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Faye Druett and Ian Cooper v. State of New South Wales

Disability Disability Rights
Friday 14 December, 2012


Faye Druett and Ian Cooper v. State of New South Wales


IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (CTH)

JUDGE: ALEXANDER STREET SC (Inquiry Commissioner)

No. H99/6 and H98/70

Number of pages - 16

DATE OF HEARING: 20 and 23 March 2000

ORAL REASONS FOR DECISION: 23 March 2000

DATE OF WRITTEN REASONS: 17 April 2000

#DATE 17:04:2000

Appearances:

Ms K L Eastman of Counsel instructed by the Disability Discrimination Centre
(Inc) appeared for the complainants

Ms C Ronalds of Counsel instructed by the Crown Solicitor's Office appeared for
the respondent

ALEXANDER STREET SC

1.       INTRODUCTION

A direction was made on 28 June 1999 by Commissioner Hon. John Brownie under
section 81 of the Disability Discrimination Act 1992 (Cth) ("DDA") that
a single inquiry be held in relation to the complaints of Faye Druett and Ian
Cooper against the State of New South Wales. Both complaints involve the
absence of wheelchair access to the jury box and jury room in a State of New
South Wales Court after service of a summons upon the complainants to perform
jury duty under the Jury Act 1977 (NSW). The Commission has now held a
single inquiry in relation to those complaints. In the course of this
administrative single inquiry evidence has been adduced and submissions,
written and oral, have been made on behalf of both complainants and by the
respondent. These matters were referred for public hearing pursuant to section
76(1)(b) of the DDA as endeavours by the Acting Disability Discrimination
Commissioner prior to this inquiry to resolve each complaint by conciliation
were unsuccessful. The inquiry has been conducted with as little formality and
technicality and as much expedition as the DDA and proper consideration permit
in accordance with section 98 of the DDA. The DDA applies under sections 12(2)
and 12(8) to the alleged acts the subject of each complaint.

I conducted the inquiry on 20 and 23 March 2000 and gave my oral reasons for
decision at the conclusion of that inquiry. These are my written reasons for
decision.

2.       COMPLAINT OF FAYE DRUETT

There is no dispute that Faye Druett is an aggrieved person who has lodged a
complaint within the meaning of section 69 of the DDA. Ms Druett has juvenile
rheumatoid arthritis resulting in a partial loss of body functions and for
mobility requires the use of a wheelchair.

The jury summons to Ms Druett dated 22 April 1994 required attendance at the
Downing Centre, 143 Liverpool Street, Sydney on Wednesday 25 May 1994. The
statutory declaration on the reverse side completed by Ms Druett recorded

"That the courts do not provide facilities which allow me to participate. I
believe the organisation has breached the Disability Discrimination Act."

A letter dated 15 February 1995 from the New South Wales Disability
Discrimination Legal Centre was sent to the Commission attaching a complaint on
behalf of Ms Druett. In that complaint the following was stated:

"Ms Druett complied with the summons and presented herself on 25 May 1994 in
the jury assembly room of the Downing Centre which is located on the lower
ground floor of the building and which was accessible to her.

She along with other prospective jurors was then directed to court number 1.
At the door of this court a sheriff's officer spoke to her and said words to
the effect that she would be unable to be empanelled as she would be unable to
enter the jury box, because there was no room for a wheelchair. He also told
her that there was no accessible toilets in the jury deliberation room.

Ms Druett suggested that an officer could be made available to accompany her to
an accessible toilet in the Downing Centre precinct if the need arose to use
the facilities. The officer replied that they may not be able to provide such
a person. Even if such an officer were available it might not be possible for
a juror to use facilities that other members of the public use. A juror might
meet with witnesses or other persons associated with the trial to which she is
allocated. Therefore being accompanied by an officer to toilet facilities
would be unlikely to be a satisfactory solution.

The sheriff's officer then suggested that Ms Druett should go to the office and
apply for an exemption from jury service. Ms Druett strongly objected to this
and made it clear to the sheriff's officer that she did not wish to apply for
an exemption and that she wanted to have the opportunity to participate as a
juror in the same manner as any other member of the public ...

