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Commission Determinations, DDA decisions

Disability Disability Rights
Friday 14 December, 2012

Commission Determinations

Last
updated: 16 October 2002

About this page

Prior to changes made
by the Human Rights Legislation Amendment Act 1999 which took effect in
April 2000, the Australian Human Rights Commission conducted
hearings and made determinations on Disability Discrimination Act complaints
referred to it by the Disability Discrimination Commissioner or delegate.
Complaints were referred to the Commission because the complaint could
not be settled by conciliation or because the nature of the matter was
such that it should be determined by the Commission. This procedure has
now been replaced by hearings by the Federal Court or Federal Magistrates
Service.

Access to Commission
determinations under the previous procedure is being maintained on this
site as a useful guide to the interpretation and application of the DDA.

Index

Employment
decisions
 
| Education
decisions
| Other
areas

Employment
decisions

2000 | 1999 | 1998
| 1997 | 1996 | 1995
| 1994

2000

McLaughlin v Commonwealth of Australia

Complaint of employment discrimination based on obesity,
chronic fatigue syndrome, multiple chemical sensitivities, sleep apnoea,
breast cancer, anxiety, depression and hypertension found unsubstantiated
and dismissed by Commission.

Eva Wu v. Eli Cohen and Express Embroidery
Pty Ltd

$17,000 compensation awarded for discrimination against
injured worker

Logan
v State of Western Australia

$35,000 damages awarded for failure properly to consider
a prison officer with a back injury for a stores/laundry position. Dismissal
from the position of prison officer found to be not unlawful: the complainant
could not perform duties of restraining prisoners which were part of the
inherent requirements of the job.

Taylor
v State of Western Australia


$5000 damages awarded for an instance of discrimination
found against police officer with head injury. Several other claims of
discrimination in this matter were rejected by the Commission.

Clark
v Internet Resources

Employment
discrimination complaint dismissed. Reminder: Decisions of the Commission
as a tribunal are subject to review and should not necessarily be taken
as authoritative, as binding precedents, or as being invariably correct

Humphries
v Commonwealth of Australia

$12000 damages awarded for employment discrimination on
rehearing of matter returned by Federal Court to Commission for reconsideration

1999

Taylor
v State of Western Australia (Western Australia Police Service)

Preliminary decision on employment discrimination complaint:
The Commission found that service as a police officer is employment for
the purposes of the DDA.

David
Loscialpo v New South Wales Police Service

A man with colour blindness was refused employment as
a police officer. The Commission dismissed the complaint, finding on the
basis of expert evidence that he was unable to perform the inherent requirements
of the job.

Brian
Ralph v Pemar Pty Ltd trading as Tuncurry Aluminium Windows


$3000 damages awarded for less favourable treatment at
work based on his being an associate of a hepatitis C positive person
(his girlfriend).

Peter
McDonald v. Hospital Superannuation Board

Discrimination was found against an employee with multiple
sclerosis on the basis of derogatory comments found to have been made.
A number of other claims of discrimination in this matter were rejected.
Damages of $22,000 were awarded.

Rees
v AusAID

A public servant with occupational overuse syndrome affecting
her ability to use a computer keyboard complained she had been discriminated
against in being refused promotion to a senior officer position. The Commission
found that data entry was a substantial part of the inherent requirements
of the particular job (despite not being emphasised in the selection documents)
but that the complainant could have performed this requirement if voice
dictation equipment and software had been provided. The employer had not
established that use of this software on its network would impose unjustifiable
hardship.

McClung
v ACT Department of Urban Services


The Commission dismissed a complaint of discrimination
against an employee with disabilities resulting from head injuries including
dizziness and impaired vision and speech. A reduction in her work to part
time was not less favourable treatment in the circumstances as it was
undertaken to accommodate the effects of her disability. Other unsatisfactory
aspects of management of the employee's situation either were not discriminatory
or else had already been adequately remedied by the Merit Protection Review
Agency.

Eyden
v Commonwealth of Australia

Discrimination found against colour blind applicant for
employment: $7525 damages awarded.

Sally
Garity v Commonwealth Bank of Australia

A vision impaired employee was found to have been discriminated
against in not being given equal access to promotional and training opportunities.
$153,500 damages were awarded. This decision also emphasises the importance
of the principle of reasonable accommodation in disability discrimination
law.

