship such that the exception on that ground applied. However, the Tribunal decided that, in the circumstances, an exemption should be granted for two years on the conditions proposed by the applicant.
Background
The Shire of York (the applicant) has applied for exemption from s 66J and s 66K of the Equal Opportunity Act 1984 (WA) (the Act) which make it unlawful to discriminate against a person on the ground of their impairment in relation to access to places and vehicles, and in the provision of goods, services and facilities.
The exemption is sought because the upper floor of the York Town Hall, which incorporates areas for council chambers, a kitchen and meeting room, a foyer and display area, and a dress circle overlooking the main hall, is not wheelchair accessible or readily accessible by anyone who cannot climb the stairs by which access to the upper floor is gained.
The application was lodged with the Tribunal on 10 January 2007. Notice of the application, as required by s 135(3) of the Act, was given in an advertisement in the West Australian newspaper on 14 February 2007. The notice outlined why the exemption was sought and advised any person wishing to become a party to the application to notify the Tribunal by 26 March 2007. No‑one has notified the Tribunal of any interest in the application.
The Tribunal is satisfied that persons who might have an interest in the proceedings have had an opportunity to apply to be joined as parties.
The application is supported by documents including an affidavit of an architect who is a registered consultant for heritage matters with the Heritage Council of Western Australia; minutes of relevant Council meetings; financial statements and budget information; architectural plans; and related documents.
The Tribunal is satisfied that sufficient relevant information has been provided by the applicant by way of submissions and supporting documents to enable it to conduct this proceeding on the basis of the documents before it: s 60(2) State Administrative Tribunal Act 2004 (WA). As well, the Tribunal has visited the Town Hall and seen for itself its layout and facilities.
The applicant's submissions
The York Town Hall was officially opened in 1911. It is recognised by the Heritage Council of Western Australia as a building of cultural heritage significance and is a nationally recognised landmark. It has several heritage listings including a permanent entry on the Register of Heritage Places, National Trust Classification, and inclusion in the Municipal Inventory and the Register of National Estate.
The Town Hall serves various purposes. The foyer and entry hall on the ground floor is used by the York Visitors Centre as a tourist information centre and is visited by more than 80,000 people each year. The main and lesser halls, also on the ground floor, are used most days by community groups for displays, meetings, dances and other functions.
Access to the upper floor is by means of a sweeping internal timber staircase or an external iron staircase which was added some years ago. It is used less often than the ground floor, for overflow displays from the main hall and for occasional community meetings and functions. As well as the rooms used for meetings, it has a dress circle overlooking the main hall with several rows of seats which offer a good view of events in the main hall below.
Council meetings were held in a room on the upper floor from 1911 until 2004 when the question of access arose because one councillor used a wheelchair. To make the upper floor accessible would have involved installing a lift from the ground floor. Council debated the issue at some length in 2004 and quotes for a lift were obtained. It was recognised that the building's heritage listings meant that any decision to proceed would be subject to obtaining the necessary approvals.
Depending on the type of lift, one estimate obtained by the applicant in 2004 put the cost of a lift at approximately $70,000 plus installation and construction at $40,000 ‑ $50,000; others put the total cost as high as $424,500. Council considered the cost prohibitive and decided against taking the matter further. However, because it is obliged by the Local Government Act 1995 (WA) to open its Council meetings to the public (with limited exceptions), in 2004 the applicant moved the meetings to a room on the ground floor where they have been held since.
Since the question of access to the upper floor was raised in 2004, the applicant has advised groups wanting to use rooms in the Town Hall that the upper floor is not accessible to some people with mobility impairments and it makes rooms on the ground floor available if required. As a result, no person has been precluded from attending any council meeting or other function; the only identifiable detriments to a person who cannot gain access to the upper floor are that they cannot see the whole of a culturally and historically significant building for themselves and they miss out on the view of the main hall from the dress circle.
In contrast to the upper floor, the ground floor of the Town Hall, including the entry, the main and lesser halls, meeting rooms, kitchen and toilets is fully wheelchair accessible. At the same time, the applicant is in the process of building new, fully accessible, premises where council meetings and community functions and activities will be held.