The sheriff's officer accompanied Ms Druett to the sheriff's office where she
filled in a statutory declaration on the back of the Jury Summons ...

The respondents have indirectly discriminated against Ms Druett by requiring
her to be able to access jury facilities without the use of her wheelchair in
order to allow her an opportunity to participate as a juror and access the
court's premises and facilities provided for jurors ...

Ms Druett was further discriminated against by the failure of the sheriff to
pay her for her attendance at court on 25 May 1994..."

A letter from the Attorney General's Department to the Commission dated 9
February 1996 responds to the complaint of Ms Druett. The letter indicates
that the Attorney General's Department was recently amalgamated with the
Department of Courts Administration and that prior to the amalgamation both
Departments formulated their own disability strategic plans. A copy of the
former Department of Courts Administration Plan was attached and it was stated
that the Attorney General's Department was currently developing a new
disability strategic plan. The letter recorded that in 1992/93 the former
Department of Courts Administration Jury Task Force considered the conditions
under which jurors serve, including accommodation and amenities. The letter
stated that whilst the Task Force addressed access to jury assembly and
deliberation areas, it did not address in-court facilities. It is alleged that
this was because it was thought that Australian Institute of Justice
Administration (AIJA) research would address this issue. However the AIJA
report, when published, failed to address this issue.

The letter continues to make reference to a commitment to adhere to the
Building Code of Australia and to develop a court standard in conjunction with
other States for new buildings. The letter records that there is level street
access to the Downing Centre and by lifts and general door access to each court
room. It is noted that there are two courts on the ground floor which are
accessed up two steps. The letter records that there are stairs to the jury
box in each court room and records:

"Each jury area has been designed within the limitations of the court room
layout and wheelchair placement adjacent to the existing tiered seating is
acknowledged to be difficult.

Disabled juror toilet facilities are provided in the jury assembly room but not
in the jury deliberating rooms. Disabled toilets are provided on the lower
ground and fifth floor of the Centre."

The letter records that a Disability Strategic Plan has been in place since
April 1995 and was currently being revised.

A further letter from the Attorney General's Department to the Commission dated
15 August 1996 stated as follows:

"Improvements in existing court houses have been incorporated into
refurbishment projects where possible. The Department is responsible for 161
court locations throughout New South Wales, 83% of which are heritage listed,
and the Department is faced with the challenge of removing barriers to access
to all persons who need the many services provided by all of these courts. The
modification of these courts to meet today's standards is a major task as a
result of heritage constraints, lack of space or expense.

Over the recent years, however, access ramps, handrails, special counters,
disabled toilets and other services have been provided at numerous courts. The
measures reflect the priority in the draft disability strategic plan of the
former Department of Courts Administration that the services provided by the
courts be accessible."

The letter notes amendments to the Jury Summons form so that the Sheriff can
provide assistance to a prospective juror. The letter also notes that sound
amplification has been installed in some courts, mobile infra red hearing
systems are now available on a needs basis, moveable plug in microphones are
being provided in courts to assist those witnesses who are unable to use the
existing witness box and parking for persons with a disability is provided
where possible. The letter also records:

"I have been advised by the Director, Financial and Strategic Services of my
Department that the decision that it would be cost prohibitive to rebuild the
court rooms at the Downing Centre was based on the present planning and layout
of the court rooms and the functioning of the court process within the room. A
considerable amount of joinery work would be required and with the additional
cost of lifting devices would result in an estimated cost of $100,000 per court
room.

The design plans for the Downing Centre were approved in 1987. It has a
Permanent Conservation Order placed on it and it is heritage listed. All
planned facilities for people with a disability were included in the
renovation, no proposal was refused and no exemptions were sought.

Although there are no toilets for people with a disability in the Jury
Deliberation Rooms, there is such a toilet in the Jury Assembly Room which is
located on the lower ground floor. Consequently, a person with a disability
would have access to toilet facilities without possible contact with
witnesses."

