Storey v Blacktown City Council
[2023] FedCFamC2G 1001
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Storey v Blacktown City Council [2023] FedCFamC2G 1001
File number(s): SYG 2336 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 3 November 2023 Catchwords: HUMAN RIGHTS – Application to summarily dismiss claims made against a local council purportedly pursuant to ss 5, 6, 7, 11, 29, 30, and 32 of the Disability Discrimination Act 1992 (Cth) – (DD Act) – proceeding dismissed to the extent it relates to claims under those provisions – directions made for the filing of written submissions on whether conduct that amounts to victimisation within the meaning of s 42(2) of the DD Act constitutes “unlawful discrimination” within the meaning of s 3 of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and, if not, whether the Court has jurisdiction under s 46PO(1) of the AHRC Act to hear the claims the applicants make purportedly on the basis of s 42 of the DD Act. Legislation: Acts Interpretation Act 1901 (Cth) s 19(1)
Australia Human Rights Commission Act 1986 (Cth) ss 3, 46PO(1)
Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 6, 7, 10, 11, 29, 30, 31, 32, 42
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Circuit and Family Court of Australia (Division 2)(General Federal law) Rules 2021 (Cth) r 13.13Cases cited: Hudson v Australian Broadcasting Corporation [2016] FCCA 917
Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473
Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62
Division: General Number of paragraphs: 71 Date of hearing: 16 May 2022 Place: Sydney First and Second Applicant: First applicant in person, and on behalf of the second applicant, by video Counsel for the Respondent: Ms V Bulut, by video Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
SYG 2336 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEREK STOREY
First Applicant
DONGYUN STOREY
Second Applicant
AND: BLACKTOWN CITY COUNCIL
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the proceeding be dismissed to the extent it relates to the applicants’ claims based, or purportedly based, on ss 5, 6, 7, 11, 29, 30, and 32 of the Disability Discrimination Act 1992 (Cth) (DD Act).
2.By 17 November 2023 the respondent file and serve written submissions on the following questions:
(a)whether conduct that amounts to victimisation within the meaning of s 42(2) of the DD Act constitutes “unlawful discrimination” within the meaning of s 3 of the Australia Human Rights Commission Act 1986 (Cth) (AHRC Act); and
(b)if (a) is answered in the negative, whether the Court has jurisdiction under s 46PO(1) of the AHRC to entertain the applicants’ claims to the extent they rely on s 42 of the DD Act.
3.By 1 December 2023 the applicants may file and serve submissions in response to the submissions the respondent files pursuant to order 2.
4.Subject to order 5, the matter be listed at 9:30 am on 8 December 2023, or at such later time and date as the Court may fix, for the purpose of hearing oral submissions on the matters raised in the submissions that are filed pursuant to orders 2 and 3.
5.If by 7 December 2023 the parties inform the Associate to Judge Manousaridis that they consent to Judge Manousaridis determining the questions identified in order 2 without oral argument, the listing referred to in order 4 will be vacated, and Judge Manousaridis will be at liberty to deliver judgment on those questions without any further hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The respondent (Council) applies for an order under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) and r 13.13 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal law) Rules 2021 (GFL Rules) that all but one of the claims the applicants make, purportedly pursuant to the Disability Discrimination Act 1992 (Cth) (DD Act), be summarily dismissed.
Before I consider whether, as the Council contends, the applicants do not have reasonable prospects of succeeding on all but one of their claims based on the DD Act, I will set out:
(a)the procedural background out of which the Council’s application arises;
(b)the applicants’ claims;
(c)the elements of each of the causes of action for unlawful discrimination under the DD Act on which the applicants rely; and
(d)the principles governing the exercise of the power to dismiss a proceeding, or a part of a proceeding, under s 143 of the FCFC Act.
BACKGROUND
On 20 December 2021 the applicants, who are not legally represented, filed an application in this Court under s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) in which they allege the Council engaged in unlawful discrimination, contrary to a number of provisions of the DD Act. The applicants’ claims relate to the Council’s response or lack of response to complaints the applicants made in relation to the noise they claim emanates from an aviary, and from a hot water system, which are located on a neighbouring property (neighbouring property). The application also named an officer of the Council as a party.
With the application the applicants filed an affidavit made by the first applicant, Mr Storey, on 19 December 2021. That affidavit consists of attachments, which include the following:
(a)An email Mr Storey sent on 27 March 2020 to officers of the Council about “the large number of birds being kept within 1m of our property”. Mr Storey stated that the birds have been causing him breathing and chest issues, which worsen when he is out in the garden. Mr Storey further stated that the bird dust, and the faeces the birds generate, enter the applicants’ back-garden, and into the house if the windows are open; this has been ongoing for 15 months; and he had raised these health issues several times with the Council, but the Council constantly ignored his concerns.
(b)A graph Mr Storey described as “Horatio Noise Reading – 23-November – LAeq Graphical Results”.
(c)An email the Mayor sent to Mr Storey on 7 April 2020, stating that the Council’s Chief Executive Officer (CEO) had requested a full review of the Council’s investigations into the matter, and that Mr Storey would be provided with a response at the conclusion of that review.
