BRADLEY JOHN KINSELA v QUEENSLAND UNIVERSITY OF TECHNOLOGY
No. H 97/4
Number of pages - 7


HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (CTH)

R ATKINSON (INQUIRY COMMISSIONER)

BRISBANE, 24 February 1997 (hearing), 24 February 1997 (decision)

#DATE 24:2:1997

#ADD 18:3:1997

Appearances:

Mr D. O'Gorman of Counsel instructed by Mr Narendra Sharma for the Welfare Rights Centre Inc. for the Complainant.

Mr E. Scuderi, solicitor of Corrs Cambers Westgarth, for the Respondent.

Declaration made.

R ATKINSON (INQUIRY COMMISSIONER)

INTRODUCTION.

1. At the conclusion of the hearing into this complaint on 24 February 1997, I found the complaint substantiated. I now provide written reasons for that decision.

2. The complainant wrote to the Human Rights and Equal Opportunity Commission ("the Commission") on 29 February 1996 alleging that he had been treated unfavourably by the Queensland University of Technology ("the University" or "QUT") because of his disability. The complaint was in relation to his graduation ceremony. The complainant alleged that he would be unable to graduate alongside his fellow students due to difficulties with accessibility at the venue chosen for the ceremony. The complaint was unable to be resolved by conciliation, and was referred to me as Hearing Commissioner for hearing pursuant to section 76 of the Disability Discrimination Act 1992 (Cth) ("the Act").

3. From the original material contained in the Referral Report which I received, I have noted that the University has taken a number of steps to attempt to make the venue which they have chosen more accessible to the complainant. However, that venue has a number of inherent limitations and they have been unable to make the venue completely accessible to the complainant. The University is hopeful that, within the next year or so, the Queensland Performing Arts Trust, which is the operator of the Concert Hall, will receive the funds to enable that venue to be made completely accessible to persons with mobility impairment.

BACKGROUND TO THE COMPLAINT

4. The complainant, Mr Bradley John Kinsela, is a young man who has a disability, namely that of C5/C6 quadriplegia and as a result of that disability, he uses a manual wheelchair for mobility. For the past 3 years he has been a full-time student at the respondent's Carseldine campus, where he has studied for a Bachelor of Science (Human Services) degree. That degree is described in the QUT Faculty of Arts information booklet as including vocational preparation for disability services. The course aims include the following:

"Rapid change is a growing and persistent feature of Australian society. The population is ageing, increasing numbers of people come from non-English speaking and culturally diverse backgrounds; people with a disability seek a wide range of social and economic rights; indigenous people seek recognition of their cultural rights, concerns about family violence, child abuse and youth homelessness require creative responses... "

5. The complainant was attracted to this course after he suffered an accident which caused his disability and made him rethink his aims in life and he applied for this course as his first choice. The course philosophy is that all people should enjoy fundamental civil, political, economic, social and cultural rights, and it is hardly surprising that the complainant is supported in his complaint by an affidavit from Dr John Tomlinson, course co-ordinator of the Bachelor of Social Science (Human Services) course at QUT. Dr Tomlinson is also a member of the Faculty Teaching and Learning Committee, which is responsible for ensuring that the teaching and learning process is not inhibited in any way. He says that he is responsible for ensuring that all students are able to participate in all educational activities to help them reach their educational optimum.

6. As early as 5 September 1994, Dr Tomlinson sent a memorandum to Professor Janice Reid, the Pro-Vice-Chancellor (Academic), drawing her attention to a student's experience who uses a wheelchair for mobility and was segregated from other students during their graduation ceremony. As Dr Tomlinson said in that memo:

"Last year one of our graduates who needs a wheelchair for mobility was segregated from other students in order that he could reach the awarding dais. To enable the University to fit with modern disability practice, the University needs to find a way which can allow students with such mobility impairments to be part of the process which other students are."

DISCUSSION OF THE EVIDENCE

7. The end product of any university education is expected to be a degree or diploma, undergraduate or postgraduate, and universities have traditionally had degree-awarding ceremonies to recognise the students. These ceremonies are not individual ceremonies but take place both in a group with the group being recognised, and then with each individual being awarded their degree in public. The ceremonies are usually very moving for the family and friends of the graduating students and the last opportunity where the student group is together as a student group.

