Matter No H98/56
Timothy Allen v United Grand Lodge of Queensland
Matter No H98/130
Timothy Allen v Kingaroy Masonic Lodge
Number of pages - 12


IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

W. J. CARTER QC

BRISBANE, 30 November and 7 December 1998 (hearing), 12 April 1999 (decision)

#DATE 12:04:1999

Appearances

F W Redmond of Counsel, instructed by G T Down Solicitor, for the complainant

R V Hanson of Queen's Counsel, instructed by John C Walker Solicitor, for the respondents

Order: complaints dismissed

W. J. CARTER QC

The complainant, who is a member of each of the respondent Masonic Lodges, suffers from a condition known as Cerebellar Ataxia as a result of which he has an uneven, unbalanced and unsteady gait. This is a disability within the meaning of the Disability Discrimination Act 1992 (Cth) ("the Act").

On 2 September 1997 he lodged a complaint with the Human Rights and Equal Opportunity Commission ("the Commission") pursuant to the Act against the United Grand Lodge of Queensland whose Masonic Temple is situated at 309 Ann Street, Brisbane and the Kingaroy Masonic Lodge whose premises are known as the Kingaroy Masonic Centre. He complains that as a member of each Lodge he is unable to access the premises of each because the premises can only be accessed by stairs which because of his disability he is unable to utilise.

Attempted conciliation of the complaints having failed the Disability Discrimination Commissioner referred the complaints to the Commission for public Inquiry pursuant to s.76(1) of the Act.

The complainant alleges that by failing to provide means of access for him to the subject premises, each Lodge has unlawfully discriminated against him on account of his disability.

Section 23(1)(a) and (c) of the Act provides:

(1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b) ...

(c)in relation to the provision of means of access to such premises; or

The Application

When the matter came on for hearing by the Commission in Brisbane on Monday 30 November 1998 and Monday 7 December 1998 counsel for the respondent submitted that by reason of certain statutory provisions the Commission should dismiss the complaint before inquiring further, on the ground that the failure of the respective Masonic organisations to provide acceptable access to their premises was not unlawful.

Section 100(a) and (b) of the Act provides:

The Commission may, at any stage of an inquiry, dismiss a complaint if:

(a) the Commission thinks that a complaint is trivial, vexatious, misconceived or lacking in substance; or

(b) the Commission is satisfied that the complaint relates to an act that is not unlawful under a provision of Part 2; or

(c) ...

During consideration of the matter after the hearing in Brisbane on 30 November and 7 December 1998 I requested that counsel for each party prepare written submissions with reference to certain questions which I raised in correspondence with them. These submissions were received from counsel in January/February 1999.

The Statutory provisions relevant to the application

Section 12 of the Act in its various sub-sections deals with the application of the Act, given the constraint upon the Parliament to enact valid laws of the Commonwealth in relation to the rights of disabled persons. Section 12(1) provides that in the section "limited application provisions" means the provisions of Divisions 1, 2 and 3 of Part 2 other than s.20, 29 and 30. Section 23 which is the source of the complaints is one of the "limited application provisions."

Section 12(8) provides:

(8) The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:

(a) give effect to the Convention; or

(b) give effect to the Covenant on Civil and Political Rights; or

(c) give effect to the International Covenant on Economic, Social and Cultural Rights; or

(d) relate to matters external to Australia; or

(e) relate to matters of international concern.

Section 12(9) provides:

(9) The limited application provisions have effect in relation to discrimination by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth, or by a person in the course of the person's duties or purported duties as an officer or employee of such a corporation.

One can immediately dismiss section 12(9) of the Act as irrelevant to the Inquiry because each of the respondent Lodges is not an incorporated body for relevant purposes.

The premises of the United Grand Lodge of Queensland are situated in the central business district of Brisbane and the real and personal property of the Lodge is vested in trustees. So too with the premises owned by the Kingaroy Lodge. This Lodge is not an incorporated body and its real and personal property is likewise vested in trustees.

The merits of the application fall to be determined with reference to section 12(8) and section 23 of the Act.

The competing submissions

Counsel for the respondents submitted that:

The Commission has no jurisdiction to entertain the complaints because:

(a) the Act (or s.23 of the Act) does not apply because s.23 does not give effect to the Convention or Conventions mentioned in s.12(8)(a)(b) or (c);

(b) the Act (or s.23 of the Act) does not apply because s.23 does not "relate to matters of international concern" (s.12(8)(e))

(c) in any event s.23 only applies to "premises that the public or a section of the public is entitled or allowed to enter or use"; the premises of each Lodge are not such premises.