(d)An email Mr Storey sent, on 27 April 2020, to the Council attaching a “Court Noise Abatement Order”. Mr Storey stated that the police had said that it is a council’s duty to ensure “the Tenant and Landlord Comply with this order”.
(e)An email Mr Storey sent to the Council, on 15 June 2020, attaching “Graphs of Noise Measurements taken by . . . Council Meter” supplied to Mr Storey. Mr Storey stated that the Council’s meter measurements show that “bird noise clearly is in breach of the Law”.
(f)An email Mr Storey sent on 13 August 2020 to the Council, stating that more birds were being moved closer to the applicants’ bedrooms, and that Mr Storey assumed this was done with the Council’s full knowledge “as punishment for raising a discrimination complaint to the ADB”. Mr Storey claimed that, notwithstanding the Council’s own noise measurements, and the applicants’ having provided to the Council the “Court Noise Abatement Order”, the Council had allowed the birds to remain on the neighbouring property, and had not responded to the emails Mr Storey had sent to the CEO and to the Mayor.
(g)A letter dated 27 August 2020 the Council sent to Mr Story attaching a letter from the Council’s Executive Corporate Counsel “in relation to a Noise Abatement Order [Mr Storey] obtained from Blacktown Local Court”. The letter stated that the Council had inspected the neighbouring property, and found that the number of budgerigars had not increased; the number kept was compliant with Council’s instruction that the applicants’ neighbour keep not more than 20 adult birds; the main aviary was in the same location as it had previously been identified; and there was one cage housing two adult budgerigars against the rear of the main aviary, and two small breeding boxes with five baby birds. The letter further stated that the location of the adult bird cage and the baby bird cage were still well outside the required distance from the applicants’ house.
(h)An email Mr Storey sent to the Council, on 31 August 2020, stating that the birds were not at a distance “prescribed under Legislation”, because “it requires birds to be at sufficient distance that they do not cause Nuisance – noise, offensive odour or health risk”; the birds “produce faeces particles, bird dust etc (plus. Their noise)”; each breeding pair of birds will produce 4-6 young, so that in a matter of two months there will be 60-90 birds; and that even the Council’s officers “have said that moving them a few metres will accomplish nothing”.
(i)An email Mr Storey sent on 1 February 2021 to officers of the Council making a request under the “Freedom of Information Act” of the noise data from the noise meter that had been installed at the applicants’ home from 3 to 4 December 2020. Mr Storey requested “under the Privacy Act” that all copies of the audio recorded from the noise-measuring meter be destroyed. Mr Storey also stated that the applicants’ neighbour’s hot water heater is installed next to their bedroom; it operated from 6:00 am to 1:00 am (which is in breach of the law); and that the applicants expected the Council to do something about it.
(j)A letter dated 8 February 2021 from the Council to the applicant noting that the Council was seeking legal advice about Mr Storey’s enquiry concerning noise data taken on 3-4 December 2020. The letter also stated that officers of the Council attended the neighbouring property, and requested the installation certificate for the hot water system, and had written to the manufacture requesting the manufacturing specifications.
(k)A number of medical reports in relation to the applicants.
In addition to these documents, Mr Storey attached to his affidavit the complaint (Complaint) the applicants lodged with the Australia Human Right Commission (AHRC) on 20 October 2021. In the Complaint the applicants summarised their communications with the Council concerning the birds and hot water system on the neighbouring property. The applicants:
(a)alleged that the Council, among other things: has been denying “our protection under the Law for Regulatory Functions and Powers” for which the Council and its officers are responsible; has been withholding reports and information from the applicants; and has claimed ignorance of the laws and noise limits the Council is required to administer;
(b)noted that the issues concern the noise from the neighbours’ birds which the Council has described as “almost constant”, “as loud as a person talking”; “audible in all our bedrooms”, and clearly “audible from one side of [the] property to the other side”;
(c)stated that Ms Storey has been suffering from a cough which started around 6 months after the birds arrived in the neighbouring property; and Mr Storey gets stressed from the noise when he is in his garden, and suffers from breathing issues caused by the “small faeces/bird dust particles coming from the large number of birds, within 1 meters of” the applicants’ fence;
(d)alleged that the Council breached ss 5, 6, 7, 11, 29, 30, and 42 of the DD Act; and items 3, 4, 7, 9, and 10 of Schedule 5 to the AHRC Act; and
(e)alleged that the Council had breached a number of other laws.
By letter dated 11 January 2022 the lawyers for the Council contended that the application contained a number of defects.
The matter came before me on a first court date on 1 February 2022, on which occasion I listed the matter for further directions on 15 February 2022. On 11 February 2022 the Council’s lawyers sent another letter to the applicants in which they identified what the Council’s lawyers stated are deficiencies in the applicants’ claims.
On 14 February 2022 the applicants filed an amended application removing the name of the Council officer who was named as a respondent in the application filed on 20 December 2021.
At the directions hearing on 15 February 2022, I ordered that the amended application the applicants filed on 14 February 2022 stand as an application in the proceeding, and that by 1 March 2022 the applicants serve on the Council a letter that responds to the matters raised in the Council’s lawyer’s letter dated 11 January 2022. I then listed the matter for a further directions hearing on 8 March 2022.