8. If the obtaining of a degree was all that was important, then that could no doubt be done by post, as is done with those students who do not wish to receive their degrees in the ceremony. However, the ceremony is much more significant than that, and involves elements of the individual and elements of the group, as I have outlined. In evidence, what occurs during the graduating ceremony was provided in some detail by the ceremonies officer at QUT, Mr Clayden, who was very helpful and candid in his evidence, both in terms of what currently occurs, the difficulties that have arisen and the steps that have been attempted to overcome those difficulties.

9. The graduating students who receive their degrees at the Concert Hall arrive at the Concert Hall and then progress to the Music Room through the Green Room, which is the robing area for students. There is a lift to that area and there will be no difficulty of access for the complainant to that area. The students then go to the foyer area in front of the Concert Hall where they mingle with their family and friends. Again, that is accessible by lift and there is no reason why Mr Kinsela cannot take part in that with the other students. The University has undertaken to make arrangements for the photographer to be available in the foyer area so that all students, including Mr Kinsela, could be photographed in the same place, thus increasing the sense of inclusion of all students.

10. At this point, however, the experience of all of the students, apart from Mr Kinsela and one other student whom I will return, would differ. The other students would return to the Music Room where they would be marshalled and then they would progress back to the foyer of the Concert Hall, down the aisles (side aisles) of the Concert Hall to the seats in the front of the Concert Hall where they would be seated as a group in alphabetical order. However, the side aisle of the Concert Hall is a progression of steps and Mr Kinsela would be unable to go down that aisle as presently constructed, and would be quite unable to sit at the front of the Concert Hall because the seating arrangements are quite unable to take a person with a wheelchair even if he were able to get there, which he is not. Instead of that, Mr Kinsela would be required to go by lift up to the side of the stage of the Concert Hall where he would be required to wait some 15 to 20 minutes without any other students or staff from the University, although it is said that the Stage Manager of the Concert Hall would be there while the audience and the other students take their place.

11. After the student procession into the seats, comes the academic procession and then the Official Party. The academic procession again comes down the steps which form the side aisle of the Concert Hall and onto the stage. Following them will be the Official Party which will include a single student, who is a representative of the students, chosen by the Dean of Arts. Last to come onto the stage would be Mr Kinsela, whose wheelchair would be pushed out from the side of the stage. Once the ceremony takes place, the students to receive their degrees proceed onto the stage, row by row, and wait offstage to come on to get their degree from the Official Party and then progress by steps back down to the seats where they wait till the ceremony is over. I believe that at the end they progress as a group out again to the foyer. Mr Kinsela would only be able to cross the stage in his wheelchair; he would not be able to come up or go back down with the rest of the students.

THE LAW

12. The question is whether or not that treatment - which is, of course obvious on its face, to be different - represents discrimination under the Act. It is submitted by the complainant that the treatment represents indirect discrimination under section 6 of the Act. Section 6 provides that:


"6 For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply.

13. I should also look at the area of discrimination. Indirect discrimination is the type of discrimination. The area of discrimination in this case is an area of discrimination - education - found under sub-section 22(2)(a) of the Act, which provides:


(a) [Access to benefit, expulsion] It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates: (b) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; ...

APPLICATION OF THE LAW

14. It is submitted that the requirement or condition that is required is that, to take part in a degree ceremony fully with the other students, Mr Kinsela would have to be able to use steps. It seems to me that this is a requirement that has been imposed. There is no doubt that, to take part in all of the ceremony, Mr Kinsela would have to be able to use steps. It seems, to my mind, to be unarguable that a substantially higher proportion of persons without Mr Kinsela's disability comply or are able to comply with that requirement, and that Mr Kinsela is not able to comply with that requirement.

15. The difficult question which remains in issue is whether or not such a requirement is reasonable. The test is whether the requirement is reasonable, having regard to the circumstances of the case.

16. In the context of the present complaint, by denying the student access or limiting the student's access to any benefit provided by the educational authority, it is abundantly clear to me that full participation in a graduation ceremony is a benefit provided by QUT to its students. If they did not think so, I presume they would not provide it.