Counsel for the complainant submitted that:

(a) pursuant to s.12(8)(e) the limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions relate to matters of international concern;

(b) the rights of the physically disabled are a matter of international concern;

(c) the respondents premises at Brisbane and at Kingaroy are "premises that the public or a section of the public is entitled or allowed to enter or use."

Section 12(8) of the Disability Discrimination Act

Section 23, being one of the limited application provisions of the Act, may have effect in relation to discrimination against a person with a disability to the extent that it gives effect to the Discrimination (Employment and Occupation) Convention 1958 (the "Convention"), the Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

It is common ground between the parties that the question of access to premises by persons with a disability (s.23 of the Act) does not "give effect" to the Convention or the Covenants referred to in s.12(8)(a)(b) or (c). These deal with a variety of subject matter but not with the question of access to premises by persons with a disability.

The question remains however whether s.23 has effect in relation to discrimination against a person with a disability to the extent that the provisions of s.23 "relate to matters of international concern" (s.12(8)(e)). There is a notable and significant difference in language between s.12(8)(a)(b)(c) on the one hand and s.12(8)(e) on the other. Whereas the relevant inquiry may be in an appropriate case whether a limited application provision gives "effect" to one or other of the international Covenants or the Convention (s.12(8)(a)(b)(c)), the immediate concern here is whether this limited application provision (s.23) "relates" to matters of international concern (s.12(8)(e)). This issue became the focus of counsel submissions.

Matters of international concern

The statutory inclusion of "matters of international concern" within s.12(8) of the Act probably has its origin in the judgement of Stephen J in Koowarta -v- Bjeke Petersen 1982 153 CLR at pages 216-217.

It is for the courts, not the Commission, to determine whether the relevant statutory provisions are a valid exercise of the legislative power of the Commonwealth. It is however a matter for the Commission to determine in the course of its Inquiry whether the relevant limited application provision, namely s.23, "relates" to matters of international concern, given the facts and circumstances of the particular complaint. That determination necessarily has to address the fundamental question whether the complaint in question is a proper matter for inquiry by the Commission given the terms of the statute which limits its jurisdiction and function.

Some matters of international concern are well known and easy enough to identify as such. For example, issues of nuclear disarmament and the proliferation of nuclear weapons can be readily identified as matters of international concern. Here the question arises:

Is the statutory prohibition in s.23 of the Act which makes unlawful discrimination against a person on the ground of that person's disability, by denying that person access to certain premises, a provision which relates to matters of international concern?

The further question arises as to the form which such an inquiry might take in determining whether any relevant matter is a matter of international concern. It seems clear from s.98 of the Act that for the purposes of the inquiry the Commission may inform itself of any matter in any manner it sees fit. It is not bound by the rules of evidence which may require proof of a particular matter. Rather its inquiry must be conducted with as little formality and technicality as is appropriate.

Inquiries reveal that on 4 March 1994 the General Assembly of the United Nations adopted a resolution confirming Standard Rules on the Equalisation of Opportunities for Persons with Disabilities. The document itself relates the historical background to the Resolution and cites, inter alia, the UN initiative in establishing 1981 as the International Year of Disabled Persons. Part of the introduction to the Rules read:

1. There are persons with disabilities in all parts of the world and at all levels in every society. The number of persons with disabilities in the world is large and is growing.

2. Both the causes and the consequences of disability vary throughout the world. Those variations are the result of different socio-economic circumstances and of the different provisions that States make for the well being of their citizens.

3. Present disability policy is a result of developments over the past 200 years. In many ways it reflects the general living conditions and social and economic policies of different times. In the disability field, however, there are also many specific circumstances that have influenced the living conditions of persons with disabilities. Ignorance, neglect, superstition and fear are social factors that throughout the history of disability have isolated persons with disabilities and delayed their development.

4. Over the years disability policy developed from elementary care at institutions to education for children with disabilities and rehabilitation for persons who become disabled during adult life. Through education and rehabilitation, persons with disabilities became more active and a driving force in the further development of disability policy. Organisations of persons with disabilities, their families and advocates were formed, which advocated better conditions for persons with disabilities. After the Second World War the concepts of integration and normalisation were introduced, which reflected a growing awareness of the capabilities of persons with disabilities.