The applicants provided to the Council’s lawyers a letter dated 1 March 2022 which responded to the Council’s lawyer’s letter of 11 January 2022. At the directions hearing I ordered that the Council file and serve its response, and I listed the matter for a further directions hearing on 24 March 2022.
The Council filed its response on 22 March 2022; and on 23 March 2022 the Council filed an application in a proceeding. On 24 March 2022 I ordered that the Council’s application in the proceeding be set down for hearing at 10:15 am on 16 May 2022, and I also made orders for the filling of evidence.
APPLICANTS’ CLAIMS
The applicants’ allegations are set out in Part B of the amended application; and these may be summarised as follows:
(a)The Council has deliberately failed to uphold the law, forcing the applicants to endure conditions that others without a disability do not have to.
(b)The Council has victimised the applicants for complaining to the AHRC; has withheld regulatory services from the applicants to which they are entitled; has ignored the respondents’ neighbours’ clear breaches of the law, and the impact these breaches are having on the applicants’ disabilities and mental health.
(c)The Council is aware of the impact the “Nuisance Noise etc.” is having on the applicants’ mental health; it is clearly in breach of its regulatory functions; but the Council will do nothing to prevent the harm to the respondents.
(d)On 20 August 2019 Dr A had written a letter to the Council in relation to a noise abatement order concerning noise from the neighbouring property. In his letter, Dr A said that Mr Storey has been suffering adverse mental health effects as a result of persistent noise exposure; and that Mr Storey has been experiencing ongoing stress over a protracted period.
On the basis of these allegations, the applicants contend the Council breached the following “Divisions” (by which I take the applicants to mean “sections”) of the DD Act.
Section 5 of the DD Act – direct disability discrimination
The Council has directly discriminated against the applicants as follows:
(a)The Council has been treating the applicants less favourably than others without a disability by denying the applicants the protection under the law. The less favourable treatment consists of the Council allowing the applicants’ neighbours to breach noise legislation. The breach of the noise legislation consists of birds and an instant hot water heater emitting noise that is over the “70dB’s Noise level”.
(b)The Council has not made reasonable adjustments to ensure that the applicants’ enjoyment of life, comfort, peace and quiet, sleep, and mental health are not impacted by their neighbours’ birds and hot water heater.
(c)The Council has not made reasonable adjustments, knowing the impact the constant noise, offensive odour, and pollution will have on the applicants, given their disabilities.
(d)The Council allowed the applicants to be subjected to harm through their discriminatory actions, as “is detailed in many emails to them”.
Section 6 – indirect disability discrimination
The Council has indirectly discriminated against the applicants as follows:
(a)The Council has required the applicants to comply with a requirement or condition, namely, bird noise, bird pollution, and instant water heater noise, which, because of the applicants’ disabilities, they have not been able to comply with the conditions or requirement.
(b)The Council has failed to make reasonable adjustments, thus disadvantaging the applicants due to their disabilities.
(c)The Council’s officers themselves commented that the noise level was above the normal conversational level; and that the “first noise measurement data” the Council provided to the applicants showed the birds breach EPS guidelines. Yet in its formal letters the Council claims the birds are compliant.
Section 7 – discrimination in relation to associates
The applicants are suffering from severe insomnia, stress, and depression due to the constant noise from the birds and hot water heater. The Council is fully aware of the impact this has been having on Ms Storey, but has done nothing.
Section 11 – unjustifiable hardship
The Council has caused the applicants unjustifiable hardship in that the applicants have no peace or quiet in their own home; they suffer from severe insomnia; they are not able to go to their back garden because of the constant noise and odour; they are suffering worsening mental health and physical health, which impacts on their ability to work.
Section 29 – administration of Commonwealth laws and programs
The Council has been deliberately not performing its function, allowing breaches of the law. This includes intentionally misinterpreting bird noise measurements so that the Council does not have to exercise its power under Commonwealth laws and programs. Further, the Council has failed to enforce the court noise abatement order. The Council has failed to enforce the following laws:
(a)The Protection of the Environment Operations Act 1997, (NSW) (PEO Act); and in particular “Part 3 Objections of Act Part Subdivision (d) – Section (i) – Pollution Prevention Section (iia) – “the elimination of harmful wastes”. This appears to be a reference to s 3(d)(i) and s 3(iia) of the PEO Act. No assessment has been done on bird pollution levels notwithstanding “Internet Articles” showing that a large number of aviaries and birds close to residential premises constitutes a health risk.
(b)The Local Government Act 1993 (NSW) (LG Act), and in particular “Part (8A) – Subdivision (h))” – “Councils should act fairly, ethically and without bias in the interests of the local community” (that appears to be a reference to s 8A(h) of the LG Act), and s 125 of the LG Act (which provides that a council may abate a public nuisance or order a person responsible for a public nuisance to abate it).
(c)The Public Health Act 2010 (NSW) (PH Act), and in particular “Part (3) – Objects – Subdivision (2)” (being a reference to s 3(2)), which provides that the “protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act”. The Council undertook no investigation into the health risks to the applicants, even though the applicants had provided emails and doctors’ letters to the Council.
