SCARBOROUGH POLICE AND CITIZENS YOUTH CLUB
[2006] WASAT 38
•16 FEBRUARY 2006
SCARBOROUGH POLICE AND CITIZENS YOUTH CLUB [2006] WASAT 38
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 38 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOT:53/2004 | DETERMINED ON THE PAPERS | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) | 16/02/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SCARBOROUGH POLICE AND CITIZENS YOUTH CLUB |
Catchwords: | Application for exemption – Impairment – Proposal to build mezzanine floor in gym where not accessible to persons in wheelchairs – Tribunal satisfied proposal covered by exception in s 66K(2) – Exemption not necessary or appropriate |
Legislation: | Associations Incorporation Act 1987 (WA) Equal Opportunity Act 1984 (WA), s 4, s 4(1), s 4(4), s 66A, s 66K, s 66K(1), s 66K(2), s 66J, s 66J(2), s 66M, s 66M(2), s 66M(5), s 135, s 135(1), s 135(3), s 135(6) Equal Opportunity Regulations 1986 (WA), reg 24 State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) |
Case References: | IW v City of Perth (1997) 191 CLR 1 Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : SCARBOROUGH POLICE AND CITIZENS YOUTH CLUB [2006] WASAT 38 MEMBER : MS J TOOHEY (SENIOR MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 16 FEBRUARY 2006 FILE NO/S : EOT 53 of 2004 BETWEEN : SCARBOROUGH POLICE AND CITIZENS YOUTH CLUB
- Applicant
Catchwords:
Application for exemption – Impairment – Proposal to build mezzanine floor in gym where not accessible to persons in wheelchairs – Tribunal satisfied proposal covered by exception in s 66K(2) – Exemption not necessary or appropriate
Legislation:
Associations Incorporation Act 1987 (WA)
Equal Opportunity Act 1984 (WA), s 4, s 4(1), s 4(4), s 66A, s 66K, s 66K(1), s 66K(2), s 66J, s 66J(2), s 66M, s 66M(2), s 66M(5), s 135, s 135(1), s 135(3), s 135(6)
Equal Opportunity Regulations 1986 (WA), reg 24
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
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Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : N/A
Solicitors:
Applicant : N/A
Case(s) referred to in decision(s):
IW v City of Perth (1997) 191 CLR 1
Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782
Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 The Scarborough Police and Citizens Youth Club (SPCYC) applied to the Tribunal for an exemption from s 66K(1) of the Equal Opportunity Act 1984 (WA) (the Act) which makes it unlawful to discriminate against a person on the ground of their impairment when providing goods or services or making facilities available.
2 The SPCYC wanted to expand their gym by adding a mezzanine floor but could not afford the cost of installing a lift so as to make it accessible to persons in a wheelchair. They did not want to breach the Act and so, before proceeding with the proposal, they applied for an exemption from the impairment provisions in the Act.
3 The Tribunal decided that the proposal came within the exception in s 66K(2) of the Act which, in effect, provides that it is not unlawful to discriminate against a person on the ground of their impairment when providing them with goods or services, or making facilities available, if doing so in the special manner needed would impose unjustifiable hardship on the provider.
4 Because the proposal came within an exception to the Act, it did not constitute unlawful discrimination within the meaning of the Act. It was therefore not necessary for the SPCYC to obtain an exemption under s 135 which applies only to unlawful conduct.
Background
5 The Scarborough Police and Citizens Youth Club (the SPCYC) has applied to the Tribunal for an exemption from the operation of s 66K(1) of the Equal Opportunity Act 1984 (WA) (the Act) which makes it unlawful to discriminate against a person on the ground of their impairment in the provision of goods, services or facilities.
6 The application was lodged with the (then) Equal Opportunity Tribunal on 19 November 2004. On 8 December 2004 and 22 December 2004, preliminary hearings in respect of procedural matters and the evidence required of the SPCYC were conducted by that Tribunal.
7 On 1 January 2005, the functions of the Equal Opportunity Tribunal were assumed by the State Administrative Tribunal by virtue of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA).
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Submissions and evidence
8 Notice of the application, as required by s 135(3) of the Act, was given in an advertisement in The West Australian newspaper on 19 February 2005. The notice outlined the reasons the exemption was sought and advised that any person wishing to become a party to the application should notify the Tribunal by 10 March 2005. No response to the notice was received by the Tribunal.