5. Towards the end of the 1960s organisations of persons with disabilities in some countries started to formulate a new concept of disability. That new concept indicated the close connection between the limitations experienced by individuals with disabilities, the design and structure of their environments and the attitude of the general population. At the same time the problems of disability in developing countries were more and more highlighted. In some of those countries the percentage of the population with disabilities was estimated to be very high, and for the most part, persons with disabilities were extremely poor.

PREVIOUS INTERNATIONAL ACTION

6. The rights of persons with disabilities have been the subject of much attention in the United Nations and other international organisations over a long period of time. The most important outcome of the International Year of Disabled Persons 1981, was the World Program of Action concerning Disabled Persons, adopted by the General Assembly by its resolution 37/52 of 3rd December 1982. The Year and the World Program of Action provided a strong impetus for progress in the field. They both emphasised the rights of persons with disabilities to the same opportunities as other citizens and to an equal share in the improvements in living conditions resulting from economic and social development. There also, for the first time, handicap was defined as a function of the relationship between persons with disabilities and their environment.

TOWARDS STANDARD RULES

10 Guided by the deliberations in the General Assembly, the Economic and Social Council, at its first regular session of 1990, finally agreed to concentrate on the elaboration of an international instrument of a different kind. By its resolution 1990/26 of 24 May 1990, the Council authorised the Commission for Social Development to consider, at its 32nd Session, the establishment of an ad hoc open ended working group of government experts, funded by voluntary contributions, to elaborate standard rules on the equalisation of the opportunities for disabled children, youth and adults, in close collaboration with the specialised agencies, other inter governmental bodies and non governmental organisations, especially organisations of disabled persons. The Council also requested the Commission to finalise the text of those rules for consideration in 1993 and for submission to the General Assembly at its 48th Session.

11 The subsequent discussions in the Third Committee of the General Assembly at the 45th Session showed that there was wide support for the new initiative to elaborate standard rules on the equalisation of opportunities for persons with disabilities."

For present purposes one need only refer to Rule 5 of the Standard Rules which were adopted and which are set out in Part II headed Target Areas for Equal Participation. Rule 5 identifies one such target area which is headed Accessibility. It states by way of introduction:-

"States should recognise the overall importance of accessibility in the process of the equalisation of the opportunities in all spheres of society. For persons with disabilities of any kind, States should

(a) introduce programs of action to make the physical environment accessible; and

(b) undertake measures to provide access to information and communication."

Under the further subheading (a) Access to the Physical Environment it is said:

1. States should initiate measures to remove obstacles to participation in the physical environment. Such measures should be to develop standards and guidelines and to consider enacting legislation to ensure accessibility to various areas in society, such as housing, buildings, public transport services and other means of transportation, streets and other outdoor environments."

It is not necessary to set out the other provisions of Rule 5.

Section 23 of the Act is an example of the legislation which has been enacted to ensure accessibility for the disabled of the kind referred to in the quoted paragraph.

Clearly the United Nations Resolution and the Rules annexed evidence the joint concern of Member States to promote the equalisation of opportunities for persons with disabilities. The corollary of that proposition is that discrimination by one person against another on the ground of the latter's disability has to be rejected. The equalisation of opportunities for the disabled is the very antithesis of a regime which condones discrimination on the ground of one's disability. Therefore one can only conclude that the equalisation of opportunities for the disabled and the avoidance of discrimination on the ground of disability has become a matter of international concern and one manifestation of that concern is the United Nations Resolution referred to in some detail above.

Section 23 of the Act, one of the limited application provisions relates to that particular matter of international concern. Section 23 has a direct relationship with Rule 5 which identifies access to the physical environment as one of the target areas for equal participation by disabled persons.

I am satisfied that the Commission has the statutory jurisdiction to inquire into this complaint.

"Any premises that the public or a section of the public is entitled or allowed to enter or use"

Argument was addressed to the question whether the premises of each respondent were comprehended by s.23. Section 23 of the Act attaches "unlawfulness" to the discriminatory acts referred to in the section, but it limits the scope of potential unlawfulness, so far as access is concerned, to those premises only which the public or a section of the public is entitled or allowed to enter or use (whether for payment or not). Clearly the Act is designed to proscribe as unlawful any discrimination on the ground of a person's disability in relation to the provisions of access to such premises.