1998

Alan
Crombie v. Commonwealth of Australia


Discrimination found on basis of colour blindness. The
Commission decided that despite medical evidence supporting a ban on colour
blind people in the position concerned, other evidence indicated that
the complainant could in fact perform the inherent requirements of the
job. Compensation of $22,524 was awarded.

Dianne
Ryan v Neale Dennis and Dennis Deals Pty Ltd


A woman complained she had been discriminated against
by being dismissed from a car detailing job after disclosing to her employer
that her husband had died of AIDS. The Commission found she had been discriminated
against as an associate of a person with a disability and on the basis
of imputed disability and awarded $4000.

Abbas
Ghabche v Bill and Fotini Sclavenitis

Complaint alleging discriminatory dismissal because of
back injury dismissed. The Commission rejected the complainant's version
of events including the claim that he had in fact been dismissed.

Andrew
Hill v. Inghams Enterprises Pty Ltd


The Commission dismissed a complaint that an employee
had been discriminated against when he was required to provide a medical
certificate supporting his claim to be unable to attend compulsory training
because of a disability. The requirement was reasonable and was not less
favourable treatment than afforded to other employees.

Ewen
Macpherson v. Telspec Pty Ltd

An electrical engineer complained that he had felt forced
to resign when his duties were altered after his employer imputed to him
a disability of low tolerance to electricity. The Commission found there
had been no discrimination, and the employer had acted reasonably in the
interests of health and safety and as it would have done in the case of
any employee. This was because the employer had offered him other duties
which were within his duty statement and appropriate to his qualifications
and had only altered his duties for a brief period until an expert assessment
could be obtained to resolve the issue. The Commission said "The imputed
requirement with which the complainant was unable to comply, an inability
to operate machines without the risk of shock because of his low tolerance
to electricity, was perfectly reasonable in the short term until a definitive
medical assessment could be obtained."

John
Woodhouse v. Wood Coffill Funerals Pty Ltd

The Commission accepted evidence that a pallbearer who
could not carry coffins safely because of his disability would have been
able to perform this requirement if he were provided with a small amount
of training, which would not have imposed unjustifiable hardship. He had
been discriminated against by being dismissed and $16,730 damages were
awarded. This decision also discusses the meaning of inherent requirements.

1997

Nerilie
Humphries and Terry Humphries v. Department of Education Employment Training and
Youth Affairs
 

The Commission found that failure to provide adequate
equipment for a public servant with a vision impairment to be able to
word process properly and to contemplate higher duties was discriminatory.

See also Federal
Court decision
(Commissioner
Charlesworth was in error in basing decision on direct discrimination
rather than considering arguments on indirect; case referred back to Commission
for reconsideration
)

Daryl
Allender v. Department of Human Services, Victoria


Employee with deteriorating vision found to have been
discriminated against in termination of employment. The Commission found
that the employer should have conducted a more adequate assessment of
the employee's ability to perform job requirements. $33,529 damages were
awarded.

R
v. State of Victoria
 

The Commission dismissed a complaint by a man who has
colour blindness that he had been discriminated against in being refused
appointment as a police officer. The Commission accepted evidence that
the inherent requirements of the job required colour vision to a better
standard than the complainant could meet.

Jesus
Benedicto Soares v. Bayer Australia Ltd
 

Complaint of discrimination because of anxiety disorder
dismissed. The Commission found that the complainant had not been made
redundant because of his poor health but because his position had genuinely
been found not to be required, albeit that this had occurred while the
complainant was on sick leave.
See also Federal
Court decision
upholding HREOC procedural decisions

Barry
Howard v. CSR Ltd

Complaint of discrimination on basis of diabetes dismissed:
no evidence that the complainant's disability was the reason for his failure
to be given permanent employment.

W
v. P Pty Ltd

Commissioner Kohl found that a job applicant had been
discriminated against when an interview was scheduled in an inaccessible
building that had sixteen steps despite the complainant informing the
respondent of her inability to access such a building. The complainant
was awarded $2,130 damages in relation to this interview. A complaint
about an interview scheduled the next day at an alternative venue was
dismissed.