17. It should be noted that there is no exemption for unjustifiable hardship found in section 22 of the Act. This no doubt reflects, as the complainant's counsel submitted, that access to education is valued very highly by the legislature and so did not provide that particular exemption. Indeed, that view of access to education is clearly shared by the respondent who has an admirable record in providing facilities, openness and access to its students and who, as its solicitor submitted, has a three-tiered process of access to equity: including central equity initiatives, an equity office staffed by seven people and a separate provision for divisional and faculty spending on equity issues. Indeed, I was told that $1,000,000 was spent in the last financial year on equity issues.

18. However, no submission was made by the Ceremonies Office for an allocation to deal with equity issues, and there has been no specific budgetary allocation to equity issues in the ceremonies area. The reason for this is not known to me. Perhaps it was just something that was overlooked or not seen to be a significant problem, although one would have thought that the letter from Dr Tomlinson would have drawn it to the attention of the Ceremonies Office and the University that there was a problem which would need to be dealt with.

19. If facilities are not made available to people with disabilities that will not always, as commonsense will show, cause a complaint to happen. Rather a number of people will choose just to not participate in a ceremony or a situation in which they are not made to feel welcome. However, there has been a complaint made and now the issue must be faced up to by the Ceremonies Office and the University. I do not know of any similar complaint or a decision made about any other university, although I suspect from the evidence led that similar problems are likely to exist elsewhere.

20. In weighing up then what is reasonable under sub-section 6(b) of the Act, I have had to have regard to the factors on both sides, and in the end, as I have said, the weight of the evidence suggests that it is not reasonable to require the use of steps to fully participate in a graduation ceremony. There is nothing inherent in Mr Kinsela's disability which would stop him from taking part in a graduation ceremony. It is only the specific venue in which the ceremony is proposed to take place which prevents him from taking part in the ceremony.

21. The factors which I have had regard to include the following matters. Firstly, on the one hand, the only other suitable venue proposed is the Brisbane Exhibition and Convention Centre ("the Convention Centre"), which is more expensive to hire for the night. An estimate of the extra expense has varied between some $3000 and $8000. However, it is not necessary for me to determine what the exact figure would be because that will depend on a number of variables including: for example, how often the University were to use that venue, the cost of moving certain items, the cost - if it is to be borne by the University - of construction of an extra stage, etc. However, whether or not the University pays the extra costs out of its $200,000,000 budget or the family and friends of graduating students pay more for their tickets than they would pay at the Performing Arts Centre; this is not such a great amount as to be a determining factor on its own. However, it is one of the factors I have taken into account.

22. On the other side, I should also take into account the fact that the Convention Centre has a greater capacity than the Concert Hall and the limitation which normally applies of only three extra tickets per graduating student will not need to apply, so it is possible that the University will be able to sell more tickets and so not have to increase the cost of each individual ticket to the same extent as might otherwise be the case.

23. Secondly, I have taken into account that it is undoubtedly inconvenient for the University to have to change its venue. However, inconvenience, while a matter of some weight, is not a matter of great moment compared to the rights of persons with disability to be included as ordinary members of their graduating class, and while it is inconvenient, it is certainly not impossible or not feasible for the change to be made.

24. The other factors which I have taken into account are the submission that some people may be confused and go to the wrong venue. Common experience would suggest that that will be the case, but the venues are not so far apart that someone who goes to the wrong venue cannot be sent to the right venue. I have also been asked to take into account the fact that the Concert Hall is a prestigious venue. I do take that into account, although I note that the Convention Centre is an even more recent venue and was built by the Queensland Government as a prestige venue. I find no difference in the prestige of the Concert Hall and the Convention Centre.

25. The Ceremonies Officer is concerned that an expectation has built up that the Concert Hall is the place where QUT's graduation ceremonies take place, and that is no doubt true. But that is an expectation that will have to change to take account of the fact that the legislation has changed, and the rights that are expected by and afforded to persons with disability have changed and so expectations must themselves change.

