IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
WILLIAM CARTER QC
No. H 99/115
Number of pages - 25
SYDNEY, 8, 11 August 2000 (hearing), 24 August 2000 (decision)
Sarah Pritchard of counsel, instructed by the Public Interest Advocacy Centre,
for the Complainant
Janet Oakley of counsel, instructed by Barker Gosling, for the Respondent
See final paragraph.
WILLIAM CARTER QC
1. THE COMPLAINT
The Sydney 2000 Olympic Games are due to commence in Sydney on 15 September
2000 only a matter of weeks subsequent to the publication of this
determination. It is necessary to retrace the process which has occurred in
relation to this complaint, not only because it will set the chronological
context within which this part of the complaint is to be determined, but also
because it assists in defining this part of the complaint in respect of which
there was some degree of contention.
It is not intended to repeat here all that appears in the decision of the Human
Rights and Equal Opportunity Commission ("the Commission") given in Sydney on
30 September 1999 (written reasons dated 18 October 1999) in relation to
another part of the complaint which also alleged unlawful discrimination
because of the respondent's failure to provide the Ticket Book for seating at
the Olympics in braille.
On 7 June 1999 the complainant, who is blind, complained to the Commission that
he was unlawfully discriminated against by the respondent in three respects:
the failure to provide braille copies of the information required to place
orders for Olympic Games tickets; the failure to provide braille copies of the
Olympic Games souvenir programme; and the failure to provide a web site which
was accessible to the complainant.
Prior to the hearing of the "Ticket Book" component of the complaint on 27 and
28 September 1999 there had been convened a series of Directions Conferences.
In the course of one such conference, held on 31 August 1999, the Commission
directed that that part of the complaint which related to the failure to
provide the Ticket Book in braille be the subject of inquiry at a hearing
scheduled for 8-10 September 1999 (later adjourned to 27-28 September 1999) and
that the consideration of the remaining issues (including this issue) in the
complaint be adjourned to a date to be fixed. This direction is evidenced by a
document prepared by the Commission immediately subsequent to the Directions
Conference on 31 August 1999 and provided to the parties.
Subsequent to the Commission's determination in respect of the Ticket Book
component of the complaint on 30 September 1999, conciliation of the remaining
issues was attempted but on 29 November 1999 was unsuccessful.
Accordingly, by letter dated 25 February 2000, the Commission gave notice to
the parties pursuant to section 83 of the Disability Discrimination Act 1992 (Cth) ("the DDA") of its intention to resume the inquiry on 27
March 2000 into the remaining issues in the complaint of 7 June 1999. On 27
March 2000, a Directions Conference was convened at which it was intimated that
the Olympic Games Souvenir programme would be available to the complainant in
braille. The inquiry into that part of the complaint which alleged an
inaccessible web site was set down for hearing on 3 and 4 July 2000. Other
directions were made at the Directions Conference on 27 March 2000.
A dominant concern at this Directions Conference was the request by the
complainant's solicitor to the respondent's solicitor that the respondent
provide to the complainant certain information relating to the respondent's web
site which information was peculiarly within the knowledge of the respondent.
It was stated that for the inquiry relating to the inaccessible web site, the
complainant had engaged experts who could not complete their assessments unless
and until the information requested was supplied by the respondent. I pause to
mention that the relevant information has never been provided nor had it been
provided by the time of the hearing on 8 and 11 August 2000. By letter dated 4
August 2000, the solicitor for the respondent sought relief from the need to
provide the requested information on the basis that it was "highly commercially
sensitive information within the knowledge of SOCOG and its contractor". Its
contractor was IBM.
Returning to the Directions Conference on 27 March 2000 in the course of which
it was reasonably apparent that the sought after information would become
available, the focus of the discussion turned to the need for the Commission to
issue its summonses to the respondent in order to have the information
produced. At the Commission's suggestion it was agreed that the information and
any relevant documentation could be provided pursuant to a request by letter
rather than by summons. On 31 March 2000, the solicitor for the complainant
requested the sought after information by 14 April 2000 with an indication by 7
April 2000 if the respondent was unable or unwilling to supply the requested
information. The information sought was:
* a sample page in electronic format from the
proposed Results Table on the SOCOG website relating to the Olympic Games and
the Paralympic website (the latter request was abandoned upon advice by SOCOG
that it was not involved in the organisation of the Paralympic Games);
* the current content plan for the Olympic website;
* the number of templates to be used;
* the details of the tools used to generate the pages
of the Olympic website; and
* detailed calculations of certain "ball park"
It has to be said that the information was sought against the background of a
submission made on behalf of the respondent by its solicitors in response to
the original complaint dated 7 June 1999 that for SOCOG to make its web site
compatible with W3C Guidelines (a matter to be referred to below) "SOCOG would
have to retrain many of its staff and redraw its entire development
methodology...Such expense would be an unjustifiable financial imposition."