1996

Edna
Melvin v. Northside Community Service Incorporated


Complainant was dismissed after ten years employment with
the respondent as a child care worker. The dismissal was based on an optometrist's
report that Ms Melvin was "legally blind", which did not however answer
the questions the employer had asked, or address Ms Melvin's ability to
perform the inherent requirements of the job. Commissioner John Nader
QC found that Ms Melvin had been unlawfully discriminated against. He
accepted specialist medical and other evidence that she could in fact
perform the inherent requirements of the job. Over $56,000 in damages
awarded.

Y
v. Australia Post


A man with psychiatric disabilities complained he had
been discriminated against by being refused consideration for employment.
The respondent considered him unuitable for employment in a job with a
team environment and public contact in view of a hisotory of anti-social
behaviour. Commissioner Webster held that whilst the respondent had discriminated
against Y, the defence in s.15(4) of the DDA applied in that Y could not
perform the inherent requirements of the job given his difficulty with
social interactions.

Michael
Shying v. Australian Nuclear Science and Technology Organisation

While the complainant was on sick leave, a new position
was advertised in the area where he worked. The complainant alleged that
this meant he had been replaced. After unsuccessful discussions with his
employer he resigned and complained of discrimination under the DDA. Commissioner
Kevin O'Connor dismissed the complaint, finding that there had been an
unfortunate but unsubstantiated assumption on Mr Shying's part that he
was being replaced. Commissioner O'Connor noted however that "it is critical
that the absence of a person on leave due to disability should not be
taken as an opportunity to perpetrate a disadvantage on them".

Susan
White v. Daryl Westworth and Firvas Pty Ltd trading as Chicken A Go Go


Complainant found to have misinterpreted the respondent's
concern as to the condition of her hands and suggestion she should wear
gloves. Her resignation as a result was not a discriminatory dismissal.

1995

Amanda
McNeill v. Commonwealth of Australia


A public servant with a vision impairment whose probationary
appointment was terminated complained that she had been discriminated
against in that her poor work performance and difficulties in interpersonal
skills resulted from the facts that she did not have the appropriate equipment
to do her job and was being more intensely monitored than other employees.
The complainant required additional equipment to perform the tasks allocated
to her; this equipment included a magnifying lamp and a computer program
that magnifies text on a computer screen. Though most of this equipment
was requested before or shortly after the complainant commenced work,
all of it was not available and fully operational until ten months later.
The Commission upheld the complaint. The respondent had failed to implement
satisfactorily its Reasonable Adjustment policy. Tthe lack of operational
equipment and intense monitoring did have a direct connection with the
conduct and communications difficulties of the complainant. The complainant
would have been able to fulfil the inherent requirements of the job (and
therefore the respondent could not rely upon s.15(4) of the DDA) and only
failed to do so because of the lack of equipment and the intense monitoring
and supervision. The respondent was ordered to pay the complainant a total
of $50,900 consisting of $28,400 for loss of earnings and $22,500 for
general damages.

X
v. Department of Defence
 

The complainant, whose name was suppressed, was discharged
from the Australian Defence Forces (ADF) after testing HIV positive. Commissioner
Carter accepted evidence that, in some circumstances in the ADF, in training
or in combat duties, there is a risk of transmission from an HIV positive
soldier. However, he did not accept that this meant the complainant was
unable to perform the inherent requirements of duty in the ADF. The rule
that a HIV positive soldier could not be deployed was not itself an inherent
requirement of the job, but a rule externally imposed by the employer.

But see Federal
Court decision
overruling this decision on the meaning of
inherent requirements, and returning matter for rehearing; and
High
Court decision
confirming Federal Court and further explaining
inherent requirements and safety issues.

1994

X
v. Dr. McHugh, Auditor-General for the State of  Tasmania


A man with a mental illness complained he had ben discriminated
against when his appointment was terminated after difficulties relating
to colleagues and clients. The employer had not been informed the man
had a medical condition but not informed of its specific nature. The President
held that the complainant had been discriminated against because of manifestations
of a disability. The defence in section 15(4) of the DDA did not apply
since the complainant had not been given a fair chance to prove his capacity
to carry out the inherent requirements of the job after his return from
sick leave.

Education
decisions

2000 | 1999 | 1998
| 1997 | 1996

2000

Bishop v Sports Massage Training School
Discrimination found in failure to accommodate dyslexia
in exam procedure by providing extra time; $3000 damages awarded.