A further letter from the Attorney General's Department dated 8 April 1998
records that the Attorney General's Department's Strategic Plan has been lodged
with the Commission as provided for by section 64 of the DDA and receipt of the
plan was acknowledged by the Commission on 2 December 1997. I note that the
tender of the correspondence from the Attorney General's Department annexed to
the complaint was the subject of objection. However in the absence of any
apparent real prejudice and in accordance with section 98(1)(b) of the DDA I
admitted the same into evidence pursuant to section 98(1)(a). I am not
persuaded that the hearsay facts to which I have referred in the correspondence
from the Attorney General's Department are the subject of genuine dispute or
are otherwise unreliable in any material respect.

It is also common ground from the points of claim and amended defence that the
following matters are not in issue:-

(a)       On 25 May 1994 Ms Druett attended the District
Court at the Downing Centre and was prohibited by the sheriff's officer from
entering court number 1, where potential jury panel members where situated;

(b)       The sheriff's officer told Ms Druett that she
could be excused from jury service which the complainant disputed;

(c)       Ms Druett was informed by the sheriff's officer
that the jury room and jury box were not wheelchair accessible, and she was
told that she could not participate as jurors had to sit in the jury box;

(d)       Ms Druett was informed by the sheriff's officer
that she would not be escorted to the accessible toilet facilities if she was
empanelled;

(e)       The sheriff's officer prevented Ms Druett from
entering court number 1 where other potential jury panel members were
situated;

(f)       As the jury box and jury room facilities were not
wheelchair accessible the respondent prevented or proposed to prevent Ms Druett
from entering the jury room and jury box in the event she was empanelled as a
juror;

(g)       The sheriff's officer told Ms Druett to sign the
statutory declaration excusing her from jury duty.

3.       ISSUES JOINED ON POINTS OF CLAIM AND AMENDED
POINTS OF DEFENCE IN RELATION TO THE COMPLAINT OF FAYE DRUETT

The points of claim alleges that there was an act of refusal to provide Ms
Druett with services and facilities involved with participation in jury service
on 25 May 1994 and asserts that this refusal amounts to a breach of section
24(1)(a), (b) and (c) of the DDA by reason of the act of refusal falling within
section 5.

The points of claim further allege a breach of section 24(1)(a), (b) and (c) of
the DDA by reason of the act of refusal on the basis that the refusal falls
within section 6.

The points of claim further allege an act of refusal to allow Ms Druett access
to or the use of the premises or facilities at 143 Liverpool Street Sydney and
that this refusal amounts to a breach of section 23(1)(a), (b), (c), (d) and
(e) of the DDA on the basis that the act of refusal falls within section 5.

The points of claim further allege that the act of refusal amounts to a breach
of section 23(1)(a), (b), (c), (d) and (e) on the basis that the act of refusal
falls within section 6.

The points of claim further allege that the act on 25 May 1994 of requiring Ms
Druett to leave the premises amounted to a breach of section 23(1)(f) of the
DDA on the basis that the said act falls within section 5. The amended points
of defence rely upon alleged unjustifiable hardship in answer to the alleged
breach of section 24(1) and the alleged breach of section 23(1)(c).

4.       COMPLAINT OF IAN COOPER

There is no dispute that Ian Cooper is an aggrieved person entitled to lodge a
complaint within the meaning of section 69 of the DDA. Mr Cooper has a partial
loss of body functions from limb girdle muscular dystrophy and he requires the
use of a wheelchair for mobility.

Mr Cooper wrote a letter of complaint to the Commission dated 20 November 1996
in which he alleged that he had been discriminated against and denied the right
to participate as a juror at the Coffs Harbour court house on Monday, 18
November 1996.

A letter was sent by the Attorney General's Department dated 23 May 1997 to the
Commission in response to the complaint. The letter stated that the Australian
Institute on Inclusive Communities (AIIC) had been engaged to assist in
developing a disability strategic/action plan for the Attorney General's
Department and a draft disability strategic/action plan and draft access
guidelines had been developed. The letter also recorded that improvements to
existing court houses have been incorporated into refurbishment projects where
possible. The letter noted that the Attorney General's Department was
responsible for 161 court locations throughout New South Wales, 83% of which
are heritage listed and that modification of these courts to meet "today's
standards" is a major task as a result of heritage constraints, expense or lack
of space. The letter also recorded that access ramps, hand rails, special
counters, disabled toilets and other services had over recent years been
provided at numerous locations as a result of steps taken under a draft
disability strategic plan of the former Department of Courts and
Administration. A letter from the Attorney General's Department dated 20
November 1997 stated that the Coffs Harbour Court house, as at the time of the
complaint, was a two storey building built in 1961 and was not a heritage
significant building. I note that objection was taken to the correspondence
from the Attorney General's Department and for the same reasons as dealt with
above in relation to the complaint of Ms Druett I admitted the material. I am
not persuaded that the hearsay facts I have referred to are genuinely in
dispute or otherwise unreliable in any material respect.