At the hearing, counsel for the respondent indicated that the case for the
respondent was that it had not unlawfully discriminated against the complainant
in breach of the DDA but that, if it had, a requirement that the web site be
made accessible to the complainant would constitute an unjustifiable hardship
within the meaning of section 11 of the DDA. The major thrust of the evidence
called for the respondent at the hearing on 8 and 11 August 2000 was focussed
on this issue.
In compliance with directions given on 27 March 2000, the complainant's witness
statement dated 29 April 2000 was delivered on 1 May 2000. In that statement,
the complainant asserted that on a visit to the SOCOG web site on 17 April
2000, some changes had been made to the site since his original complaint but
that in certain other respects the site remained inaccessible. The statement
requested that the Commission make the following orders or declarations:
1. That SOCOG include ALT text on all images and
image map links on the website;
2. That SOCOG ensure access from the Schedule page to
the Index of Sports; and
3. That SOCOG ensure access to the Results Tables on
the web site during the Olympic Games.
To put this in context, the complainant had alleged that, prior to the
lodgement of his complaint with the Commission, he had on 7 June 1999 spoken to
SOCOG personnel in the course of which he had sought information about the
availability of the Ticket Book in braille and had been told inter alia that
"blind people can access information if it is available on the internet." He
had replied "That is not correct. We can only access information if it is
presented in accordance with international accessibility guidelines. The SOCOG
website does not comply with those guidelines, so a lot of information is not
accessible to me." The reply allegedly was to the effect that a blind person
would have to engage the assistance of a sighted person to assist him.
Upon receipt of the complainant's material and in the period 27 March 2000 - 1
May 2000, the complainant, in correspondence with the respondent and the
Commission, complained of the respondent's failure to supply the information
sought in its letter dated 31 March 2000 and that, accordingly, the statements
of evidence of the two expert witnesses, Mr Worthington and Ms Treviranus, had
to be supplied in an incomplete form. The complainant requested that the
Directions Conference be reconvened which it was on 17 May 2000. On that
occasion, it was indicated on behalf of the respondent that the material sought
would be available by close of business on 19 May 2000. This never happened.
In the course of the Directions Conference on 17 May 2000 it was alleged on
behalf of the respondent that the material contained in the complainant's
statement demonstrated that the complaint had changed and that the complaint as
formulated by the complainant in his statement of 29 April 2000 was a different
complaint from that alleged in his letter of 7 June 1999. This it was said,
went to the Commission's jurisdiction to continue to inquire into the complaint
in this respect. In the course of submissions it was asserted that the
respondent now had to respond to three complaints not one as originally made.
This submission had no substance. A reading of the original complaint makes
clear the complainant's complaint of an inaccessible web site. His statement
dated 29 April 2000 equally makes clear his concern that, in spite of some
nominated changes to the web site, the site, on account of the three matters
particularised, remained inaccessible to him and that he sought from the
Commission the more specific relief specified in the final paragraph of his
The firm view of the Commission in this respect is that the complaint in
respect of the web site was always that it was inaccessible to a blind person
and that it did not comply with the W3C Guidelines for accessibility. In spite
of some changes made to it in the period 7 June 1999 - 29 April 2000 the
complaint on 1 May 2000 was that the site remained inaccessible in certain
respects particularised. At the hearing on 8 August 2000 in the
cross-examination of the complainant, it emerged that in respect of the ALT
texts (the first matter referred to the complainant in his statement of 29
April 2000) the respondent alleged that further changes to the site had cured
the complaint of inaccessibility on that account and that access to the Index
of Sports from the Schedule was available and had always been available by a
different route; namely, by entering the URL for each sport directly into the
web browser. On 27 July 2000 by letter this information, so it seems for the
first time, was conveyed to the complainant by the respondent's solicitor. That
letter indicated what the URL was for 36 nominated sports. In respect of the
third matter - access to the Results Tables - the respondent's witnesses for
the most part focussed on the matters allegedly referable to the unjustifiable
In the result therefore it is clear beyond doubt that whilst the original
complaint was broadly drawn - the web site was effectively inaccessible to a
blind person - with the passage of time since 7 June 1999 some changes to the
site by the respondent and its contractor meant that the complaint is now
particularised and/or narrowed down to a complaint of inaccessibility on
account of three specific issues, two of which the respondent says cannot now
be supported. The third, it is said, does not constitute unlawfulness on the
respondent's part because to make the site comply (in respect of the Results
Tables) would be an unjustifiable hardship. In short, the complaint is now and
has always been the same complaint as that alleged in the complainant's letter
of 7 June 1999.