One therefore has to attempt to classify or categorise the premises to which the complaint relates and the only statutory assistance which is provided in the Act is provided by the words of the section "premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not). It is only in respect of access to "such premises" that discrimination on account of a disability may give rise to unlawfulness.

The phrase "the public or a section of the public" is the key component in qualifying the premises to which the section relates. If in respect of the premises in question those persons who constitute the public or a section of the public are entitled or allowed to enter or use them then those premises are premises defined by the section.

The evidence of Charles James Mansfield, the immediate past President of the Kingaroy Lodge, makes it clear that at the Kingaroy Lodge premises non-members of the Lodge are ordinarily denied access. The premises are specifically designed for and occupied by members of the Lodge for the purposes of Lodge meetings at which the members in common conduct their usual business. Entry is denied to non-members except in very limited circumstances. Those members of the public who have expressed an interest in becoming members of the Lodge are shown onto the premises for the purpose of inspecting them. Secondly where a Masonic member has recently died a ceremony known as a Lodge of Remembrance is held in the premises to which non-Masonic relatives of the deceased member are invited. The entry of non-members onto the premises therefore is exceptional and subject to this exception the only members of the public who are entitled or allowed to enter and use the premises are the initiated members of the Lodge. No evidence was given with specific reference to the Ann Street premises of the United Grand Lodge but it can be safely assumed that the measure of privacy which attaches to the Kingaroy Lodge premises attaches also to the premises in Ann Street, Brisbane, the property of the United Grand Lodge of Queensland.

The phrase "the public or a section of the public" has in various contexts given rise to the need for judicial interpretation. As has been said (Corporate Affairs Commission -v- Australian Central Credit Union (1985) 157 CLR 201 at 208 per Mason ACJ, Wilson, Deane and Dawson JJ) each and every citizen can be said to be a member of the public and any group of persons of two or more can be said to constitute a section of the public. However, as their Honours hasten to add, the question whether a particular person or group of persons is or are comprehended by the relevant phrase cannot be answered in the abstract (see also Campbells Cash & Carry Pty Ltd -v- The Director of Public Prosecutions). Clearly the phrase has to be understood in its statutory context and interpreted in the light of the statutory objective which the Act is designed to achieve. The Disability Discrimination Act is designed to protect the rights of the disabled. Therefore it might be argued that the relevant phrase should be interpreted broadly. At the same time the fact remains that the words in question are words of limitation in the sense that they are designed to exclude certain premises from the operation of the section.

On one view it could be said that s.23 comprehends most if not all premises in any given built environment if the custodian of the premises has granted an approval or permission to even a handful of persons to enter and use such premises. On this basis one could even include most domestic premises such as a private home if approval or permission had been given to any number of persons to enter it. On the other hand it seems more likely that the Parliament intended that the words "that the public or a section of the public is allowed or entitled to enter or use" are words designed to impose unlawfulness for discrimination in respect of access, only in respect of those premises which one might loosely describe as "public premises" as distinct from " private premises". Ordinarily one would not regard a whole range of what might be called "private" premises as distinct from public premises as premises which the public or a section of the public is entitled or allowed to enter or use. The difficulty lies in drawing the line in any particular case.

The reference to premises which the public or any section of the public is entitled or allowed to enter or use dominates the context and must therefore strongly influence the interpretation in limiting the application of the section to those premises which are usually entered or used by the public or any section thereof. It is in respect of those premises that any discrimination, with respect to access, against another on the grounds of that person's disability will give rise to the finding of unlawfulness. Premises constructed, owned and occupied for the use only of members of a Masonic Lodge would not in every day parlance be identified as premises which the public or a section of the public is entitled or allowed to enter or use. Rather the contrary. Those who are not Freemasons probably know little of the Masonic Lodge, its fundamental beliefs and ideals, its practices and rituals. Some publicity in recent years has been given by the movement itself to such matters but in general one could not confidently assert that the general public in Australia or any section of it, particularly those who are not Freemasons, could or would claim an entitlement to enter and use Lodge premises or could expect approval to be given to them for such entry or use. Lodge premises are often described in one's experience as the Masonic Temple. Obviously the premises have a specific religious or cultural existence, entry to which is confined only to those who are Lodge members or in special circumstances to specific persons who are either aspiring Freemasons or the relatives of a deceased Freemason, and then only for a specific and limited purpose.