Purvis v State of NSW
School found by Commission to have discriminated by failing
to respond appropriately to behavioural disabilities. But see now Federal
Court decision reversing HREOC decision
.

Cowell
v A School
(procedure, re suppression order)

Cowell and Cowell v A School
Complaint of direct discrimination in education rejected
after matter returned to Commission by Federal Court for reconsideration.
Commissioner McEvoy interpreted DDA section 5, which deals with less favourable
treatment because of disability, as requiring a "reasonably proportionate"
response to disability because of the adjustment requirements of subsection
5(2), rather than being satisfied by purely identical treatment, but in
this case found the school had responded appropriately.


Sluggett v Flinders University of South Australia

Complaints of discrimination through difficulties in access
to premises dismissed. Alternative access routes with lifts had been available
on the university's premises and it had been the complainant's choice
whether to use them. Access difficulties at the premises of a course placement
had resulted fom the complainant' informed choice of placement not from
the University's requirement to perform a course placement.

Murphy
v NSW
(procedure)
Inquiry discontinued after death of complainant

Finney
v Hills Grammar School

(decision on damages)
$42628 damages awarded for discrimination in refusing
enrolment

Marita
Murphy and Burkhard Grahl on behalf of themselves and Sian Grahl v. The
State of NSW (NSW Dept of Education) and Houston

Discrimination on grounds of physical disabilities found
in initial refusal to accept application for enrolment and in a series
of incidents after enrolment

1999

Finney
v Hills Grammar School

Independent School found to have discriminated in refusing
enrolment of girl with spina bifida. Defence of unjustifiable hardship
not established.
See now also
Federal
Court decision

upholding Commission decision

Purvis
on behalf of Hoggan v State of NSW

Application refused to dismiss matter as having more appropriate
remedy available

1998

Mrs
J on behalf of herself and AJ v. A School


A complaint that a girl with severe difficulties climbing
stairs had been discriminated against by a school refusing to move her
home classroom downstairs was rejected. The school had offered a change
to another "house" with a downstairs home room and it was the
girl and her family's decision to reject this, rather than a condition
of being able to climb stairs being imposed by the school. The Commission
did find discrimination in some other elements of the school's meeting
of the girl's needs.
But see Federal
Court decision

overruling finding of discrimination

W
v. Flinders University of South Australia

The Commission found that a complaint of discrimination
in education because of psychiatric disabilities was not substantiated.
Problems in satisfying course requirements may have resulted from the
complainant's disability but this did not mean there had been discrimination.
Where accommodations of disability had been requested they had been granted
where this was consistent with the academic integrity of the course. A
requirement which the complainant could not comply with, to complete a
four day practical teaching component, was reasonable in the circumstances
and thus not discriminatory under the DDA.

1997

Bradley
John Kinsela v. Queensland University of Technology


A student who uses a wheelchair, complained that on completion
of his degree he would not be able to participate on the same basis as
his colleagues in the graduation ceremony which was to be held in an inaccessible
venue. Even though some arrangements could be made to accommodate him
on the stage, he would not be able to participate in the procession with
his year group and be part of the experience of receiving his degree in
the same way as everybody else. Commissioner Atkinson ordered that the
graduation ceremony be moved to an accessible venue. She found that the
requirement that graduands be able to use steps to participate fully in
the ceremony was not reasonable, and that there was an alternative venue
which could be used. In considering the "unjustifiable hardship" provisions
of the DDA, she found that there were other benefits that may accrue to
participants and their families and friends, in the use of the more accessible
venue, and that these outweighed the possible disadvantages. She pointed
out that, despite the inaccessible venue having been the traditional venue
for these ceremonies, "the legislation has changed, and the rights that
are expected by and afforded to persons with a disability have changed
and so expectations must themselves change".

H
v. S

A university student alleged he had been discriminated
against when he was denied access to a building on campus because of his
disability, a personality disorder. The respondent agreed that it had
imposed restrictions on H but said that it had done so because of complaints
made by staff about H's threatening behaviour and harassing manner. Commissioner
Webster found that there had not been direct nor indirect unlawful discrimination.
In relation to s.5 of the DDA, Commissioner Webster held that anyone who
displayed H's behaviour (whether or not they had a disability) would have
had restrictions placed on them. He also held that the requirement and
condition that S placed on H - that he be excluded from certain areas
and from approaching staff - was reasonable having regard to the circumstances
of the case.