Subsequent to the Directions Conference on 17 May 2000, the complainant's
solicitor continued to press unsuccessfully for the supply of the information
sought by the complainant in the letter of 31 March 2000. The events subsequent
to 17 May 2000 are collected in the Commission's decision given at a further
Directions Conference on 20 June 2000 when the respondent sought to vacate the
hearing dates 3 and 4 July 2000 which had been set on 27 March 2000. On that
occasion, the dates set for the hearing were maintained and at a further
Directions Conference on 29 June 2000 a concession was granted to the
respondent to defer its cross-examination of the complainant's witnesses were
that necessary. The complainant continued to press the respondent to provide
the information sought which had been promised at the Directions Conference on
17 May 2000 by close of business on 19 May 2000.
The Commission convened the hearing in Sydney on 3 July 2000. At its
commencement, counsel for the respondent submitted that amending legislation
which became effective from 13 April 2000 and which transferred jurisdiction to
the Federal Court of Australia in respect of complaints the hearing of which
had not commenced in the Commission prior to that date, denied jurisdiction to
the Commission in respect of this complaint. A ruling by the Commission that
this complaint was not caught by the amendment because of the directions given
on 31 August 1999 was met with counsel's statement that, in accordance with the
respondent's instructions, it was intended to seek judicial review in the
Federal Court. The Commission thereupon was required to adjourn the further
hearing sine die.
Thereupon the complainant (not the respondent) sought certain relief in the
Federal Court to test the correctness of the Commission's ruling as originally
foreshadowed by the respondent. On 10 July 2000 Hely J made certain orders. On
19 July 2000 the Commission at the request of the parties concerned a further
Directions Conference at which 8 and 11 August 2000 were the dates set for
hearing. Meanwhile, Hely J on 3 August 2000 had made orders the effect of which
was to terminate the proceedings in the Federal Court.
As pointed out above the solicitors for the respondent advised on 4 August 2000
that "the provision of the HTML source code of the Results Pages" would not be
made available because it was "highly commercially sensitive information". Nor
was the information sought by the complainant since 27 March 2000 made
available to the Commission and/or the complainant.
Accordingly, the hearing component of the Commission's inquiry was completed in
a chronological context the dominant feature of which is that the commencement
of the Sydney Olympic Games is imminent.
It is unnecessary to repeat here the relevant details which touch on matters
personal to the complainant. They are set out in the Commission's written
reasons dated 18 October 1999 for its determination of 30 September 1999
concerning the Ticket Book. They remain valid. Suffice to say that the
complainant is competent and experienced in the use of computer technology. He
frequently accesses the World Wide Web by the use of a refreshable braille
display and a web browser. Access to the internet has had an enormous
beneficial impact on his lifestyle. He can now access "an incredible array of
information" which as a blind person he could never have had access to. His
interest in the Sydney Olympic Games is patent as is his commitment to be able
to access Games information on the respondent's web site in a manner which is
2. THE STATUTORY PROVISIONS
It is the case for the complainant that in failing to provide to him its web
site in a manner by which he, a blind person, could access the information
contained within it, the respondent acted unlawfully in breach of section 24 of
(1) It is unlawful for a person who, whether for
payment or not, provides goods or services, or makes facilities available, 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 provide the other person with
those goods or services or to make those facilities available to the other
(b) in the terms or conditions on which the
first-mentioned person provides the other person with those goods or services
or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned
person provides the other person with those goods or services or makes those
facilities available to the other person.
(2) This section does not render it unlawful to
discriminate against a person on the ground of the person's disability if the
provision of the goods or services, or making facilities available, would
impose unjustifiable hardship on the person who provides the goods or services
or makes the facilities available.
By section 4 of the DDA "services" is defined to include:
(b) services relating to entertainment, recreation
It is unnecessary to repeat what is said in the Commission's decision relating
to the respondent's provision to the public of the Ticket Book and the
information which was contained in it and to the relationship between that and
section 24 of the DDA. The internet is now a well established phenomenon, its
capacity to store information of immense proportions to which one can have
access is a fact of life. The respondent in creating its own web site sought to
include in it a considerable body of information to which any person could have
access. The provision of the web site was a service relating to the provision
by the respondent of information relating to the largest and most significant
entertainment or recreation event in the history of this country. For the
respondent it is submitted that the form and content of the web site is not a
"service" within the meaning of the DDA. It is submitted that the site is
merely a "promotional" website which publishes "promotional" material. That
description is in part valid but the site is much more. It is intended to
provide a source of information concerning a large body of variable content
which can be distributed to and accessed by persons across the world. The
provision of information by the respondent via its web site is, in the
Commission's view, a service relating to the entertainment which the respondent
will provide to the world in the course of the Sydney Olympic Games. It is in
the Commission's view comprehended by section 24 of the DDA.
For the complainant it is said that to provide that service or facility in a
manner which is accessible by a sighted person but inaccessible or only partly
accessible by the complainant, a blind person, is to discriminate against him
on the ground of his disability. It is not in issue that his being blind since
birth is a disability as defined by the DDA. Accordingly, the respondent's
failure to provide an accessible website is allegedly unlawful in that it
constitutes a breach of section 24 of the DDA.