(d)State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (SEPP), “[s]ubdivision 4 Aviaries - Sections (f) &(g)”. Section 2.8 prescribes standards for a development that comprises the construction and installation of an aviary. Paragraph (f) requires the development have an impervious floor, and that it must be “constructed or installed so that roofwater is disposed of without causing a nuisance to adjoining owners”. The Council informed the applicants that the floor of the neighbouring aviary is only “partially impervious”.
(e)The Work Health and Safety Act 2011 (NSW) (WHS Act), “Division 2 – Primary duty of care”. That appears to be a reference to s 19 of the WHS Act. The Council has knowingly allowed the applicants as ratepayers and customers of the Council to be harmed.
(f)The Civil Liability Act 2002 (NSW) (CL Act), “Part 3 Mental harm Division 2 Duty of care”.
(g)The Surveillance Devices Act 2007 (NSW), “subdivision 7”. The Council installed a noise monitoring device without the applicants’ knowledge to “continuously record [the applicants’] private and personal conversations”, which the Council “will neither return or destroy said recordings”.
(h)The Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
(i)The Privacy and Personal Information Protection Act 1998 (NSW). The Council will not supply to the applicants copies of “their Reports or internal findings in relation to their assessment of the nuisance Noise, etc, from [the applicants’] neighbours”.
Section 30 – requests for information
The Council will not supply to the applicants copies of “their Reports or internal findings in relation to their assessment of the nuisance Noise, etc, from [the applicants’] neighbours”. The Council has instead forced the applicants to submit a formal request for information and pay the Council a fee. The Council also breached the GIPA Act by not providing the requested information to the applicants.
Section 32 – disability standards
The Council breached its own disability standard, being the “Disability Inclusion Action Plan”, which provides that a “socially just community is one where everyone has fair and equal access to services that are essential to achieving and maintaining a decent lifestyle”; and which also provides that the Council will ensure “that all people have fair and equitable access to the economic resources and services essential to meeting their basic needs and improving their quality of life”. The Council are denying the applicants access to “those Regulatory Services”, knowing that in doing so, the Council is impacting on the applicants’ quality of health, worsening their disabilities, and harming them.
Section 42 – victimisation
The applicants claim the Council and its officers have been deliberately victimising the applicants for complaining in the past to the AHRC; and, “[a]s such, the Council and its officers appear to have ‘intentionally manipulated/misinterpreted’ noise data, so it can be used against” the applicants to deny them protection under the laws the Council enforces, knowing that in doing so the Council is subjecting the applicants to significant detriment, such as severe insomnia, worsening mental health, excessive noise, and causing the harm and physical health issues. The applicants rely on the following matters:
(a)The applicants plotted noise information data on a graph that the Council collected and provided to the applicants; and this showed that the bird noise was breaching “EPA Noise levels and NSW Legislation on Nuisance Noise”. Further, officers of the Council had stated that the bird noise was “not compliant”, the noise was “continuous”, and “above speech level”. The Council, however, is now denying the applicants regulatory function services.
(b)The Council is denying the applicants the regulatory function services the Council must administer “fairly and equally.”
(c)The Council is intentionally allowing the applicants’ neighbours to breach Commonwealth law in areas for which they are responsible.
(d)The Council has:
(i)manipulated and ignored its own data;
(ii)not investigated health risks;
(iii)not provided the applicants with information;
(iv)ignored its own opinions on noise levels, and is wilfully blind to its own evidence of noise levels;
(v)not investigated the applicants’ complaints of discrimination and victimisation;
(vi)threatened the applicants by stating the Council would allow the applicants’ neighbours to have 30 birds per cubic meter, so in excess of 1,200 birds within 1 meter of the applicants’ property;
(vii)accused the applicants of lying;
(viii)not provided the applicants with an opportunity to review and comment on evidence in relation to the independent assessment the Council claimed it had undertaken; and
(ix)not enforced a noise abatement order.
DD ACT
The DD Act prohibits various types of conduct (proscribed conduct) that constitute discrimination by one person against another person on the ground of “disability”. The various classes of proscribed conduct are specified in Part 2 of the DD Act. The applicants rely on ss 5, 6, 7, 11, 29, 30, 32, and 42 of the DD Act. Only ss 29, 30, 32, and 42 of the provisions of the DD Act on which the applicants rely, however, prohibit conduct; ss 5, 6, 7, and 11 are relevant only to the extent they define words and expressions used in ss 29, 30, 32, and 42 of the DD Act.
I will consider ss 5, 6, 7, and 11 of the DD Act before I consider ss 29, 30, 32, and 42.
Section 5 and 6 – conduct that constitutes discrimination
The DD Act defines four types of conduct that constitutes discrimination.[1]
[1] In the following paragraphs I repeat most of what I said in Hudson v Australian Broadcasting Corporation [2016] FCCA 917, at [22]-[51]
First type of discrimination
The first is defined in s 5(1):
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
Treated “less favourably”
An essential element of s 5(1) of the DD Act is that the person with a disability (that is, “the aggrieved person”) has been treated “less favourably”. Whether a person has been treated less favourably requires the construction of a “notional person” against which the treatment of the aggrieved person can be compared.[2] Such notional person is often referred to as the “comparator”. How the appropriate comparator is to be constructed was one of the issues the High Court considered in Purvis v State of New South Wales (Department of Education & Training).[3]
[2] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [114] (McHugh and Kirby JJ)
[3] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ)
In Purvis, the aggrieved person, a student, suffered from a disorder that caused him to act violently towards students and teachers. He alleged the school discriminated against him because of his disability, by suspending and later excluding him from the school because of his violent behaviour. One issue was whether the violence the aggrieved person manifested in the circumstances that gave rise to the alleged discriminating conduct should be attributed to the comparator. The majority held that the comparator ought to have included the violent behaviour the aggrieved person manifested in the circumstances of the alleged discriminatory conduct.