1996

Greg
Beattie (on behalf of Kiro and Lewis Beattie) v. Maroochy Shire Council


Exclusion of non-immunised children from child care centre
found reasonably necessary in interests of public health

Other
areas

Decisions on other
areas covered by the DDA, including access to premises, goods services
and facilities, and clubs.

2000
| 1999 | 1998 | 1997
| 1996 | 1995

2000

Maguire
v SOCOG number 3
(damages)
Maguire
v SOCOG number 2
(Access to services: web page access)
Inaccessible web site found discriminatory; $20,000 damages
ordered.

Rigon
v CAMS
(Sport)
The Commission found that a racing driver with vision
in one eye had been discriminated against when his licence was suspended,
in view of evidence of defects in the licensing body's rules such as requiring
one eyed drivers to have a greater field of vision than is normal for
tow eyed drivers and expert evidence that the complainant's field of vision
was in fact sufficient.

Ian
Cooper v Coffs Harbour City Council

This decision resulted from the rehearing of a complaint
remitted by the Federal Court to the Commission (see Cooper v Coffs Harbour
Council, 1998, below) on the basis that the respondent Council would have
to be held liable for permitting the discriminatory act of developing
an inaccessible cinema unless the Council could establish that it had
operated under an honest and reasonable mistake of fact. Commissioner
Carter found that in this case "the Council did little if anything
to properly inform itself of the relevant matters so that its belief could
be supported on reasonable grounds" and was liable accordingly.

Druett
and Cooper v New South Wales
(Services; access to premises and facilities)
Two people with physical disabilities complained
they had been discriminated against in 1994 by lack of provision of access
for people who use wheelchairs to serve as jurors in certain courts in
Sydney and at Coffs Harbour. Commissioner Street found there had been
a refusal to provide the service of assisting an eligible person to perform
jury duty when Ms Druett was directed against her wishes to apply for
exemption from duty. Damages of $5000 were awarded accordingly. However,
both in relation to services and to access to premises the Commissioner
found in both cases that it would have imposed unjustifiable hardship
to achieve accessibility of jury rooms by 1994 given the commencement
of the DDA only in 1993, notwithstanding the earlier existence of equivalent
NSW statutory obligations. He referred in this context to plans and actions
put in place to achieve accessibility of NSW courts over time. This decision
also examines the distinction between premises and facilities.

Meuwissen
and Francey v Hilton Hotels (number 2)
(Access to premises/services)
Smoke removal technology not ordered - no feasible approach
identified on inquiry
( see also Francey
and Meeuwissen v. Hilton Hotels
,
1997)

Lee v Nova Cinemas and Rundle East Company
Pty Ltd
(services; access to premises)
A woman who uses a wheelchair complained that she had
been discirminated against on the basis that the only seating provided
for people who use wheelchairs is located in the first three rows of the
cinema. At a preliminary hearing the Commission accepted the argument
of the second respondent, Rundle East Company Pty Ltd, that as it leased
only the shell of a building to the first respondent and is not responsible
for the subsequent fit-out of that building, there had been no discriminatory
act by the second respondent or responsibility for any discriminatory
act by other persons.

1999

T
v Ability Options
(services; accommodation; Commonwealth programs)
A man with physical and intellectual disabilities complained
that he had been discriminated against when his residential service provider
transferred him from a facility which did not provided 24 hour care to
one which did. Commissioner Mahoney rejected the complaint, finding there
had not been any less favourbale treatment of the complainant because
of his disability and that no unreasonable requirement which he could
not comply with had been imposed.

Bryant
and Nagy v Cuna Mutual Group
(insurance)
The brother and sister of a man who had died complained
that an insurer was discriminating on grounds of their late brother's
HIV status in failing to pay on a loan insurance policy. In a preliminary
hearing Commissioner Innes decided that the beneficiaries of a deceased
persons estate could be persons aggrieved by discrimination on grounds
of the person's disability in a case such as this. He also held that the
complainants should be regarded as able to complain of discrimination
against them as associates of a person with a disbailty despite that person's
death, because to decide otherwise would be contrary to the objects of
the legislation.

