Webb v Child Support Agency
[2007] FMCA 1678
•5 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEBB v CHILD SUPPORT AGENCY & ANOR | [2007] FMCA 1678 |
| HUMAN RIGHTS – Disability discrimination. |
| Disability Discrimination, Act 1992 (Cth), ss.4, 5, 6, 23, 29 Human Rights and Equal Opportunity Commission Act, 1986 (Cth) |
| A School v Human Rights and Equal Opportunity Commission(No 2) (1988) 55 ALD 93 Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 987 |
| Applicant: | KENNETH GRAHAM WEBB |
| Respondent: | CHILD SUPPORT AGENCY |
| Intervener: | DISABILITY DISCRIMINATION COMMISSIONER |
| File Number: | PEG 307 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 12 and 14 June 2007 |
| Date of Last Submission: | 14 June 2007 |
| Delivered at: | Perth |
| Delivered on: | 5 October 2007 |
REPRESENTATION
| For the Applicant: | Mr K G Webb |
| Counsel for the Respondent: | Mr P Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
| Counsel for the Intervener: | Ms S Bangash |
| Solicitors for the Intervener: | Human Rights and Equal Opportunity Commission |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 307 of 2006
| KENNETH GRAHAM WEBB |
Applicant
And
| CHILD SUPPORT AGENCY |
Respondent
And
| DISABILITY DISCRIMINATION COMMISSIONER |
Intervener
REASONS FOR JUDGMENT
Introduction
The applicant is a mobility impaired person who uses a wheelchair.
The applicant pays child support for the children of his marriage. Child support is administered by the respondent. In Perth the respondent does so from the ninth floor of premises at 15-17 William Street in the central business district. The premises are in a building commonly known as Australia Place. Since about June 2003 the applicant and the respondent have been in dispute concerning child support assessments, and in particular the applicant’s expenses in relation to his disability, and consequently the level of income used for child support assessment purposes.
On 3 November 2005 the applicant sought to attend at the respondent’s office for an interview. The applicant says that there was no disabled parking at or near the respondent’s premises, and that those premises were very difficult to access by wheelchair from the street address in William Street. When the applicant accessed the premises via the disabled access on another street (St Georges Terrace) and went to the respondent’s offices there was a fire alarm. The applicant says he was left stranded in a fire stairwell whilst others evacuated the premises.
A delegate of the President of the Human Rights and Equal Opportunity Commission terminated the applicant’s complaint to it on 6 November 2006.
Issues
The issues for determination in this matter are whether the respondent has discriminated against the applicant on the basis of his disability by:
a)failing to provide accessible parking bays at or near Australia Place;
b)the alleged inaccessibility of the respondent’s premises at Australia Place;
c)the respondent’s alleged failure to have appropriate evacuation procedures at Australia Place; and
d)failing to take into account expenses associated with the applicant’s disability when assessing the amount of his child support assessment.
Law
The applicant says that in relation to the above issues the respondent has contravened ss.5, 6, 23 and 29 of the Disability Discrimination Act 1992 (Cth).[1]
[1] The “DD Act”.
Section 5 of the DD Act relates to direct disability discrimination constituted by less favourable treatment of the person with a disability than a person without a disability in circumstances that are the same or not materially different .
Section 6 of the DD Act relates to indirect disability discrimination by requiring the person with a disability to comply with a requirement or condition with which the disabled person cannot comply, and with which a substantially higher proportion of persons without a disability can comply and which is not reasonable having regard to the circumstances of the case.
Section 23 of the DD Act sets out the bases on which it is unlawful to discriminate in relation to access to premises. This matter is principally concerned with paragraph (c) of s.23(1) “in relation to the provision of means of access to … premises”.
Section 29 of the DD Act provides that it is unlawful to discriminate in the administration of Commonwealth laws. For present purposes it is only the claim of discrimination in relation to child support that attracts s.29.
There is no question that the applicant has a disability as defined in s.4 of the DD Act.
Consideration of issues
Accessible Parking
The applicant complains that he was discriminated against because Australia Place has no on-site or nearby disability parking for him,[2] and that the nearest public parking is at the bottom of the hill (that is at the foot of William Street) and that he “can not use this to reach the premises due to the major incline [up the William Street hill].”[3]
[2] Applicant’s Affidavit, 28 November 2006 at para 7.