9 The submissions of the SPCYC are set out in attachments to the application and in further written submissions. As well, the Tribunal visited the SPCYC on 15 September 2005 and inspected the premises.
10 The SPCYC is located within a community centre owned by the City of Stirling. It is an association incorporated under the Associations Incorporation Act 1987 (WA). It is a member of the Federation of Western Australian Police and Citizens Youth Clubs (Inc) and part of the Crime Prevention Program run by the Western Australian Police. It relies entirely on donations and grants, and has to raise approximately $17 000 each month in order to continue to operate. It does this with some difficulty as, according to Constable Neville Fern, the manager of the SPCYC, it is in a relatively affluent area and does not attract the same level of donations and support that PCYCs in some less affluent areas are able to attract.
11 The SPCYC runs various sporting and fitness activities for people of all ages. Its facilities include a small gym which comprises the usual sorts of equipment including six exercise bikes, four stepping machines and four walking machines. The present floor space is inadequate for the number of people using the gym and more space is needed. The SPCYC proposes to build a mezzanine floor within the gym for use as a "cardio fitness room" comprising treadmills, exercise bikes and stepping machines.
12 The SPCYC has received a quote for approximately $49 000 (plus GST) to build the mezzanine floor, which is considerably more than the $30 000 it originally allocated in its budget. The SPCYC hopes to reduce some of the cost by fundraising and by doing some of the work themselves. The cost of installing a lift which would make the mezzanine floor accessible to persons using wheelchairs would be an additional $30 000 approximately.
13 The exemption is sought on the basis that installing a lift to make the mezzanine floor accessible to persons in a wheelchair would impose
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- financial hardship. The SPCYC says that, at the end of each month, the funds raised from grants and donations are mostly expended and they simply haven't the funds to meet the cost of a lift. Moreover, it would be financially unviable for the SPCYC to spend approximately $30 000 on infrastructure for premises they do not own.
14 The SPCYC says that measures to be put in place will mean that no person in a wheelchair will be disadvantaged by moving most of the equipment on to the mezzanine floor. The equipment on the mezzanine floor will be replicated on the ground floor where it is proposed to keep one exercise bike, one stepping machine and one walking machine which will be accessible to people in wheelchairs who will be given priority in using them. The gym is supervised at all times and the machines are close to the desk where the supervisor is located. At present the supervisor ensures that any person in a wheelchair has priority for use of those machines. In all other respects the gym has disabled and wheelchair access including ramps, hand rails and wheelchair-accessible toilets.
15 In support of their application, the SPCYC submitted to the Tribunal a letter from a regular user of the gym who is in a wheelchair; he states that staff are always willing to help him and, from the point of view of a disabled person, it would not disadvantage anyone if the mezzanine floor were built and some of the equipment put there; there is sufficient equipment for some to be left on the ground floor for people like himself. He asks the Tribunal to consider the application favourably.
Submissions made by the Commissioner
16 By virtue of reg 24 of the Equal Opportunity Regulations 1986 (WA), the Commissioner for Equal Opportunity (the Commissioner) 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.
17 By an affidavit dated 28 April 2005, the Commissioner made submissions in relation to the application. She stated that, in effect, the SPCYC was seeking to rely on the defence provided in s 66K(2) of the Act; it appeared also that the defence provided by s 66J(2) might be relevant, as might that in s 66M(2). She submitted that the Tribunal should not exercise its discretion under s 135 unnecessarily; that if conduct clearly does not constitute discrimination, or comes within one of the statutory exceptions, there is no need for the conduct to be exempted.
18 The Commissioner submitted that, if after considering all relevant information available to it the Tribunal were to decide to grant an
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- exemption, it should not exceed a period of time within which the SPCYC might reasonably be expected to review the funding available for the installation of a lift; that period might be less than the maximum five years for which an exemption can be granted; further, a condition should be imposed requiring the SPCYC to ensure that any person unable to get access to the mezzanine floor was not disadvantaged in getting access to equivalent facilities on the ground floor.
The law
19 Section 135 provides that the Tribunal may grant an exemption from the operation of a specified provision in the Act. An exemption may be granted subject to 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; and it may be granted for a period not exceeding five years: s 135(1), s 135(3) and s 135(6).