Maguire
v SOCOG
(goods, services and facilities)
A man who is blind complained that he had been discriminated
against by the failure to produce the Sydney Olympic Games ticketing book
in Braille.The Commission found that discrimination
had occurred, either on the basis of less favourable treatment or on the
basis that a condition or requirement had been imposed which the complainant
could not comply with and which was unreasonable. The complexity of the
ticket book was such that having the print version read out either by
SOCOG's telephone help line or by friends or relatives was not an effective
substitute. The electronic version provided at a late stage did not provide
effective access because of defects in formatting for accessibility. The
Commission also rejected an argument of unjustifiable hardship, noting
that the cost of printing and distributing the ticket book was $7.18 million
compared to a cost of up to $17,500 on the preparation of perhaps 200
copies in Braille.The Commission found that a dominant issue on this point
was the fact that the complainant and perhaps others similarly disabled
were effectively denied access to the ticketing process. As a result of
the discriminatory act found, the complainant could not and did not apply
for tickets in the first round of allocation. The Commission ordered,
however, that the second and subsequent ticket books be provided in Braille
and that the respondent take other steps to ensure the complainant an
effective opportunity to choose and secure tickets.

Wells
v Queensland Cyclists Association Incorporated
(clubs, sport)
A man with a vision impairment complained he had been
discriminated against when he was excluded from competitive cycling after
an accident. Section 28 of the DDA regarding sport provides an exception
in subsection 3 "if the person is not reasonably capable of performing
the actions reasonably required in relation to the sporting activity".
After considering expert evidence the Commission found that the complainant
is not reasonably capable of performing the actions reasonably required
in relation to the sport of competitive road racing because on account
of his impaired vision there is a serious risk that, given the exigencies
of competitive road cycling, there is a real risk of harm not only to
the complainant himself but also to others.

Marsden
v Coffs Harbour and District Ex-Servicemen & Women's Memorial Club
Ltd
(clubs):
Discrimination not found to have occurred on basis of
addiction
but
see now
Federal
Court decision returning matter to HREOC for reconsideration

Allen
v United Grand Lodge of Queensland; Allen v Kingaroy Masonic Lodge

(access to premises, clubs)
Premises decided not to be public premises covered by
section 23; clubs provision held inapplicable. Reminder:
Decisions of the Commission as a tribunal are subject to review and should
not necessarily be taken as authoritative, as binding precedents, or as
being invariably correct

Grovenor
v Young Furniture Traders

(access to premises; goods, services and facilities):
$1000 damages awarded for refusal to allow guide dog in
shop
See now also Federal
Court decision
upholding and enforcing HREOC decision

1998

Milner
v. Odyssey House Victoria

(goods, services and facilities)
A man with a psychiatric disability complained he had
been discriminated against by a service provider when it failed to admit
him into its drug and alcohol rehabilitation program and when it failed
to appear to give evidence at a sentencing hearing before a Magistrate.
The Commission rejected the complaints. Although giving evidence could
be a service under the DDA, it could not be said that the respondent failed
or refused to attend to give evidence, because it had not in fact been
asked to do so. It was not possible for Odyssey House to admit the complainant
because the magistrate had decided in favour of a prison sentence rather
than in favour of a program such as that provided by Odyssey House.In
any event, the complainant had required psychiatric services which were
not within the services Odyssey House was in the business of providing.
If he had been refused drug rehabilitation services (which were within
Odyssey House's services) because of his psychiatric disability, the Commissioner
found that to provide services to the complainant would have imposed unjustifiable
hardship, because of the financial consequences of providing additional
psychiatric support and the impact of the complainant's disability on
the therapeutic community within the centre.

Ward
v. Linegar and State of Tasmania

(victimisation)
A nurse who had previously lodged a complaint of disability
discrimination complained she had been victimised when her supervisor
reported her to the relevant professional standards body. The Commission
rejected the complaint. The reporting had occurred because of genuine
concerns regarding performance and public safety and not because of the
earlier complaint.

1997

Ian
Cooper v. Coffs Harbour City Council
 
(access to premises)
Council held not liable for permitting discrimination
in approving inaccessible development
But see Federal
Court decision

R
v. Nunawading Tennis Club

(clubs)
A man with a psychological disorder complained he had
been dicriminated against when he was suspended from membership after
non-participation in club events and inappropriate behaviour. Commissioner
Dodson rejected the complaint. There had been no less favourable treatment
because of disability and thus no direct discrimination. So far as indirect
discrimination went, while the complainant may have been less able than
people without his disability to comply with a condition that he control
his behaviour, the Commissioner found no evidence that this requirement
was unreasonable in the circumstances.