[3] Applicant’s Affidavit, 10 April 2007 at para 15.
The applicant asserts that the respondent “ignores the Applicant’s requirements” in relation to parking.[4]
[4] Points of Claim at para 7(1).
On 21 October 2003 special arrangements were made to allow the applicant to have a car bay made available to him underneath Australia Place. Ordinarily, there is no public parking below Australia Place. The respondent does not lease any car bays in Australia Place. The arrangement made on 21 October 2003 was made to provide additional assistance to the applicant because of his disability. No such arrangement would have been made for a customer of the respondent without a disability. No ordinary member of the public, or non-disabled customer of the respondent, attending the respondent’s Australia Place premises, is entitled to on-site or nearby parking, other than available public parking.[5]
[5] Affidavit of Gherardi, 8 May 2007 at paras 9 and 55-56 and Annexures C and UU.
The applicant, having previously made special arrangements for parking at the premises, made no attempt to do so on 3 November 2005.[6] Rather, he caught the train.[7]
[6] Affidavit of Gherardi, 8 May 2007 at para 55.
[7] Transcript at 14.
There are two Perth City Council car parks with disabled parking facilities in reasonably close proximity to Australia Place: the Perth Convention Centre car park and the His Majesty’s car park. Both provide lift and/or relatively level access to the disabled access ramp to Australia Place.[8]
[8] Affidavit of Gherardi, 8 May 2007 at paras 57-58 and Annexure UU.
Public transport buses with provision for persons with mobility disabilities also stop close to the intersection of St Georges Terrace and William Street, as well as slightly further away near the intersection of Hay and William Streets.[9]
[9] Affidavit of Gherardi, 8 May 2007 at para 59 and Annexure VV. The applicant did say that he refuses to catch the CAT buses which operate in the Perth central business district and which have provision for persons with mobility disability because on the one occasion he tried to catch a bus the driver refused to assist him: Transcript at 20.
There is no direct or indirect discrimination against the applicant in relation to the provision of car parking. The applicant is in no different a position to any other person in relation to the provision of car parking when seeking access to the respondent’s premises. The applicant is not less favourably treated than a person without a disability in this respect. The applicant is not required to comply with any requirement or condition in relation to car parking. The fact that on one occasion the applicant was the subject of positive discrimination with respect to the provision of car parking did not necessitate on-going positive discrimination. It was not possible to positively discriminate in this way on 3 November 2005 because the applicant made no request, and did not drive into Perth.
Section 29 of the DD Act does not apply to this aspect of the applicant’s claim.
Inaccessibility of premises
There are three means of a pedestrian publicly accessing the Australia Place building from William Street and St Georges Terrace. The Court having viewed these with the parties considers that it is clear that the principal public access is across the plaza joining the front entrance of Australia Place to the intersection of William Street and St Georges Terrace. The other means of public access are via quite steep stairs from William Street which go up to the aforementioned plaza, and via part of the plaza to the front entrance of Australia Place. The other access is the disabled access which runs off St Georges Terrace to the west and south sides of the AXA building (immediately north of Australia Place) via an easement, and then via the plaza to the front entrance of Australia Place. The disabled access is level with the plaza, except where it rises, by means of a disabled access ramp, from the St Georges Terrace footpath to the easement.[10]
[10] See generally exhibit DDC 6.
There is appropriate disabled access to Australia Place, and therefore no direct discrimination under s.5 of the DD Act.[11]
[11] A School v Human Rights and Equal Opportunity Commission(No 2) (1988) 55 ALD 93.
The applicant does not identify a requirement or condition for the purposes of indirect indiscrimination under s.6 of the DD Act. The requirement or condition cannot be to attend the respondent’s offices because the applicant was not actually required to do so, but chose to attend voluntarily.[12]
[12] Affidavit of Gherardi, 8 May 2007 at para 54. Compare Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 987 (“Sluggett”).