The complainant also submits that the discriminatory conduct of the respondent
was both direct (section 5 of the DDA) and indirect (section 6 of the DDA).
(1) 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, 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 are not materially different, the
discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1),
circumstances in which a person treats or would treat another person with a
disability are not materially different because of the fact that different
accommodation or services may be required by the person with a disability.
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.
The respondent's case is in part based on section 24(2) of the DDA which
relieves against a finding of unlawfulness if the provision of goods and
services in a manner which is non-discriminatory would impose unjustifiable
hardship on the person who provides the goods or services or makes the
the purposes of this Act, in determining what constitutes unjustifiable
hardship, all relevant circumstances of the particular case are to be taken
into account including:
(a) the nature of the benefit or detriment likely to
accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person
(c) the financial circumstances and the estimated
amount of expenditure required to be made by the person claiming unjustifiable
(d) in the case of the provision of services, or the
making available of facilities--an action plan given to the Commission under
The first question therefore is whether the respondent discriminated against
the complainant in providing to the complainant its web site in a form which
resulted in the site being inaccessible to him or only partly so. The question
of ensuring accessibility to the World Wide Web by persons with disabilities
was addressed in the World Wide Web Content Accessibility Guidelines which are
generally referred to as the W3C Guidelines. In short, alongside the evolving
development of the internet, the question of facilitating accessibility by
relevantly disabled persons to it was likewise the subject of professional and
scientific development. It too was to become a matter of world wide interest.
The development of guidelines has been in progress since at least 5 May 1999.
It has been pointed out above that, in its letter to the Commission dated 18
June 1999 in response to the complainant's complaint, the respondent claimed
that the W3C guidelines were then of recent origin and appeared subsequent to
the planning and "substantial implementation" of its site. On that basis it was
asserted that to ensure compliance with the W3C guidelines would constitute an
From the evidence it is implicit that the respondent's web site is and has been
in the process of continual development. Indeed it is alleged, particularly in
relation to the provision of ALT text, that this has been ongoing. A letter
from IBM to the respondent's Chief Information Officer dated 11 August 2000,
the final day of the hearing, to which later reference will be made, asserts
that ALT text was being added to images on the SOCOG website and "expected"
that this task "would be completed by 8 August 2000". This date was the first
date set for the hearing (see Exhibit 15).
The use of ALT text on images and image map links is a matter comprehended by
the W3C Guidelines. At the hearing and in the course of cross-examining the
complainant, counsel for the respondent put to the complainant that as at 8
August 2000 "ALT text has been included on all images and image maps." This was
one of the significant deficiencies alleged by the complainant in his statement
of 29 April 2000. In his response to counsel, the complainant stated that
whilst there are now ALT texts in respect of images and image maps links which
were not there before there remain links which still do not have ALT text. This
is confirmed by the evidence of Ms Treviranus.
I am satisfied that on the evidence of the complainant there have been
modifications to the site by the provision of some ALT text but that it remains
incomplete and accordingly the complainant's access to the information
contained on the site remains restricted pro tanto.
As pointed out earlier it was revealed by a letter to the complainant dated 27
July 2000 from the solicitor for the respondent, some few weeks after the date
set for the original hearing (Exhibit 5), that the complainant's concern that
he could not access the Index of Sports from the Schedule was met by the fact
that such access was possible by inserting the URL for each of the 37 sports in
the web browser. This of course assumes the knowledge of the URL for each
sport. This was, according to the complainant, an imperfect process for
accessing the Index because "that is not the way that people use web pages". He
was referring to a sighted person's use of the internet. In short, if the
access to the Index was available to him as it would be to a sighted person all
that would be required is to click the mouse or press the enter key on the link
such as "Go to Sports Index" and access would occur. The alternative provided
to the complainant by the letter dated 27 July 2000 (Exhibit 5) required of him
that on each occasion he needed to access a particular sport he needed to enter
the URL for the particular sport provided it was available to him in convenient
form or had been retained in his memory. He regards that as an imperfect mode
of access and one that need not be attempted by a sighted person.
In respect of the third matter relating to inaccessibility, it is conceded that
the Results Tables in the form proposed will be inaccessible but that it would
constitute unjustifiable hardship to require the respondent to render the same
accessible to the complainant. For the respondent, counsel put it to the
complainant that results will become available from other sources such as radio
and print media which, in respect of the latter, he could scan into his
computer. This would be a significantly less favourable process in order to
The case for the complainant is that he has been discriminated against in the
provision of services offered to the pubic by the respondent via its web site
because the respondent has treated him and proposes to treat him less
favourably, in circumstances which are the same or are not materially
different, than it has treated or proposes to treat a sighted person. This less
favourable treatment was and is because of the fact that he is blind.
In all material respects this claim of discrimination is the same as that made
in respect of the Ticket Book and determined by the Commission in its earlier
decision in respect of that part of the complaint.