Ian
Cooper and Others v. Holiday Coast Cinema Centres Pty Ltd

(access to premises)
The complainants alleged unlawful discrimination in the
building of a new cinema in an existing complex with access being only
by means of stairs. The Commission noted that this in effect imposed a
condition or requirement of being able to negotiate stairs or else being
prepared to be carried, and that this would be unlawful indirect discrimination
unless the unjustifiable hardship defence were established. Commissioner
Keim rejected arguments that provision of access was not permitted in
the circumstances under the Buidling Code of Australia. He found that
to be required to install platform lifts immediately would involve unjustifiable
hardship in the present financial circumstances of the respondent but
to do so within five years would not. Accordingly he decided that the
respondent should be required to enter into a deed undertaking to provide
access by 2002.

Brown
v. Birss Nominees Pty Ltd

(access to premises; goods, services and facilities)
$1000 damages awarded for refusal of access to caravan
park for man with hearing dog.

White
v. Crown Ltd

(access to premises; goods, services and facilities)
The complainant suffers from an Acquired Brain Injury,
(ABI) such that on occasions his gait and speech make him appear intoxicated
when in fact he is not. The complaint relates to two occasions when the
complainant attempted to enter Crown Casino (owned by Crown Limited) and
had difficulties entering the Casino. The Commission found there had been
no unlawful discrimination. The Commissioner held that there was no direct
discrimination because if a person without ABI had manifested the same
symptoms as Mr White the casino would have reacted in the same fashion
on the two occasions that Mr White was either denied entry or delayed
at entry, so that there was no less favourable treatment than would have
been afforded to a person without a disability in similar circumstances.
There was no indirect discrimination because the need for the Casino to
comply with the Liquor Act made reasonable a requirement to be sober,
and for entry by a person who did not appear sober to be subject to further
examination rather than being immediate and automatic. The casino was
found to have applied its requirements reasonably in the circumstances.

Holmes
v. Northern Territory of Australia

(goods, services and facilities)
The complainant, who has a paranoid mental illness, alleged
that he was discriminated against by being denied access to his medical
file. Commissioner McEvoy found that the respondent denied Mr Holmes access
to his medical file because of his disability but she did not find that
this constituted unlawful discrimination. Commissioner McEvoy held that
where a respondent refuses to provide a service (in this case providing
medical records to a patient) because a clinical assessment has been made
that to do so would lead to deleterious effects on the complainant, then
it does not necessarily amount to "less favourable treatment".
Further, the facts did not fit the definition of discrimination in section
5: that is, the circumstances of a person with the complainant's disability
seeking access to a medical file are materially different from those of
a person without that disability. The Commissioner also held that there
was no indirect discrimination as the requirement or condition (that the
release of the information not be prejudicial to the patient's health)
was a reasonable one. If there was in fact unlawful discrimination, then
the respondent would have succeeded on raising a defence of unjustifiable
hardship because to release the file would cause detriment to the respondent
and its staff.
See also
Federal
Court decision

Francey
and Meeuwissen v. Hilton Hotels

(access to premises; goods services and facilities)
Requirement to be able to tolerate cigarette smoke found
unreasonable and discriminatory; $2000 damages
(see now also Meuwissen and Francey v Hilton Hotels (number 2)

Adams
v. Arizona Bay Pty. Ltd., Charlie Habib and Bunge Pty Ltd

(goods, services and facilities)
Discrimination and harassment found in provision of taxi
services to person with physical disability

1996


McLean v. Airlines of Tasmania Pty Ltd

(goods, services and facilities)
Mr McLean has a severe mobility disability such that he
uses a wheelchair. He cannot wheel this himself, or get into or out of
it without assistance. He complained that Airlines of Tasmania (AT) would
not allow him to travel unaccompanied. Mr McLean, who had previously travelled
unaccompanied on large domestic airlines, alleged that AT had discriminated
against him on the grounds of his disability. AT argued that their aircraft
was very small with an aisle too narrow for a wheelchair, inappropriate
emergency exits and equipment and, because it seated only 19 passengers,
no flight attendant to assist Mr McLean. Mr McLean stated he was willing
to risk being left behind in an emergency. Commissioner Webster considered
that human nature would not allow Mr McLean's fellow passengers to abandon
him and they may be put at risk themselves in assisting him. Hence his
unaccompanied presence might endanger the crew, the other passengers and
even rescue workers. On balance the Commissioner considered that AT's
discrimination against Mr McLean was not unlawful as his presence on the
flight would impose an unjustifiable hardship on the Airline.