The applicant recognises that some people with impairments are precluded from access to the upper floor and says that it has no objection in principle to installing a lift, subject to any heritage requirements. However, it says, other demands on its limited finances have greater priority. Its budget for the year ending June 2007 shows revenue of $6.8 million and expenses of $8.4 million.
The applicant undertakes, if granted the exemption sought, to modify its Conditions of Hire form so that prospective hirers of the facilities are notified about the lack of access to the upper floor and so alternative facilities can be arranged on the ground floor. This would formalise the current informal arrangement whereby people are notified orally about the lack of access. The applicant further undertakes to seek funding for the installation of the lift.
The views of the Commissioner for Equal Opportunity
By virtue of reg 24 of the Equal Opportunity Regulations 1986 (WA), the Commissioner for Equal Opportunity is a party to an application for exemption unless she lodges an affidavit setting out the reasons why she does not wish to be a party to the application.
Early in these proceedings, the Commissioner filed an affidavit setting out her response to the application and advising that she wished to remain a party to it. She stated that, although the applicant had not specified in its application the particular sections from which it sought exemption, given the nature of the application, she believed that exemption was sought from s 66J and s 66K of the Act.
Subsequently, the Commissioner notified the Tribunal by affidavit that she had given further consideration to the applicant's proposals and submissions and she had resolved to withdraw from the proceedings; she neither endorsed nor opposed the application but would leave it to the Tribunal to determine.
Exemptions from the Act
Section 135 of the Act enables the Tribunal to grant an exemption from the operation of a specified provision in the Act. The effect of an exemption is that an act which would otherwise be rendered unlawful by the Act will not be unlawful: s 137.
The exemption must be necessary. Unless the conduct sought to be exempted would constitute unlawful discrimination within the meaning of the Act, an exemption is not necessary: Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782.
An exemption may be granted for up to five years on such terms and conditions as the Tribunal orders; it may be varied on the application of the person to whom it is granted or at the instance of the Tribunal; it may be expressed to apply only to such circumstances, or in relation to such activities, as are specified in the order: s 135(1), s 135(3) and s 135(6).
Discrimination on the ground of impairment
Section 66A of the Act sets out the meaning of discrimination on the ground of impairment.
By s 66A(1), direct discrimination occurs when a person treats another less favourably on the ground of ‑
(a)their impairment;
(b)a characteristic that appertains generally to persons with the same impairment; or
(c)a characteristic that is generally imputed to persons with the same impairment,
than in the same, or not materially different, circumstances, they treat or would treat a person who does not have that impairment.
By s 66A(3), indirect discrimination on the ground of impairment occurs when the discriminator requires the aggrieved person to comply with a requirement or condition ‑
(a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Access to places and vehicles
Section 66J of the Act makes it unlawful to discriminate on the ground of another's impairment:
(a)by refusing to allow that person access to or the use of any place that the public or a section of the public is entitled or allowed to enter or use, for payment or not;
(b)in the terms on which the discriminator is prepared to allow the aggrieved person access to or the use of any such place;
(c)by refusing to allow the aggrieved person the use of any facilities in any such place that the public or a section of the public is entitled or allowed to use, for payment or not;
(d)in the terms on which the discriminator is prepared to allow the aggrieved person the use of any such facilities; or
(e)by requiring the aggrieved person to leave or cease to use any such place or any such facilities.
Section 66J(2) of the Act provides an exception in that the provision does not apply where the discrimination arises out of the fact that the premises, or part of them, are inaccessible to an impaired person or because the owner fails to ensure that every part of the premises or vehicle is accessible. This exception does not cover buildings to which the Uniform Building Amendment By‑laws (No. 2) 1985 (WA) apply.
The Uniform Building Amendment By‑laws (No. 2) 1985 (WA) were repealed and replaced by the Building Regulations 1989 (WA). By virtue of reg 5, the Building Code of Australia (Code) Pt D3 of which concerns requirements for access for people with disabilities, applies to and in relation to specified buildings. However, the Regulations do not apply to any building the plans, drawings and specifications of which were approved before the Regulations came into operation in the district or in that part of the district in which the building is situated: reg 4.