There are two reasons for judgment to consider. The first is that of Gummow, Hayne, and Heydon JJ (with whose reasons on this point Callinan J agreed).[4] Their Honours said that, where the alleged discriminating conduct has taken place, the actual circumstances of the conduct must be identified. What must then be compared with those circumstances is what the alleged discriminator would have done in relation to a person who does not have the disability in “those” circumstances.[5] Their Honours said:[6]
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
[4] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [273]
[5] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [223]
[6] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [224]
The second judgment to consider is that of Gleeson CJ. His Honour held that the claim of discrimination in that case was based on a fallacious assumption that, because the complainant’s violent behaviour was due to a disorder, the relevant comparison was between the complainant manifesting violent behaviour and a person who did not manifest the violent behaviour. That was so because the “law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled”.[7] What the DD Act required was “a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder”.[8]
[7] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [11]
[8] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [11]
Causation
Causation constitutes an element of the definition of “discrimination” given by s 5(1); that flows from s 5(1) requiring that the person with the disability has been treated less favourably than a person without the disability “because” of the person’s disability. The requirement of causation is repeated in s 29 of the DD Act, which provides for discrimination “on the ground of” a person’s disability. This points to the requirement of a causal connection between the alleged discriminatory conduct, and the reasons for which the alleged discriminator has engaged in the discriminatory conduct.
This requirement is not only inherent in the meaning of the words “on the ground of”; it is supported by s 10 of DD Act, which provides:
If:
(a)an act is done for 2 or more reasons; and
(b)one or more reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
Then, for the purposes of this Act, the acts is taken to be done for that reason.
“Disability”
The word “disability”, in relation to a person, is defined in s 4 to mean:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
Second type of discrimination
The second type of discrimination is defined in s 5(2) of the DD Act which provides:
For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b)the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
There are a number of observations that may be made about s 5(2) of the DD Act.
(a)First, of the discrimination the subsection identifies is a decision or proposal by the alleged discriminator not to do something, namely, not to make a “reasonable adjustment”.
(b)Second, although the DD Act defines the expression “reasonable adjustment” (which I will consider shortly), the DD Act does not define the word “adjustment”; it bears its ordinary meaning. To “adjust” means “to arrange, alter, or modify (a thing) in relation to something else so as to meet a standard, suit a purpose, or achieve a desired result”;[9] and it may mean steps that may be taken to arrange or alter or modify a thing in a particular way or for a particular purpose; or the arrangements, alterations, or modifications that have been effected by the acts that constitute the adjustment. As used in s 5(2) of the DD Act, therefore, “adjustments” may be taken to mean the arrangements, alterations, or modifications the alleged discriminator has decided not to make or has proposed not to make to a thing.
(c)Third, s 5(2) of the DD Act does not identify the thing to which the alleged discriminator has decided not to make adjustments. The identity of the thing, however, will depend on the context in which the discrimination defined in s 5(2) is applied.
(d)Fourth, the adjustments, namely, the arrangements, alterations or modifications the alleged discriminator has decided not to make or has proposed not to make, must be adjustments that, if made, would have been made “for” the aggrieved person.
(e)Fifth, s 5(2)(b) of the DD Act provides that the adjustments must be of a character that, if not made, have or would have a particular effect. The required effect is that the aggrieved person, because of his or her disability, is treated “less favourably” than a person without the disability would be treated in circumstances that are not materially different. Paragraph (b) of s 5(2) of the DD Act, therefore, contemplates that the aggrieved person is “treated less favourably” because of his or her disability; but an adjustment is available which, if the discriminator makes it, will eliminate the aggrieved person’s being treated less favourably, or, perhaps, will reduce the extent to which the person with a disability will be treated less favourably, because of that person’s disability.
(f)Sixth, the expression “treated less favourably”, as it appears in s 5(2)(b) of the DD Act, requires additional comment. It does not have the same meaning as “treated less favourably” in s 5(1) of the DD Act. In s 5(1), “treated less favourably” means the less favourable treatment the aggrieved person experiences when the discriminator, because the aggrieved person has a disability, treats the aggrieved person differently than he or she would treat a person who does not have the disability in circumstances that are not materially different. In s 5(2), on the other hand, “treated less favourably” means the disadvantages the aggrieved person experiences because of his or her disability, not because the discriminator has treated the aggrieved person differently than he or she would treat a person without a disability in circumstances that are not materially different. Subsection 5(2) defines discrimination as a person’s treating an aggrieved person no differently than he or she would treat a person who does not have a disability in circumstances where an adjustment could reasonably be made that would overcome or perhaps ameliorate the disadvantages the aggrieved person has because of his or her disability when compared with persons who do not have the disability in circumstances that are not materially different.