At the time of the making of the complaint and at the time of his statement of
29 April 2000, the complainant was clearly the recipient of less favourable
treatment by the respondent in that he was unable to access the services
offered by the respondent by means of its web site or at best he was offered
imperfect or limited access only because of the manner in which the services
were made available and this less favourable treatment was because of his
In the period since 29 April 20000 the degree of inaccessibility has
progressively but only marginally been reduced. As at the date of hearing the
"less favourable" treatment of him in material respects has remained. ALT texts
which are required remain to be provided; access to the Index of Sports from
the Schedule remains unavailable (the proposed alternative is both unorthodox
and cumbersome and need not be resorted to by a sighted person); the Results
Table remains and will remain inaccessible to the complainant.
The detriment to the complainant on account of these matters is very
significant. His mastery of computer technology operates at a high level yet
because of his being blind he is denied access or obtains only limited access
to the respondent's web site in relation to items of information which are
important to him and which he reasonably desires to have. This detriment is the
direct consequence of his inability or limited ability to access the
information because of his lack of sight and that consequence is the product of
the discriminatory manner in which the respondent provides the relevant
In the Commission's view, the respondent has discriminated against the
complainant in breach of section 24 of the DDA in that the web site does not
include ALT text on all images and image maps links, the Index to Sports cannot
be accessed from the Schedule page and the Results Tables provided during the
Games on the web site will remain inaccessible.
The respondent has submitted that the complainant has not been the subject of
direct discrimination because he has not been treated less favourably in
respect of the web site than a person who does not suffer the complainant's
disability. This submission is rejected.
The respondent in constructing its web site (and its Ticket Book) was intending
to offer a service to the public. In the case of the web site that service
consisted in the provision of a large body of information. By the form and
content of its web site the respondent sought to make the information
available. Because of the manner in which that information was made available,
it could be accessed by a sighted person. Because of the manner which that
information was made available it could not be accessed by a blind person
because of his or her disability. This meant that, in respect of the same
information, the respondent, in the manner in which it used its computer
technology to service the needs of the public to have access to that
information, made it available to sighted persons, but it made it unavailable
or only partly available to a blind person because of the latter's disability.
It follows that, because of his or her disability, the blind person was treated
less favourably by the respondent than the sighted person.
That in my view constitutes direct discrimination within the meaning of section
5 of the DDA.
Again in my view the Commission's finding of indirect discrimination in respect
of the Ticket Book is valid and applicable in respect of access to the web site
and for the same reasons.
Therefore if it be correct that the respondent did not discriminate against the
complainant in terms of section 5 it can properly be found that indirect
discrimination occurred in terms of section 6.
The respondent in providing access to the information available on its web site
imposed upon or required of the complainant that he comply with a "requirement
or condition" that he be able to read print. That was a requirement or
condition with which a substantially higher proportion of persons without his
disability were able to comply. Whilst no specific evidence was given in the
current hearing there was evidence given to the Commission in respect of its
inquiry in the Ticket Book component of the complaint that the number of blind
persons and those who read braille was infinitesimal compared with the number
of sighted persons. In any event that fact is so well known that evidence is
hardly necessary to establish it.
Nor was it reasonable for the respondent to require the complainant to comply
with the condition having regard to the fact that the Olympic Games of which
the respondent had the conduct will be a unique event of great historical and
cultural significance. Blind as well as sighted persons can be expected to have
an equal interest in being able to be participate in and enjoy the events. It
is a primary consideration that as far as possible all Australians should have
the capacity to share equally in an event of this significance; an alternative
source which makes available the same amount or body of information is simply
not available. And finally it is clear that the complainant is not nor is he
able to comply with the relevant requirement or condition.
It follows that the facts support also or in the alternative a finding of
3.2 Unjustifiable hardship
In considering the application of section 11 to the facts of the case there is
a major issue of fact for decision based on the competing evidence of the
alleged expert witnesses called for each side. This issue of fact focuses
largely on the question of the degree of difficulty and cost involved in
providing access by a blind person to the site or that part of it which will
provide the Results Table.
In summary the evidence of the respondent is this:
* The Table of Results is made up of data sourced
from a number of different databases of results for each of 37 sporting
* The site currently consists of 6,000 pages and
approximately 55,000 pages will be generated in the course of the Games.
* There are 37 sports web page templates each with
approximately 35 result templates - in total 1,295 templates for results
* The tables of results will contain "wrapped text
* There will be approximately 6 billion "hits" on the
site and the site needs to be fast and highly responsive.
* To reformat the site and its contents in a way
which will make the web site accessible to the complainant will in effect
require the development of a new or separate site.
* Extensive changes to infrastructure are required;
there is a requirement for specialised skills which are limited and expensive;
there will be possible adverse impacts upon the support and maintenance
* One person working 8 hour business days would
require 368 days to complete the task properly.