By way of contrast the public or a section of the public might by law or custom or pursuant to some right or tradition be seen to have an entitlement to enter certain premises or to be allowed to enter them. In the latter case the allowance or permission is not so much dependent upon the specific grant of an approval or permission to the public at large or to any section of it but rather the allowed or permitted entry or use in favour of the public generally or in favour of a section of the public is acknowledged and accepted. An airport or railway terminal is only one of many such premises.

Some examples may assist a better understanding of what the Parliament intended. In the case of "public" buildings like the Houses of Parliament, the local Courthouse, the large Cathedral in a city, one can easily recognise such premises as those which the public at large is seen to have an entitlement to enter or to use or in respect of which the public is encouraged to enter and is made welcome with the implicit approval or permission of the owner. Such premises qualify as such because in common with others one does not need to possess any particular personal characteristic or quality or attribute to qualify for entry. Being a member of the public or of an identifiable section of it is sufficient. The entrants whether entitled or permitted are heterogeneous in character and are not restricted as a class by any particular or specific set of criteria. Those who enter "public" building do so as mere members of the public.

To be contrasted with this classification are premises which are essentially "private" in character - premises to which the public generally or any section thereof cannot lay claim to an entitlement or an implied authority to enter. The private home is of course the prime example. But even this apparently simple distinction is not necessarily decisive. For example a police officer(s) may be entitled by law and hence entitled to enter and use premises for the purpose of searching them for the purposes of the criminal law. Are such premises comprehended by the language of s.23 so that the obligations created by the section are imposed on the private home owner? And if not why not? It may be argued that such police officers are not for the purposes of s.23 a "section" of the public because they are a discreet selective or homogeneous group as distinct from a diverse body of people who are an amorphous group and who constitute quantitatively a section of the general public.

Again it is easy to nominate as a "section of the public" a group or discreet class of persons whose essential defining characteristic or whose specific and separate identity is based on a certain unity of purpose, for example, the members of a football club or an order of religious women or monks. Are the premises of each caught by the section if members of the public are invited to the club premises or to the convent or monastery.

And to take this point to its logical conclusion - is the owner of the private residence caught by the section if he/she issues a general invitation to other residents of the street to attend the residence for a social function? If he/she is, then it would follow that premises which are essentially private premises would become "public" premises if and when the owner issued the relevant invitation, a characteristic which would endure only for so long as the "section of the public" took advantage of the limited permission to enter. Since the objective of s.23 is to create unlawfulness the circumstances in which the unlawfulness will attach should be able to be identified with reasonable precision. It seems to be an absurdity that the owner of private premises from which the public or any section thereof are ordinarily excluded should be found to have acted unlawfully if for a discreet reason permission is given to a section of the public to enter, but one such person cannot because of a disability.

In s.23 "the public" is to be construed without limitation and is synonymous with or coterminous with "any person". In short the section is concerned to impose an obligation, for the breach of which unlawfulness will attach, in respect of those premises only to which the general public, the public at large or any member of the public is entitled or allowed to enter or use. In the context, the term "a section of the public" has a like application. Whilst the term "section of" necessarily imposes a quantitative limitation there remains an intention that the "section" must have the same general diversity as that which belongs to the whole.

Therefore what constitutes a section of the public for the purpose of s.23 will be determined having regard to the nature of the premises and the purpose for which the premises will normally be entered or used, the relationship between the premises and the public generally, the degree of control which the owner or controller of premises will lawfully exercise in respect of entry to and use of those premises, the nature and extent of the person or persons who are the usual entrants or users, whether any special relationship or connection exists between the premises and the usual entrants or users and whether a section of the public is comprised of persons possessing particular or specific characteristics which bears some special relationship or connection with the use of the particular premises.

Each case will fall to be determined by reference to its own facts and circumstances.

The question immediately arises in this case as to whether those entrants who have an entitlement or are the permitted entrants, that is the Lodge members themselves, are for the purposes of the section a "section of the public". There is obviously a close and necessary nexus between the Lodge premises and the persons who are Lodge members. Their capacity to enter and use the premises arises by virtue of their initiation to membership of the Lodge. Except in the special circumstances identified other members of the public are excluded. To borrow the phrases used in the joint judgement in the Australian Credit Union Case supra at page 209 the membership of the respective Lodges would be "both restrictive and well defined" and their capacity to enter and use the premises "would have a perceptible and rational connection" with their membership. In that case the question was whether a Credit Union was prohibited from offering to its members for purchase a proportion of units in a unit trust which owned certain premises on the ground that the members of the Credit Union did not constitute "a section of the public". Brennan J said this at page 213:

"When an offeror contemplates the making of a particular offer to a particular group, the question is whether or not that group is seen by a reasonable person in the offerors position as a section of the public. The answer to that question depends on whether there exists some particular relationship between the offeror and the group whom he has in contemplation as offerees which is apt to distinguish the group from a section of the public. But when an antecedent relationship exists between an offeror and a group of offerees and, by reason of that relationship, the offerees have a special interest in the subject matter of the offer, there is ground for distinguishing the group from the public.