The jury summons issued to Mr Cooper dated 18 October 1996 contained a
reasonably prominent box on the face of the summons recording the following:

"If you have a disability and are likely to need assistance to enable you to
participate as a juror please ring the number shown in the ATTENDANCE
INFORMATION section to advise of your requirements. Every reasonable effort
will be made to ensure you are able to take part in proceedings."

The jury summons also a bore the notation "attendance information" under which
had been typed the following:

"... if you have a disability phone (066) 513017 during office hours for
assistance."

Mr Cooper did not ring the numbers shown. However given the access limitations
of the Coffs Harbour court house, had Mr Cooper telephoned the number provided,
any assistance provided would not have overcome the access limitations to the
court house jury box and toilet facilities. I note that use of the form of
jury summons expressly providing a contact number for assistance in relation to
persons having a disability commenced on 12 August 1996.

It is common ground from the points of claim and amended defence that the
following matters are not in issue:-

(a)       On 18 November 1996 Mr Cooper attended the Coffs
Harbour court house at 2 Mooney Street, Coffs Harbour, but was unable to enter
the court house as all entrances had steps;

(b)       The Sheriff's officer told Mr Cooper that he
could be excused from jury service which Mr Cooper disputed;

(c)       Mr Cooper was informed by the Sheriff's officer
that the jury box was not wheelchair accessible;

(d)       Mr Cooper was told to sign the statutory
declaration excusing him from jury service;

(e)       Mr Cooper was informed he would have to enter the
court house via the rear entrance;

(f)       The path to the rear entrance was steep and
dangerous and made Mr Cooper concerned for his safety;

(g)       Mr Cooper was told that he would have to be
carried in his wheelchair up the steps into the court house;

(h)       Mr Cooper was told that if he was empanelled he
would have to sit on the floor of the court room and not in the jury box;

(i)       Mr Cooper was told that he would have to be
assisted to use the toilet facilities as the facilities were not wheelchair
accessible.

5.       ISSUES JOINED ON POINTS OF CLAIM AND AMENDED
POINTS OF DEFENCE IN RELATION TO THE COMPLAINT OF IAN COOPER

The points of claim allege that the State of New South Wales engaged in conduct
that is unlawful under sections 23 and 24 of the DDA.

The points of claim identify the act of refusal to provide Mr Cooper with
services and facilities on 18 November 1996 and assert that this amounts to a
breach of section 24(1)(a), (b) and (c) of the DDA by reason of the act of
refusal falling within section 5.

The points of claim further allege a breach of section 24(1)(a), (b) and (c) by
reason of the act of refusal on the basis that the refusal falls within section
6.

The points of claim further allege a refusal to allow Mr Cooper access to or
the use of the premises or facilities at Coffs Harbour court house and allege a
breach of section 23(1)(a), (b), (c), (d) and (e) on the basis that the act of
refusal falls within Section 5.

The points of claim further allege that the act of refusal amounts to a breach
of section 23(1)(a), (b), (c), (d), and (e) on the basis that the act of
refusal falls within section 6. The amended points of defence allege
unjustifiable hardship in answer to the alleged breaches of sections 24(1) and
23(1).

6.       JURY ACT 1977 (NSW)

Section 72 of the Jury Act 1977 (NSW) ("the Jury Act") provides for an
entitlement to be paid "for jury service at a court only if the person attends
for service in accordance with the summons and does not then successfully apply
to be excused from service".

Paragraph 12 of Schedule 2 to the Jury Act identifies a category of ineligible
persons as being "a person who is unable, because of sickness, infirmity or
disability, to discharge the duties of a juror".