* $2.2 million of additional infrastructure would be
required to separately host the additional designs necessary to an accessible
Table of Results.
These and other like features mean that to require the respondent to make the
site accessible to the complainant would be too onerous.
In short the respondent claims that the difficulty in providing a separately
hosted site, its cost and the risks which would be offered to the existing
developed site are such as to impose on the respondent a level of hardship
which cannot be justified.
The evidence called for the complainant can be summarised and contrasted with
that of the respondent:
* The number of templates is significantly less than
1295 and the reformatting of the templates will take considerably less than the
2 hours for each alleged by the respondent. A more realistic estimate for the
minor changes required is 10 minutes each; nor is there the need for unique
manually generated formats.
* No new infrastructure will be required because it
is allegedly in place.
* A team of one experienced developer with a group of
5-10 assistants could provide an accessible site to Level A compliance in 4
* Wrapping in each cell can be met by using a simple
device namely the inclusion of an invisible end of cell character which would
indicate to a blind person the end of the text in each cell.
* The cost of making the site accessible is a modest
* The number of templates has been estimated at 357
for 28 sports. Additional templates would be required for 37. Because of the
failure of respondent to supply the information requested by letter on 31 March
2000 the number of templates has been estimated.
In short, the evidence of Mr Worthington and Ms Treviranus strongly disputes
the thrust of the respondent's evidence which in certain respects is said to
contain "a very, very over-inflated estimate".
I will deal with the evidence called for the respondent below. It is necessary
to consider first the evidence of Mr Worthington and Ms Treviranus. Mr
Worthington's qualifications are extensive. He was the first Web Master for the
Australian Department of Defence. He was one of the architects of the
Commonwealth Government's internet and web strategy and is a recognised author
and contributor to the literature. Ms Treviranus, who is attached to the
University of Toronto enjoys an international reputation. She is the manager of
the Adaptive Technology Resource Centre (ATRC) at the University and chairs the
Authorising Tool Guidelines Group of the World Wide Web Consortium. There is no
sound basis for questioning the expertise of Mr Worthington and Ms
The evidence of these witnesses was impressive and convincing, in particular
that of Ms Treviranus.
In Ms Treviranus' view, if accessibility had been considered by the respondent
when the site was being developed it could have been totally achieved in less
than 1 percent of the time consumed in the site's development. She has
regularly visited the site and in her view it remains inaccessible in material
respects. For instance in her view in some respects the situation has worsened
because additional graphic material has been added without ALT text. In respect
of the Schedule page, which in her view is completely inaccessible, it could be
corrected by a very simple change which would take less than 1 ½ hours. Mr
Worthington expressed the view that the correction would take less time than
the time which was consumed in the hearing talking about it. In Ms Treviranus'
view it would be unnecessary to uniquely and manually generate a new format in
respect of the suggested 1295 templates. No new infrastructure would be
required; the existing team supplemented with some additional support for a
short period would be sufficient. There would be no need to develop and
implement a new navigation design. What the respondent suggested would take 25
business days could be effectively completed within a few hours.
It is not intended to detail Ms Treviranus' extensive evidence in every
respect. In short in her view the web site can be made accessible in all
material respects very simply with a minimum of difficulty, and at a modest
cost. By contrast the respondent claims that the task is one of considerable
difficulty, extremely time consuming and possible only at inordinate cost.
I will detail below my reasons for preferring the evidence Mr Worthington and
that of Ms Treviranus to that of Mr Brand and Mr Smeal who were called for the
Mr Worthington, like Ms Treviranus, has been involved with the issue over a
number of months. The requests for the information sought by the letter of 31
March 2000 was no doubt initiated by him to enable more comprehensive
assessment to be made for the purpose of completing his expert opinion. In the
absence of the information he proceeded to an assessment on the basis of
assumptions which in his view were reasonable. In the result there is no
substantial difference between the conclusions which he drew and those drawn by
Ms Treviranus. There is no satisfactory basis for the Commission rejecting as
unacceptable the view of these two very experienced experts on matters relating
to the World Wide Web.
Mr Brand and Mr Smeal, both of whom conduct consultancy businesses in Sydney
and who were engaged only in the days immediately prior to the hearing
commencing on 8 August 2000, were required to prepare and give their evidence
from positions of relative disadvantage. Their knowledge and experience with
the site was necessarily very limited and the evidence of each was effectively
based on the need to validate certain information and conclusions given to them
by Mr Max Judd of IBM and Dr Ian Reinecke, the Chief Information Officer of
SOCOG. Neither were able to confirm the information given to them nor were Mr
Judd nor Dr Reinecke called to give evidence. The only information provided by
either of the latter two persons was the letter dated 11 August 2000 (Exhibit
15) which purported to assert the truth of the facts provided to Mr Brand and
Mr Smeal. This material was unsworn and there was no opportunity by or on
behalf of the complainant to question or test its correctness. Mr Brand and Mr
Smeal both presented as honourable witnesses and whilst each sought to assert
that they supported the conclusions of, in particular, Mr Judd, there was no
capacity in either to resist questions based on the evidentiary process to
which each was subjected nor did either of them attempt to avoid the obvious
weaknesses inherent in their evidence.