26. The last matter, and this is not by any means a trivial matter, is that a ceremony such as a graduation ceremony is a well-oiled machine. It has been run many times and runs efficiently when few things can go wrong. There are always a number of variables each year so there is always the capacity for things to go wrong, but it is certainly the job of the Ceremonies Officer to ensure that the opportunity for things to go wrong is minimised, and that the graduating students and their family and friends and the guest speaker have the best ceremony that they can have.

27. He is concerned that in a new venue the capacity for things to go wrong will increase, and I have sympathy for that point of view. However, as Counsel for the complainant, Mr O'Gorman has pointed out, these are not matters of safety or matters where someone may be injured by something going wrong. They are likely to be embarrassing glitches rather than catastrophes.

28. Moreover, one has to take into account, as well as the things I have mentioned, the objects of the Act, which are found in section 3 of the Act and which are:


"3 The objects of this Act are: (a) To eliminate as far as possible discrimination against persons on the grounds of disability in the areas of: (b) work, accommodation, education ... (c) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (d) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community. "

29. As has been pointed out by Mr O'Gorman in his submissions, the importance of statutory objects in the Act have been dealt with by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392 and 402. The principle that the particular provisions of the Act have to be read in the light of statutory objects is, of course, of particular significance in the area of human rights legislation.

30. If the venue is changed, Mr Kinsela will be able to participate in the processionary and recessionary marches. He will be able to sit with his fellow graduands during the graduation ceremony and he will be able to progress with his fellow graduands from the body of the hall to the stage for the actual presentation of the degree. These, for the reasons I set out earlier, are not trivial matters and all go to the undoubted goals of the Act of inclusiveness, accessibility and availability: see Re Department of Public Works and Housing, Queensland Cultural Centre, Stage 5, Southbank Playhouse and Wheelchair Access and Positions (1996) QADR 271 at 295.

CONCLUSION

31. My conclusion is that it is not reasonable, in the circumstances of the case, for the University to require Mr Kinsela to use steps in order to fully participate in his graduation ceremony and, accordingly, I find the complaint substantiated.

DECLARATIONS

32. The next question is what declaration I should make. The complainant has asked for the following declaration if I find the complaint substantiated: that is, a declaration that the respondent provide or arrange for the provision of facilities for the complainant's graduation ceremony that will enable the complainant to participate in that graduation ceremony in the same way that any able-bodied person will participate.

33. The respondent has a number of choices about how to do this. It may choose another venue which is fully accessible to those people with disabilities, or can be made so before 8 April when the graduation ceremony is due to take place. It may hold only that graduation ceremony in the alternate venue or it may choose to hold a group of graduation ceremonies in the alternate venue; that is entirely a matter for it.

34. Accordingly, it seems to me that that declaration made under sub-section 103(1)(b)(ii) is appropriate and does provide the flexibility to the respondent to choose how it will achieve that end. Accordingly, I make a declaration that the respondent provide or arrange for the provision of facilities for the complainant's graduation ceremony that will enable the complainant to participate in that graduation ceremony in the same way that able-bodied persons will participate.

35. I am happy to make a flexible declaration in the circumstances of a respondent who, as I have said in the body of these reasons, has shown a high degree of commitment to issues involving disability and access to education for students with disabilities as well as provision of facilities for staff with disabilities.

36. The complainant has asked me to make a recommendation under section 105 of the Act with regard to the payment of costs. This is not a costs jurisdiction and so it is not possible, even if it were appropriate, to order one party to pay the other party's costs. However, section 105 provides that if a person has made a complaint, the Commission may, in its discretion, recommend to the Attorney-General that assistance be given to the person in respect of expenses incurred by the person in connection with the inquiry.

37. I do not, as I understand it, constitute the Commission for those purposes. However, I would recommend to the Commission that they give serious consideration to making such a recommendation. The reasons for this include the fact that this is the first complaint of its type. Although it is an individual complaint, it is representative of many complaints that may otherwise be received with regard to graduation ceremonies.

38. As I have said in the body of these reasons, the respondent is hardly alone in the provision of services for graduation and, in a way, in that sense, it is a representative respondent. This has not been a claim for damages by the complainant. He merely seeks the right to receive his degree in precisely the same way as all the other students with whom he is graduating, so there is no award of damages out of which costs can be made. Accordingly, I would think it appropriate to make that recommendation to the Commission.