Catherine Clark v Internet Resources (Australia) Pty Limited


IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

DENNIS MAHONEY

No. H98/110

Number of pages - 7

SYDNEY, 1 June 1999 (hearing), 20 July 2000 (decision)

#DATE 20:07:2000

Appearances

The Complainant represented herself.

There was no appearance by the Respondent

Order

Complaint dismissed.

DENNIS MAHONEY

1.       INTRODUCTION

Catherine Louise Clark ("the complainant") has made a complaint to the Human Rights and Equal Opportunity Commission under the Disability Discrimination Act 1992 (Cth) ("the Act"). The complainant alleges that Internet Resources (Australia) Pty Limited ("the respondent") has discriminated against her contrary to the relevant legislation. I have been appointed to hold an inquiry into the complaint.

The matter came before me for hearing on 1 June 1999. The complainant appeared in person, assisted by an interpreter. The respondent did not appear. In the course of the proceeding before the Commission, both parties presented written evidence concerning the events the subject of the complaint. These have been treated as part of the material before me.

On the day of the hearing, the Commission received by facsimile, statements and other material from the respondent. A copy of the material was given to the complainant and her evidence was dealt with. The hearing proceeded upon the basis that this material may be treated as properly before me.

In the circumstances, I have felt it proper to allow the complainant seven days to make further submissions in writing to the Commission. The material placed before me during the hearing has been forwarded to the respondent as far as has been proper and the respondent has had an opportunity to deal with it.

The facts giving rise to the complaint are within a comparatively small compass. In 1998 the respondent proposed to hold a series of one-day seminars whose purpose was to instruct those attending in the use of the internet. The seminars were to be held at the University of Technology, Sydney.

The complainant was at the time employed by the Parent Council for Deaf Education Inc. Her employment involved or would involve the use of a computer. It was suggested to her by her employer that she should learn to use the internet. Accordingly, and for this purpose, she was interested in attending the respondent's seminar.

The present complaint arises because the complainant has a disability within s.4(1) of the Act. At birth she had a hearing defect and later, because of a virus, she became deaf. She is able to lip read. However she says, and I accept, that by lip reading she is not able to understand all of what is said. Where the persons concerned are persons that she knows and where what is said is said in appropriate circumstances, she is or may be able to understand a good deal of what is said. However, at a seminar given by persons with whom she is not familiar and in circumstances such as may be inferred as apt to obtain at the relevant seminar, she would be able to understand only fifty percent or less of what was said. She would, in relation to some forms of presentation, be likely to understand less than fifty percent of what was said. I accept that her disability would have prevented her understanding a substantial part of what was to be said at the seminar.

The complainant is proficient in sign language. With the aid of an interpreter with whom she is acquainted, she is able to understand substantially everything that is said. I conclude that, with the aid of such an interpreter, she would have been able to understand substantially all of what was to be said at the seminar.

What I have said relates, of course, to the oral presentation of material at the seminar. The respondent, in its material, suggests that a substantial portion of the material to be presented would be presented visually. However, having regard to the state of the evidence before me, I think it is proper to consider the matter upon the basis that, in the absence of an interpreter, she would not be able to understand a substantial amount about what was to take place at the seminar.

In a telephone conversation the complainant made known to an employee of the respondent her interest in attending the seminar. What took place during the conversation has been the subject of difference between the parties. Apart from a brief reference in the material provided by the respondent, I have before me only the complainant's account of what took place. Having had the advantage of seeing the complainant in the course of her giving evidence by sign language I accept that her account of what took place is substantially correct.

The complainant told the respondent that, if she attended the seminar, she would need the services of a sign interpreter. She asked that the respondent pay the cost of the interpreter or a portion of it: she suggested half. The respondent said that it would allow the interpreter to attend the seminar. It would not charge for the interpreter's attendance. However, it would not pay for or contribute towards the expense of an interpreter. It is this which is the basis of the complainant's complaint.

There is now no substantial contest as to the amount involved. The fee payable to the respondent for attendance at the seminar was $95.00. The cost of an interpreter was, at the time, of the order of $400 or more. It is now of the order of $500. The complainant's complaint is that the respondent, by its refusal to contribute some or all of the cost of the interpreter, discriminated against her contrary to the legislation.

The complainant has provided evidence as to the way in which she tried to persuade the respondent to meet her requirements. Her evidence is to the effect that the respondent, on several occasions, refused to talk to her and that it was less than courteous in what it said and did. If and insofar as it is relevant, her evidence, if accepted, establishes that. In the absence of evidence to the contrary, I would, were it necessary, accept her evidence as to what the respondent did or failed to do. However, the respondent's conduct is not at the heart of the complainant's complaint and I do not need to take this aspect of the matter further.