Nor were they given access to information of the kind sought by Mr Worthington
or Ms Treviranus. The allegation that relevant information was commercially
sensitive and not available was raised for the first time on 4 August 2000. It
was never labelled as such in the course of the intensive Directions process
over which the Commission presided between 27 March 2000 and the commencement
of the hearing, nor is it referred to in any earlier correspondence.
Had it been raised it would have been competent to devise a procedure or
process which would have protected the commercial sensitivity of the
information, assuming of course the information qualified for that
In my view one could not validly conclude on the evidence of Mr Worthington and
Ms Treviranus that the correction of the web site to the point of making it
accessible to the complainant and other visually impaired persons was for the
respondent an unacceptable imposition. Whether the issue had been addressed at
the time the web site was in the process of development or at the time of the
complaint or now the evidence of Mr Worthington and Ms Treviranus can only
support the rejection of the assertions made by the respondent which purport to
convey the notion that the matter was and is too difficult, too onerous, too
time consuming, too risky and too expensive. Rather, the clear inference can be
drawn from the facts and circumstances that the respondent never seriously
considered the issue and only when the hearing was imminent did it attempt to
support its rejection of the complainant's complaint by resort to a process
which was both inadequate and unconvincing.
It remains to consider the provisions of section 11 and their application to
the facts of the case.
The provision of an accessible web site for the complainant and other vision
impaired persons constitutes a very considerable benefit. He and they could
access precisely the same body of information which is available to sighted
persons in relation to this event which during its currency will engage the
attention of the whole nation. This considerable benefit will be available and
the consequential detriment for the respondent will be modest. Indeed, had it
sought to address the issue earlier it would have been easily consumed in the
course of the development of the site - in Ms Treviranus' view, the additional
effort would have less than 1 percent. Even now it will take only 4 weeks to
have the site at Level A standard.
Secondly, in assessing whether any suggested hardship is unjustifiable, the
nature of the complainant's blindness and its effects in this context are
matters of considerable importance. He has been able to minimise the effects of
his blindness upon his capacity to access information available on the internet
but only if the information is presented to him in an accessible form.
SOCOG is a major agency supported by considerable financial infrastructure
including Government funding. Whilst no precise assessment can be made of the
amount required to be expended to make the web site accessible it will in
relative terms be quite modest. The fact that such a cost can be accommodated
financially is supported by the evidence and findings made in respect of the
Ticket Book component of the complaint.
Finally, reference should be made to the matter contained in section 11(d) of
the DDA. By section 60 of the DDA it is competent for a service provider, of
whom the respondent by definition is one, to prepare and implement an action
plan and to give the same to the Commission (section 64). The action plan as
provided for by section 61 must include provisions relating to:
(a) the devising of policies and programs to achieve
the objects of this Act; and
(b) the communication of these policies and programs
to persons within the service provider; and
(c) the review of practices within the service
provider with a view to the identification of any discriminatory practices;
(d) the setting of goals and targets, where these
may reasonably be determined against which the success of the plan in achieving
the objects of the Act may be assessed; and
(e) the means, other than those referred to in
paragraph (d), of evaluating the policies and programs referred to in paragraph
(f) the appointment of persons within the service
provider to implement the provisions referred to in paragraphs (a) to (e)
The respondent from the time of its formation and involvement in the
organisation of the Sydney Olympic Games was as a service provider likely to
come into contact with persons with a disability as defined by the DDA. The
complainant and those like him who are visually impaired were only one category
of such persons. Had the respondent prepared and implemented an action plan
with the provisions of the kind set out in section 61 of the DDA that would be
a relevant matter in this context. There is no evidence that the respondent
prepared and implemented such a plan. An action plan was not given to the
Commission. However, it seems to me that no adverse inference should be drawn
against the respondent in the event that it failed to prepare and implement an
action plan. The issue of whether the respondent can claim unjustifiable
hardship remains to be determined by reference to the other matters dealt with
in section 11. The several matters have to be balanced one against the other.
In the view of the Commission, the respondent cannot avoid liability for its
breach of section 24 of the DDA by its claim of unjustifiable hardship.
Finally, it remains to consider whether, even if the dominant thrust of the
respondent's evidence were to be preferred to that of Mr Worthington and Ms
Treviranus, the defence of unjustifiable hardship could be sustained. For this
purpose one can conclude that there would have been required a number of
persons working for a considerable time at significant cost to complete the
task. The respondent would allege that with the commencement of the Games
imminent it is now impossible for it to render the site accessible.