20 The Act itself offers no further guidance as to the exercise of the exemption power. However, certain matters are clear.
21 In the first place, the exemption must be necessary. Unless the conduct sought to be exempted would constitute discrimination within the meaning of the Act, there is no unlawful conduct for which an exemption need be sought: an exemption is not necessary, and the matter need be taken no further: Stevens v Fernwood Fitness Centres Pty Ltd(1996) EOC 92-782.
22 Section 66A makes it generally unlawful to discriminate against a person on the ground of impairment. Section 66K makes it in particular unlawful to discriminate on the ground of impairment in the provision of goods or services or the availability of facilities. Section 66K provides that:
"(1) 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."
23 Section 66K(2) 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."
25 The Commissioner has referred also to s 66M, which concerns clubs and incorporated associations, and to the exception provided in s 66M(5). The SPCYC is an incorporated association but it is not a club for the purposes of the Act as it does not sell liquor: s 4. Again, because the Tribunal is satisfied that the exception in s 66K(2) applies here, it is not necessary to decide whether s 66M(5) applies other than to note that, were it necessary to decide, the Tribunal would be satisfied that the SPCYC could make out a case of "unjustifiable hardship" in the same way as for the purposes of s 66K(2).
26 Section 4(4) of the Act provides that:
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- "In determining what constitutes 'unjustifiable hardship' for the purposes of Part IVA [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."
27 "Services" is defined in the Act as a list of services including "services relating to entertainment, recreation or refreshment": s 4(1). The High Court has said that, subject to the proviso that a court or tribunal should not give the term an unreasonable or unnatural construction, if the term is capable of applying to an activity, a court or tribunal should hold that that activity is a service for the purposes of the Act: IW v City of Perth (1997) 191 CLR 1 at 12.
28 "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.
Findings and reasons
29 An exemption is only necessary, and can only be granted, in relation to conduct which would be otherwise unlawful: Stevens v Fernwood Fitness Centres Pty Ltd(1996) EOC 92-782.
30 The Tribunal is satisfied that, in providing a gym for use by members of the public, the SPCYC provides a service and a facility within the meaning of s 66K.
31 The SPCYC says that, but for the cost of approximately $30 000, which they cannot afford, they would install a lift, making the mezzanine floor accessible to everyone. The Tribunal accepts that this is so: the SPCYC generally, and the gym in particular, is made as accessible as possible to everyone, and arrangements are in place to ensure persons in wheelchairs have priority for using the equipment. The Tribunal accepts that the SPCYC takes it obligations under the Act seriously. The Tribunal also accepts that the SPCYC is not in a position to meet the cost of installing a lift to the mezzanine floor and that, even if it could meet some
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- or all of the cost, it would not be financially viable to do so in premises it does not own.
32 In effect, the SPCYC is seeking to rely on the defence in s 66K(2) which provides that conduct which would be unlawful under s 66K(1) is not unlawful if the service cannot be performed or the facility made available in the special manner necessary without causing unjustifiable hardship.
33 In determining what constitutes "unjustifiable hardship", the Tribunal is required to take into account all relevant circumstances 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 required to be spent by the person claming hardship.
34 The Tribunal is satisfied that any detriment likely to be suffered by any person with an impairment, in particular any person in a wheelchair, on account of the proposed mezzanine floor, would be negligible. The facilities on the mezzanine floor will be replicated on the ground floor and persons in wheelchairs given priority in using them; no detriment of any substance will be suffered.
35 The Tribunal is also satisfied that, in the financial circumstances of the SPCYC, the amount required to be spent in order to make the mezzanine floor accessible to persons in a wheelchair would impose financial hardship on the SPCYC for little, if any, benefit to those using the gym.
36 The Tribunal is satisfied that requiring the SPCYC to install a lift would be to impose unjustifiable hardship and that the exception in s 66K(2) therefore applies.
Conclusion
37 The Tribunal is satisfied, on the evidence before it, that the exception in s 66K(2) of the Act applies to the proposed mezzanine floor. As the proposed conduct would not be unlawful under the Act, an exemption is not necessary or appropriate. The application is therefore dismissed.
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I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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