Jennings v. Guan Lee

(access to premises; goods, services and facilities)
A woman with a vision impairment complained that a restaurant
proprietor would not allow her guide dog to remain inside. At hearing
the proprietor did not contest the matter but told Commissionthat he had
not understood that guide dogs were allowed in his restaurant. He gave
Mrs Jennings an unreserved public apology. Commissioner Nader awarded
the complainant the sum of $3,000 by way of compensation for injured feelings,
distress and embarrassment caused to her by the respondent's conduct.

X
and Y v. The State of Western Australia

(goods, services and facilities)
Two HIV positive prisoners alleged denial of educational
opportunities, work opportunities, sport and recreation, and on one occasion,
access to medical treatment due to a policy of segregation of HIV positive
prisoners. The Commissioner rejected arguments that segregation was necessary
in the interests of public health and accepted evidence that it was not.
The Commissioner further found that the policy ought to have been fully
reviewed in the time between when it was put in place in 1985 and the
time of the decision considering the growth in knowledge regarding HIV
transmission.

1995

Australian
Association of the Deaf and Disabled People s International (Australia)
Ltd v. Telstra Corporation Ltd
(goods, services and facilities)
This is the decision on remedies following the earlier
decision in Scott v Telstra on liability under the DDA. Sir Ron Wilson
decided, and Telstra agreed, that Telstra would supply to persons who
are profoundly deaf (and not eligible for a TTY under the Government's
Disability Strategy Policy) the following: a voucher for $600 for the
acquisition of a TTY; not less than five years later another voucher for
a replacement TTY; and if within 5 years of the first voucher, the TTY
needs replacing, a further voucher for a replacement TTY. If a TTY is
purchased that is less than $600 the balance may be put towards maintenance
costs. The vouchers to be supplied by 1 March 1996.

Scott v. Telstra Corporation (goods, services
and facilities)
The complainants alleged that Telstra discriminated against
profoundly deaf people in that it does not supply TTYs (teletypwriters)
whereas it provides access to the telecommunications network to persons
with hearing by way of a standard touchtone telephone. The respondents
argued that it was not part of their service to provide TTYs and that
to do so would involve unjustifiable hardship. The President found it
artificial for the respondent to limit the definition of its service to
the products it supplies (the line and touchtone phone) rather than what
those products achieve (communication over the network). He held that
there was indirect discrimination pursuant to s.6 in that: (a) the requirement
of gaining access to the service is to be able to use a touchtone phone;
(b) substantially more persons without profound deafness can comply with
this requirement than those who are profoundly deaf; and (c) and the condition
is unreasonable. In relation to unjustifiable hardship, the complainants
produced evidence that if the respondent had to supply TTYs to 21,000
profoundly deaf persons, any loss suffered could be recovered by imposing
an additional 30 cents charge on each of the respondents' annual accounts.
The respondents produced evidence (most of which was the subject of a
suppression order as it was commercial-in-confidence) that it would suffer
a substantial financial loss if it had to supply TTYs to deaf people.
It also relied upon evidence that the loss would be even greater if, as
a result of a finding of unlawfulness, it had to provide equipment to
all people with disabilities. The President thought that unjustifiable
hardship should be determined by: (1) identifying what magnitude of difficulty
would confront the respondent (from the point of view of the respondent
and the objective bystander); and (2) establishing whether or not imposing
the relevant obligation is justified by the benefits of fairness that
would come from imposing it. The President accepted the calculations of
the complainants as being the more accurate indication of the financial
impact the respondent would experience. He applied these calculations
in the test outlined above and found that the hardship was not unjustifiable
in all the circumstances. Furthermore, the President rejected the respondent's
attempt to rely upon the financial impact that would result from any far-reaching
effect of the finding of unlawfulness. The ultimate finding, therefore,
was that the complaints of discrimination were substantiated.