This raises the question as to the time at which a respondent in the position
of SOCOG needs to address the issue if it is to validly claim unjustifiable
In my view one who has unlawfully discriminated in breach of the DDA cannot
delay the final determination of a complaint by the Commission and take
advantage of matters consequential upon that delay in order to support its
alleged inability to cure its default. The inordinate delay by the respondent
in this case is evidenced by:
* Its failure/refusal to provide the information
sought by the complainant in its letter dated 31 March 2000.
* Its failure to provide the statements of its
witnesses as directed by the Commission.
* Its failure/refusal to reply to correspondence or
to return telephone calls in the period 17 May 2000 - 20 June 2000.
* Its attempt to vacate the hearing dates set for 3
and 4 July 2000.
* Its stated intention to pursue an unmeritorious
point in the Federal Court at the hearing on 3 July 2000 and its abandonment of
the same just weeks later.
* Its failure to provide statements of its expert
witnesses on 4 August 2000 - less than one week prior to the adjourned
* Its unsworn attempt to establish the truth of facts
alleged by it as the basis for its claim of unjustifiable hardship on the very
last date set for hearing of the matter.
Rather, the question whether a respondent can properly allege and rely upon a
claim of unjustifiable hardship has to be considered within a more reasonable
time frame. The respondent might have considered its position in relation to
the provision of an accessible web site which complied with W3C Guidelines:
* in the course of considering the preparation and
implementation of an action plan under the DDA in the course of its
organisation of the Sydney Olympic Games; or
* upon receipt of the complaint or on about 7 June
* at any time subsequent to the notice by the
Commission in February 2000 of its intention to continue to inquire into this
part of the complaint.
Had the respondent sought to consider its position in relation to unjustifiable
hardship at one or other of those times the evidence of the respondent relied
upon at the hearing would not have been sufficient to support the requirements
of section 11 of the DDA. It cannot now be seen to be advantaged by its own
default on account of the matters set out above.
In the Commission's view the issue whether unjustifiable hardship can in a
particular case relieve against a finding of discrimination cannot be seen to
vary or alter with the passage of time. Whether there has been discriminatory
conduct and whether relief is available under section 24(2) has to depend upon
the relevant matrix of fact which is at the source of the complaint. It is the
making of the complaint which activates the inquiry not only in relation to the
issue whether there has been discrimination but also whether hardship can be
relied upon. It would seem absurd to hold that the "defence" may not be
available at one point but be a decisive factor at a later time.
The only relevance of time in this context is in relation to the form of relief
which might be considered appropriate. But finally on this point it is
necessary to confirm the view that on the acceptable evidence of Mr Worthington
and Ms Treviranus there is no good reason to conclude that the sought after
access cannot be available to the complainant either by or during the course of
the Sydney Olympic Games.
The only remaining matter is that raised by the respondent namely that any
discriminatory conduct in respect of the web site was not that of the
respondent but that of its contractor IBM and there has been no complaint
The web site is the respondent's site. It has engaged within its organisation a
person who is identified as the person in charge of its information technology.
Clearly it has the control of the information to be posted on the site. All
relevant matters in relation to the site are within its control. In the course
of one Directions Conference (20 June 2000) the solicitor for the respondent
sought to vacate the set hearing dates because of the unavailability of its
relevant IT personnel.
In the Commission's view there is no sound basis for the respondent's attempt
to avoid an adverse finding against it. The fact that it engaged a consultancy
to assist it in furnishing information does not avoid the fact that it was the
respondent's site, the information was within its control, it was its
information which it seeks to distribute via its site. No evidence was given by
the respondent which contests those issues of fact.
Accordingly, the complaint is substantiated and it is proper for the Commission
to make the following determination pursuant to s.103(1) of the DDA:
1. A declaration that the respondent has engaged in
conduct that is unlawful under section 24 of the DDA in that it has provided
for the use of the complainant a web site which because of his blindness is to
a significant extent inaccessible.
2. A declaration that the respondent do all that is
necessary to render its web site accessible to the complainant by 15 September
(i) including ALT text on all images and image map
links on its web site;
(ii) providing access to the Index of Sports from the
Schedule page; and
(iii) providing access to the Results Tables to be
used on the web site during the Sydney Olympic Games.
If the respondent does not comply with the above declaration either by the
commencement of the Games or in the course thereof it is apparent that the
complainant will suffer loss and damage for which compensation might be
assessed and awarded. Accordingly, in the event of non compliance or only
partial compliance by the respondent, the complainant should have the
opportunity of reopening the question of the appropriate relief which the
Commission should order. Therefore, having made the above determination, I
adjourn this matter in case it is necessary for the complainant to consider
whether compensation should be ordered and I grant the complainant leave to
approach the Commission to have the matter relisted to consider this issue were
I certify that this and the preceding twenty three (23) pages is a true copy
of the Reasons for Decision of the Honourable W. J. Carter QC, Inquiry
Date: 24 August 2000