The respondent has sought to meet the complainant's complaint in more than one way. It is claimed, inter alia, that if otherwise there would have been the discrimination, the discussions with the complainant never reached the stage at which there was a refusal of what the complainant sought. The respondent has claimed that the complainant did not apply to attend the seminar but merely expressed interest in doing so. Accordingly, it did not finally refuse her request.

If and insofar as it is relevant, I am satisfied that the respondent, by what it said and did, intimated to the complainant that if she applied to attend the seminar it would not pay for or contribute towards the cost of the interpreter. It did this in terms such that, if what it did would otherwise have been discrimination, the legislation would apply.

The complainant, in her case, has indicated that she relies upon the definitions contained in s.6 of the Act and on the provisions of sections 11, 22(2)(a) and 22(4) of the Act. The respondent has indicated that it relies upon sections 3, 5, 6, 11, 24 and 100. These provisions are well understood and it is not necessary for me to set out their terms. I shall refer only to the provisions immediately relevant.

The basis of the complainant's complaint lies in s.22(2). That section provides that it is unlawful "for an educational authority to discriminate against a student on the ground of the student's disability... by denying the student access or limiting the student's access to any benefit provided by the educational authority; ....". In my opinion, the complainant's case fails for two reasons: because the respondent is not "an educational authority" within the legislation; and because what the respondent did was not discrimination within the Act.

The term "educational institution" is, by s.4(1), defined to mean "a school or college, university or other institution at which education or training is provided". As far as the evidence discloses, the respondent was not such.

The term "educational authority" is defined by the section to mean "a body or person administering an educational institution". As far as the evidence indicates, the respondent did not administer such an institution. The University at which the seminars were to be presented was an "educational institution" but the respondent did not administer it. As far as the evidence establishes it was a private company whose business, in whole or in part, involved the presentation of the relevant seminars on a commercial basis. In my opinion s.22 did not apply to it.

Nor did what the respondent did constitute discrimination within the legislation. Subject to some qualifications or exceptions, the concept of discrimination adopted by the legislation is that contained in the s.5. Section 5(1) provides that a person discriminates against another on the ground of a disability "if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person without the disability". That general concept of discrimination is, by other sections of the Act, developed or expanded and, it may be other forms of discrimination are proscribed. But in the present case, it is discrimination of the kind referred to in s.5 that is the basis of the complainant's case. Her contention has been inter alia that, within s.22(1), the respondent discriminated against her on the ground of her disability "by refusing or failing to accept" her "application for admission as a student" or by "denying" her "access... to any benefit provided by it".

In my opinion, what occurred in the present case did not constitute the treatment of the complainant "less favourably than" a person without the disability would have been treated. What the respondent did was to refuse to treat the complainant more favourably than it would have treated a person without the disability. On that basis also the complainant's case fails.

This result follows from the application of the literal terms of the legislation and in particular the concept of discrimination which has been adopted by this legislature. I have indicated, it has not been suggested nor do I find that, in the present case, the operation of that concept has been relevantly altered by other provisions of the Act.

A person with a disability such as the present complainant has may find it difficult to understand why the legislature has proscribed treating a person with a disability "less favourably" but has failed to prescribe that a person with a disability should be treated in such a manner that she will be in a position equal to that of a person without the disability. But, in my opinion, in dealing with legislation of the present kind, it is important that terms of the legislation enacted be adhered to. No doubt the legislature, or those concerned with the framing of legislation, appreciated the difference between these two approaches. No doubt it saw the difference between, on the one hand, requiring a private individual to spend such monies as will ensure that a person with a disability is not treated "less favourably" and requiring a private individual to incur the cost of placing a person with a disability on the same level as other persons. The matter is to be judged according to the terms of the legislation. The legislature has limited what it has proscribed to detriment. In saying this I am conscious that, in some provisions, the legislation may be seen to go beyond the mere prevention of detriment. But in the present case, as it had been presented, the distinction has in my opinion been maintained.

In considering this matter I have considered whether there are judicial or other decisions which would warrant my extending the operation of the legislation beyond the terms of it. I have had regard inter alia, to the decision of the Federal Court of Australia in Commonwealth of Australia -v- Humphries, 25 August 1998. And the decision of Commissioner Robert Nettlefold in Garity -v- Commonwealth Bank of Australia, 25 January 1999. It may be that others may be able to come to the conclusion that the legislation has imposed on the individuals affected a wider or different obligation in respect of persons with a disability. I do not so read the legislation. In my opinion, there is no decision which warrants the extension of the legislation to a case such as the complainant has sought to make out.

The order I make is that the complaint be dismissed. I think it is not appropriate that any other order be made.

I certify that this and the preceding 6 pages

are a true copy of the Reasons for Decision of

Inquiry Commissioner Hon. Dennis Mahoney QC.

Associate:

Dated this 20th day of July 2000