(g)Seventh, the adjustment must be a “reasonable adjustment”. Subsection 4(1) of the DD Act provides that an “adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person”. This should be read with s 11 of the DD Act. Subsection 11(1) provides that when determining whether a hardship that would be imposed on a person would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including, the matters identified in s 11(1). In addition, s 11(2) provides that, for the purposes of the DD Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship. These provisions imply, therefore, that once an aggrieved person alleges and establishes that an alleged discriminator ought to make or ought to have made an adjustment, the alleged discriminator bears the onus of proving that the making of the adjustment would impose an unjustifiable hardship and, unless the alleged discriminator discharges the onus, the alleged discriminator will have engaged in unlawful discrimination by not making the adjustment, or in proposing not to make the adjustment.
[9] Oxford English Dictionary online edition
Thus, under s 5(2) of the DD Act, an alleged discriminator will discriminate against an aggrieved person if the following occurs:
(a)the aggrieved person, because of his or her disability, is or would be treated less favourably than a person without the disability is or would be treated; that is, the aggrieved person, because of his or her disability, is or would be disadvantaged by the discriminator’s treating the aggrieved person in the same way the discriminator would treat a person without the disability in circumstances that are not materially different;
(b)an adjustment is available to be made by the alleged discriminator which, if not made, will have the effect of the aggrieved person’s continuing to be treated less favourably, in the sense referred to in (a), than a person without the disability would be treated in circumstances that are not materially different;
(c)the alleged discriminator does not make the adjustment; and
(d)the alleged discriminator cannot prove that the making of the adjustment would impose unjustifiable hardship on the alleged discriminator.
Third type of discrimination
The third form of discrimination is defined in s 6(1) of the DD Act which provides as follows:
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b)because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c)the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
Subsection 6(3) of the DD Act provides that s 6(1) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. Subsection 6(4) provides that the burden of proving that the requirement or condition is reasonable lies on the person who requires or proposes to require the person with the disability to comply with the requirement or condition.
Fourth type of discrimination
The fourth type of discrimination is defined in s 6(2) of the DD Act which provides:
For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b)because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c)the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
As with s 6(1) of the DD Act, s 6(3) provides that s 6(2) of the DD Act does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case; and s 6(4) of the DD Act provides that the burden of proving that the requirement or condition is reasonable lies on the person who requires or proposes to require the person with the disability to comply with the requirement or condition.
Section 7 of the DD Act
Section 7 of the DD Act concerns persons who has “an associate with a disability”, and provides as follows:
1.This Act applies in relation to a person who has an associate with a disability in the same way as it applies in relation to a person with the disability.
2.For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person who has an associate with a disability as if:
(a) each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has an associate with the disability; and
(b) each other reference to a disability were a reference to the disability of the associate.
3.This section does not apply to section 53 or 54 (combat duties and peacekeeping services) or subsection 54A(2) or (3) (assistance animals).
The word “associate”, when used in relation to a person, is defined in s 4 of the DD Act to mean, among other things “a spouse of the person”.
Section 11 of the DD Act
Section 11 sets out the matters that may be taken into account when determining whether a hardship that would be imposed on a person would be an “unjustifiable hardship”. That expression forms part of the definition of “reasonable adjustments” which, in turn, forms part of the definition of discrimination contained in s 5(2) and s 6(2) of the DD Act.
Having set out those provisions on which the applicants rely, which are definitions, I will now consider each of the other provisions on which the applicants rely.
Section 29 of the DD Act
Section 29 of the DD Act provides:
It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
There are three broad elements to s 29:
(a)the proscribed conduct answers the description “discriminate against another person on the ground of the other person’s disability” as that expression is defined in s 5 or s 6 of the DD Act;
(b)the proscribed conduct must be engaged by a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program; and
(c)the person must engage in the discriminating conduct in the performance of the function, or the exercise of the power, or the fulfilment of the responsibility, referred to in (b).
Section 30 of the DD Act
Section 30(1) of the DD Act provides:
(1) This section applies in relation to a person (the first person) if, under Division 1 or this Division, it would be unlawful for the first person, in doing a particular act, to discriminate against another person on the ground of a disability of the other person.
(2) It is unlawful for the first person to request or require the other person to provide information (whether by completing a form or otherwise) if:
(a) the first person requests or requires the information in connection with, or for the purposes of, doing the act referred to in subsection (1); and
(b) either or both of the following applies:
(i) persons who do not have the disability would not be requested or required to provide the information in circumstances that are not materially different;
(ii) the information relates to the disability.
(3) Subsection (2) does not apply if:
(a) evidence is produced to the effect that none of the purposes for which the first person requested or required the information was the purpose of unlawfully discriminating against the other person on the ground of the disability; and
(b) the evidence is not rebutted.
(4)This section has effect subject to subsection 54A(5) (evidence that an animal is an assistance animal).