The Town Hall was constructed some time before 1911, before the Regulations came into effect and it is not subject to the requirements in the Code. The exception in s 66J(2) of the Act therefore applies. There is no unlawful discrimination by virtue of this provision and no exemption is required.
Goods, services and facilities
Section 66K(1) of the Act provides that it is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's impairment ‑
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 66K(2) of the Act provides the following exception to this:
"(2)This section does not apply to discrimination against a person on the ground of impairment in relation to the provision of a service or facility where, in consequence of the person's impairment, the person requires the service to be performed or the facility to be made available in a special manner that without unjustifiable hardship:
(a)cannot be provided by the person providing the service or making the facility available; or
(b)cannot be provided by the person providing the service or making the facility available except on more onerous terms."
"Services" in the Act include services relating to recreation and services of the kind provided by a government or public authority or a local government body: s 4.
Subject to the proviso that a court or tribunal should not give the term an unreasonable or unnatural construction, if a term is capable of applying to an activity, a court or tribunal should hold that an activity is a service for the purposes of the Act: IW v City of Perth (1997) 191 CLR 1 at [12].
"Facility" is not defined in the Act. Its ordinary meaning is "an opportunity, or the equipment or resources for doing something; an establishment set up to fulfil a particular function or provide a particular service": The Australian Oxford Dictionary (2nd ed), Oxford University Press, Melbourne, 2004.
The ability of ratepayers to attend and participate in council meetings has been held to be a service: Byham v Preston City Council (1991) EOC 92-377 (Byham).
The Tribunal is satisfied that, in holding Council meetings, providing tourist and community information, and making rooms available for community functions and activities, the applicant provides services and facilities within the meaning of the Act.
Is a "requirement or condition" imposed?
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.
The Tribunal is not satisfied on the evidence before it that the exception for financial hardship applies in this case.
Should the exemption be granted?
The Tribunal has a general power, unconstrained by anything other than the objects, scope and purpose of the Act, to grant an exemption; it may take into account any considerations which it considers would justify the commission of the conduct which would otherwise be unlawful: Commissioner for Equal Opportunity –v‑ ADI Limited [2007] WASCA 261 (ADI). "[P]rovided there is a rational basis for the discriminatory conduct, it will fall to the Tribunal to determine whether the interests to be served by permitting that conduct outweigh the detriment which flows from the discriminatory conduct": ADI (above) per Martin CJ at [72].
Since the applicant moved the Council meetings to rooms on the ground floor, no person with an impairment is denied the opportunity to attend and participate in Council meetings. The applicant also provides rooms on the ground floor to any individual or group wanting to use a room for any community purpose. The Tribunal accepts that the applicant ensures that individuals and groups wanting to use the upper floor are advised about the lack of access and are allocated rooms on the ground floor if they require them. It cannot be said that any person suffers actual detriment any longer on this account.
It remains that a person with a mobility impairment who wants to view proceedings in the main hall from upstairs, or just to visit the upper floor out of general interest in the heritage building, is effectively precluded from doing so. Having said that, proceedings in the main hall can be viewed from within the hall itself where there is seating for that purpose, and the majority of the building's features of architectural and historical significance can be viewed from the ground floor.
The Tribunal accepts that it would impose a financial burden on the applicant to install a lift. It accepts that the applicant intends to seek funding to meet the cost. It is satisfied, in all the circumstances, that the exemption should be granted for two years on condition that the applicant take all reasonable steps to secure, or make available, funding for the installation of a lift and that it modify its Conditions of Hire form so that persons wanting to use the facilities are formally notified about the lack of access and can seek alternative rooms on the ground floor.
Order
The applicant is granted an exemption from s 66J and s 66K of the Equal OpportunityAct 1984 (WA) for a period of two years on condition that it:
(i)take all reasonable steps to secure, or make available, funding for the installation of a lift; and
(ii)modify its Conditions of Hire form so that persons wanting to use its facilities are formally notified about the lack of access to the upper floor and so that alternative rooms on the ground floor can be made available to them.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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