Whilst the statutory and factual context in that case is very different from this, it is nonetheless permissible, by analogy, to ask whether the owner or custodian of the relevant premises or indeed any reasonable person would be likely to distinguish the Lodge membership from "a section of the public" for the purpose of determining those who would be entitled or permitted to enter or use the premises. Because of the "antecedent relationship" between Lodge members and the premises in question and because of the "special interest" which Lodge members have in entering and using "their" premises, there is in my view "ground for distinguishing" the Lodge members themselves from the public or a section of the public. Such a determination would have to been seen as resting on its own facts and circumstances and upon the special and exquisitely private relationship existing between the subject premises and its exclusive class of entrants or users.

In my view the premises of each respondent are not premises to which the public or a section of the public is entitled or allowed to enter or use (whether for payment or not), but are premises which are designed and occupied for a specific purpose and which are entered and used only by a special category of persons whose relationship with the premises is based on that special purpose and in respect of which the public or any section thereof is normally excluded.

I have also considered the question whether each respondent Lodge is a "club or unincorporated association" (see s.27 of the Act). Whether or not each respondent satisfies the statutory definition of "club" (see s.4), it is my view that the question of access to these premises remains to be determined by reference to s.23 of the Act rather then by reference to s.27. Phrases such as "access to any benefit" which appear in s.27 and also in s.22 (Education) are not intended to comprehend physical access to premises, which is dealt with exclusively in s.23.

It may be useful to note that there are in the community a variety of "club" premises designed to cater in a variety of ways for its members or permitted entrants. These range from the most humble to the most sophisticated of premises. Which premises will qualify for inclusion within the terms of s.23 and those which are to be excluded will fall to be determined on the facts and circumstances of each case.

Nor in my view should the application of s.23(1) to any premises be allowed to be unduly influenced by the terms of s.23(2) - the "unjustifiable hardship" provision. One might argue for a construction of s.23(1) which has the widest application to premises because relief or exemption on the ground on unjustifiable hardship is always available under s.23(2). However the primary function for the Commission in this case is to determine whether the particular premises, the subject matter of the complaint, fall within the class of premises defined by s.23(1). If they do and the lack of suitable access involves discrimination against a person with a defined disability on the ground of that disability then a finding of unlawfulness will be made. It is only after that finding has been made that relief from such a finding is available pursuant to s.23(2). It is important that the fact that such relief is available in certain circumstances should not be allowed to determine the question whether a finding of unlawfulness should be made in the first place. The making of that finding will depend firstly on the proper classification of the premises, that is, whether they are premises which the public or a section of the public is entitled to or allowed to enter or use and secondly on the question whether the access to the premises is such that a person is discriminated against on the ground of that persons disability.

Finally it is necessary to deal with the fact that the premises of the respondent United Grand Lodge of Queensland in Ann Street, Brisbane are included in the Schedule to the Heritage Buildings Protection Act 1990 (Qld) as a Heritage Building. The premises are identified in the Schedule as "Masonic Temple of the United Grand Lodge, 309 Ann Street Brisbane." Neither that Act nor the Queensland Heritage Act 1992 nor any other Heritage legislation of which I am aware provides for any entitlement or implied approval to the public or any section of the public to enter or use heritage buildings. This legislation is concerned to provide for the conservation of Queensland's cultural heritage and in order to achieve that objective it provides for the process of entry of certain premises onto the Heritage Register. It also governs the statutory constraints upon development applications in respect of such premises. The legislation does not touch the question of the entitlement or permission of the public or any section thereof to enter or use such premises.

In my view the complaints against each respondent is not substantiated in view of my conclusion that the premises of each respondent are not premises to which the public or a section of the public is entitled or allowed to enter or use (whether for payment or not).

Accordingly, pursuant to s.100(b) of the Act, the complaints are dismissed.