The elements of the conduct proscribed by s 30(2) of the DD Act, therefore, are as follows:
(a)a person requests or requires information;
(b)the person does so for the purpose of, or in connection with conduct that is proscribed by one or more of the provisions contained in Divs 1 or 2 of Part 2 of the DD Act; and
(c)a person who does not have the disability in connection with which the proscribed conduct has been taken would not have been asked or required to provide the information, or the information required or requested relates to the disability.
Section 32 of the DD Act
Section 32 of the DD Act provides that it “is unlawful to contravene a disability standard”. Under s 4 “disabilities standards” has the meaning given to it by s 31(1) of the DD Act, which provides:
The Minister may, by legislative instrument, formulate standards, to be known as disability standards, in relation to any area in which it is unlawful under this Part for a person to discriminate against another person on the ground of a disability of the other person.
Subsection 31(2) of the DD Act identifies the matters a disability standard may deal with.
As a consequence of item 1 of the table to s 19(1) of the Acts Interpretation Act 1901 (Cth), “the Minister” in the DD Act, including s 32, means “the Minister, or any of the Ministers, administering the provision on the relevant day, in relation to the relevant matter”.
Thus, for a person to engage in the conduct proscribed by s 32 of the DD Act, there must exist a “disability standard” made by the responsible Minister by way of legislative instrument; and the person must contravene a provision of such standard.
Section 42 of the DD Act
Subsection 42(1) of the DD Act provides that it “is an offence for a person to commit an act of victimisation against another person”. Subsection 42(2) identifies when a person is taken to commit an act of victimisation:
For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or
(b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or
(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or
(d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or
(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;
or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).
It may be noted that s 42 of the DD Act creates an offence; and it does not fall within the definition of “unlawful discrimination” contained in s 3 of the AHRC Act. Under that section, “unlawful discrimination” means “any acts, omissions or practices that are unlawful under”, among other things, “Division 1, 2, 2A, 3 or 6 of Part 2 of the” DD Act. Section 42 is contained in Division 4 of Part 2 of the DD Act. That may mean that conduct that is alleged to constitute victimisation within the meaning of s 42(2) of the DD Act may not be “unlawful discrimination” for the purposes of s 46PO(1) of the AHRC Act, which, in turn, would mean that the applicants were not entitled to bring a complaint before the AHRC alleging conduct that constituted victimisation within the meaning of s 42(2). That may further mean that this Court does not have jurisdiction under s 46PO(1) of the AHRC Act to entertain a claim for relief based on a contravention of s 42(1) of the DD Act.
I do not propose to express a final view about this because the parties have not raised it as an issue; but I will invite submissions on this question.
SUMARY DISMISSAL – PRINCIPLES
The Council relies on s 143(2) of the FCFC Act, which provides that this Court:
… may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Subsection 143(3) of the FCFC Act relevantly provides that, for the purposes of s 143, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
Subsection 143(2) of the FCFC Act is substantially similar to s 31A(2) of the Federal Court of Australia Act 1976 (Cth); and the principles governing the exercise of the power conferred by s 31A were set out by Perry J in Przybylowski v Australian Human Rights Commission(No 2):[10]
[10] Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473, at [7]
The principles governing the application of s 31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3)Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6)To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
PARTIES’ SUBMISSIONS
Mr Storey appeared at the hearing on behalf of himself and Ms Storey. Mr Storey read an affidavit he made on 13 April 2022. To that affidavit Mr Storey annexed a letter, dated 23 March 2022, he sent to the Council’s lawyers which responds to the Council’s response filed on 22 March 2022. The letter includes what it describes as a detailed response to “Council Letter dated 22-Mar-2022”. These responses include the following:
(a)The applicants’ complaints arise out of the same or substantially the same matters of which they complain in the Complaint.
(b)Section 3 of the DD Act – the “objects” clause – refers to discrimination against existing laws “(as in NSW Legislation) of which 10 NSW Laws are identified”.
(c)In relation to their claims based on s 29 of the DD Act, Mr Storey refers to “the Pharmaceutical Benefits case (1944)”. The applicant submits, on the basis of that case, that although the applicants rely on state law, “they are in fact responsibilities from the distribution of Powers and Functions between Commonwealth and States, and as such are ‘Commonwealth Purposes’”.
(d)Mr Storey acknowledges that he had misread s 30 of the DD Act; but he submits that the Council’s failure to release information is still relevant to the case because it clearly shows discrimination and victimisation by the Council.
(e)Mr Storey sets out information in relation to the “unjustifiable hardship” the applicants have and continue to experience.
(f)Mr Storey says he thought it was a requirement of “Disability Standards” that the Council have a “Disability inclusion Plan”; but he asks “permission to allow the Disability Inclusion Plan to be moved in the application from Division 2A – Section 31 – Disability Standards – to the Section under NSW Laws”.
(g)Mr Storey provides “[e]xamples from Division 5 Direct disability discrimination” in the application, and also sets out examples of victimisation.
Mr Storey also annexed to his affidavit of 13 April 2022 the following documents:
(a)A document titled “Attachment 1 – Case Law for Commonwealth Programs”.
(b)A letter dated 1 March 2022 responding to the Council’s letter of 11 January 2022. The letter refers to an incident with a neighbour; and requests that the applicants be permitted to amend the application “to allow the Disability Inclusion Plan to be moved in the application from Division 2A – Section 31 – Disability Standards – to the Section under NSW Laws”, and also to add “in Part 1 – Section 3 Objects” the NSW laws the Council has breached.