The requirement or condition suggested by the Disability Discrimination Commissioner, namely that all persons seeking to access Australia Place do so using the William Street stairs is unsustainable. Australia Place is accessible from William Street via the plaza level, and as the Court has observed above this is the principal means of public access.
Thus no requirement or condition has been established for the purposes of s.6 of the DD Act.
The respondent also does not have the capacity to control the structural elements of the premises by which access to Australia Place is obtained. Even if it did there is no evidence that structural changes to the Australia Place building or its surrounds would be possible to facilitate disabled access other than that which presently exists.[13] In that regard the Court notes that whilst the plaza is the primary means of public access to Australia Place the majority of it (other than that part immediately outside the front entrance) is not actually part of the plot of land on which Australia Place stands. That is why the easement is necessary to facilitate disabled access.
[13] Sluggett.
Thus the applicant has not established that he was indirectly discriminated against by the respondent in relation to the means of access to the building known as Australia Place.
Section 29 of the DD Act does not apply to this aspect of the applicant’s claim.
Inappropriate evacuation procedures
During the applicant’s visit to the respondent’s premises in Australia Place on 3 November 2005 the fire alarm sounded. Everyone except the fire warden and the applicant left the floor from which the respondent conducts its operations.[14] After some time the applicant was found by the fire warden who escorted the applicant to the fire stairwell where the applicant remained for about an hour until the fire service had cleared the building.[15] Persons without the applicant’s disability had apparently proceeded to a marshalling area some two blocks away from the premises.[16] The evacuation was a trial, and there was not a real fire or emergency, but it would seem that no person in the building who was in contact with the applicant was aware that it was a trial.
[14] Applicant’s Affidavit, 28 November 2006 at para 7.
[15] Applicant’s Affidavit, 28 November 2006 at para 7.
[16] Applicant’s Affidavit, 28 November 2006 at para 7.
The Court considers that the alleged discriminatory treatment does not fall within any of the heads of discrimination under s.23(1) of the DD Act. In any event, there has been no direct discrimination. The applicant was to be evacuated (if that was necessary) via the fire stairs. All persons without the applicant’s disability were evacuated that way. No person, whether with or without a disability, was allowed to use a lift. The applicant’s evacuation was dependent upon his being carried down the fire stairs by fire officers. This did not happen because it was a trial evacuation.[17] In this sense, if there was a condition or requirement imposed on the applicant for the purposes of s.6 of the DD Act (and no such condition or requirement has been articulated by the applicant in his Points of Claim) it was a requirement that was reasonable.[18] The applicant could not go down the fire stairs from the ninth floor. There was no other means of evacuation. Therefore it must be reasonable in all the circumstances of the case that the applicant wait in the well of the fire stairs and be evacuated down the fire stairs by fire officers.
[17] Affidavit of Gherardi, 8 May 2007 at paras 64-66 and Annexures XX and YY.
[18] DD Act, s 6(c).
Section 29 of the DD Act does not apply to this aspect of the applicant’s claim.
Child Support Assessment
The applicant claims that the respondent has discriminated against him on the basis of his disability in assessing the amount of child support he must pay. Section 29 of the DD Act applies to this aspect of the applicant’s claim.
Once again there is no clear articulation of the applicant’s claim, but the thrust of it appears to be that the respondent in assessing the rate of child support has discriminated against him on the basis of his disability by failing to take proper account of expenses attributable to his disability.
The applicant’s expenses related to his disability were considered by the respondent’s officers in the same manner as other persons assessed by the respondent. The respondent’s officer assessing his child support considered that he had failed to substantiate the expenses claimed. The applicant simply failed to clerically prove his claimed expenses to the satisfaction of the respondent’s officers. [19] There is no basis on the facts for finding that the applicant was discriminated against on the basis of his disability, directly or indirectly, in the respondent’s officers coming to that view.[20]
[19] Affidavit of Gherardi, 8 May 2007 at paras 3-44 and Annexure II.
[20] If the applicant is dissatisfied with the assessment/s made there are review mechanisms available under the relevant legislation, of which it would appear the applicant is well aware: see Applicant’s Affidavit 10 April 2007.
Conclusion
The applicant has failed to prove any of his claims of discrimination. His application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 5 October 2007
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