(c)Emails Mr Storey sent to the Council on 11 January and 18 January 2022 in relation to a howling dog belonging to a neighbour.
(d)A document headed “Attachment 3 – Response to Council Letter dated 1-Mar-2022”. This is addressed to “Mr Hassal”, the Council’s lawyer, and is stated to respond to a letter dated 2 March 2022. Mr Storey states that he is aware the Council is not a Commonwealth body; but local government “is called up in the” DD Act. Mr Storey states that the request for particulars is the equivalent of requesting a statement of claim; but this may only be ordered by the Court.
At the hearing Mr Storey repeated the effect of the complaints he and Ms Storey have about the Council’s actions and inactions in relation to noise emanating from the birds and hot water heater emanating from the neighbouring property.
The Council, on the other hand, submitted that ss 5, 6,7, and 11 of the DD Act do not proscribe conduct, but are definitions or ancillary provisions to other provisions of the DD Act that do proscribe conduct. For that reason, the applicants’ claims, to the extent they rely solely on ss 5, 6, 7, and 11 of the DD Act, have no reasonable prospects of success. The Council further submitted that the applicants do not have reasonable prospects of success to the extent they rely on ss 29, 30, and 32 because the alleged facts on which they rely do not arguably come within the scope of these provisions.
DETERMINATION
Claims wholly based on ss 4, 5, 6, 7, and 11 of the DD Act
I have already noted that ss 5 and 6 of the DD Act define the notion of a person discriminating against another person on the ground of that other person’s disability; and these sections do not by themselves identify conduct that is unlawful. Section 7 goes no further than providing that the DD Act applies to associates of persons with a disability as if they were persons with a disability; and s 11 defines what may constitute “unjustifiable hardship” for the purpose of determining whether “reasonable adjustments” can be made for the purposes of s 5(2) and s 6(2) of the DD Act. For these reasons, the applicants do not have reasonable prospects of successfully prosecuting their claims to the extent they rely solely on ss 5, 6, 7, and 11 of the DD Act.
Claim based on s 29 of the DD Act
As I have already set out, s 29 of the DD Act applies to conduct that is engaged in by a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program; and it requires that the conduct must occur in the performance of such function, or in the exercise of such power, or in the fulfilment of such responsibility.
The Council’s conduct of which the applicants complain is not alleged to have occurred in the performance or in the exercise by the Council of any function or any power under a Commonwealth law or for the purposes of a Commonwealth program, or in the fulfilment of any responsibility for the administration of a Commonwealth law, or the conduct of a Commonwealth program. The Council’s conduct of which the applicants complain relates to the Council’s enforcement or non-enforcement of laws of New South Wales which, of course, are not laws of the Commonwealth.
For these reasons, the applicants do not have reasonable prospects of successfully prosecuting their claims based on the Council’s contravening s 29 of the DD Act.
Claim based on s 30 of the DD Act
The facts on which the applicants rely for claiming the Council has contravened s 30 of the DD Act relate to the Council’s failure to provide to the applicants’ information they requested the Council provide to them. These alleged facts are incapable of engaging s 30 of the DD Act. Section 30 is directed to a person seeking information in connection with or for the purpose of conduct that constitutes any one or more types of unlawful conduct proscribed by Part 2 of the DD Act.
For these reasons, the applicants do not have reasonable prospects of successfully prosecuting their claim based on the Council’s contravening s 30 of the DD Act.
Claim based on s 32 of the DD Act
The applicants’ claim under s 32 of the DD Act relies on the Council’s “Disability Inclusion Action Plan”. Section 32 of the DD Act, however, only applies to “disability standards”, and only where such standards are formulated by a legislative instrument by “the Minister”, that is, by the Commonwealth Minister, or any of the Commonwealth Ministers, administering s 32. Assuming that the Council’s “Disability Inclusion Action Plan” can properly be characterised as a “disability standard”, it is plain that it has not been made by legislative instrument by the Commonwealth Minister who administered s 32 of the DD Act at the time the Council pronounced its “Disability Inclusion Action Plan”.
The applicants, therefore, do not have reasonable prospects of successfully prosecuting their claims based on the Council contravening s 32 of the DD Act.
Claim based on victimisation
The Council does not submit that the applicants do not have reasonable prospects of succeeding on their claims based on s 42 of the DD Act. As I noted earlier in these reasons, however, there is a question whether conduct that amounts to victimisation within the meaning of s 42(2) of the DD Act constitutes “unlawful discrimination” as that expression is defined in s 3 of the AHRC Act and, therefore, whether the Court has jurisdiction under s 46PO(1) of the AHRC Act to entertain the applicants’ claims to the extent they are based based on alleged victimisation.
DISPOSITION
I propose to order that the applicants’ claims based or purportedly based on ss 5, 6, 7, 11, 29, 30, and 32 of the DD Act be dismissed. I also propose, however, to make directions inviting the parties to file and serve submissions on whether the Court has jurisdiction to determine the applicants’ claims to the extent they are based on s 42 of the DD Act. I will also reserve the question of costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 3 November 2023
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