Section 5 of the Jury Act provides that subject to the Jury Act, every person
who is enrolled as an elector for the Legislative Assembly of New South Wales
pursuant to the Parliamentary Electorates and Elections Act 1912 (NSW)
is qualified and liable to serve as a juror. Under section 6 a person
disqualified under Schedule 1 or a person ineligible under Schedule 2 is not
qualified or liable to serve as a juror. Section 9 provides for there being a
jury district for each place appointed for the sitting of the Supreme Court or
the District Court for a civil or criminal trial which jury district comprises
of such electoral districts or parts of electoral districts as are determined
and notified by the sheriff. Under section 10 the sheriff must maintain a jury
roll for each jury district in accordance with Part 3 of the Jury Act.

Under section 12 the sheriff is to select a number of persons at random from
the entries in the latest copies of rolls of electors supplied to the sheriff
that relate to each jury roll. The selections are to occur at intervals of not
more than 12 months. Section 13 provides for notification of persons included
on the supplementary jury roll for a district and that the sheriff proposes to
include the person on the jury roll. Section 14 imposes an obligation upon the
sheriff to delete persons disqualified, ineligible or exempt from the
supplementary jury roll. Section 15A provides for periodic updating of the
jury roll by the sheriff. Section 18 provides a power to the sheriff to amend
the jury roll and section 18A provides a power for the sheriff to excuse any
person for attending for jury service before a person is required by summons to
attend for jury service.

Section 23 provides for the sheriff to estimate the number of jurors who will
be required to be summonsed in each jury district for the civil or criminal
trial or coronial inquest. Section 25 provides for the sheriff to select at
random from the jury roll for each jury district the number of jurors estimated
by the sheriff as being required to be summonsed for trials or coronial
inquests in that jury district. Under section 26 the sheriff must issue a
summons in the form prescribed by the regulations to each person selected
requiring the person to attend at the court or coronial inquest at the time
specified in the summons until discharged by the court or coroner.

Section 38 provides a power to the sheriff to excuse a person for good cause
from attending at the court or coronial inquest in pursuance of the summons at
any time before the commencement of the trial or inquest at which the person
may be selected as a juror or alternatively the court or coroner has power to
excuse a person for good cause, notwithstanding that the sheriff did not excuse
the person for that cause. Section 38(4) provides a power whereby the sheriff
may require a person to verify a request to be excused by statutory
declaration.

7.       THE LEGISLATION

The DDA was assented to on 5 November 1992 and relevantly sections 23 and 24
commenced on 1 March 1993.

Section 3 states that the objects of the DDA are as follows:

3       Objects

The objects of this Act are:

(a)       to eliminate, as far as possible, discrimination
against persons on the ground of disability in the areas of:

       (i) work, accommodation, education, access to
premises, clubs and sports; and

       (ii) the provision of goods, facilities, services
and land; and

       (iii) existing laws; and

       (iv) administration of Commonwealth laws and
programs; and

(b)       to ensure, as far as practical, that persons with
disabilities have the same rights to equality before the law as the rest of the
community; and

(c)       to promote recognition and acceptance within the
community of the principle that persons with disabilities have the same
fundamental rights as the rest of the community.

Relevantly, section 14 expressly states that the Act binds the Crown in the
right of the each of the States.

Section 23 in Division 2 of Part 2 provides as follows:

       23 Access to premises

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

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

(b)       in the terms or conditions on which the
first-mentioned person is prepared to allow the other person access to, or the
use of, any such premises; or

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

(d)       by refusing to allow the other person the use of
any facilities in such premises that the public or a section of the public is
entitled or allowed to use (whether for payment or not); or

(e)       in the terms or conditions on which the
first-mentioned person is prepared to allow the other person the use of any
such facilities; or

(f)       by requiring the other person to leave such
premises or cease to use such facilities.

(2)        This section does not render it unlawful to
discriminate against a person on the ground of the person's disability in
relation to the provision of access to premises if:

(a)       the premises are so designed or constructed as to
be inaccessible to a person with a disability; and

(b)       any alteration to the premises to provide such
access would impose unjustifiable hardship on the person who would have to
provide that access.

Section 24 provides as follows:

       24 Goods, services and facilities

(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
person; or

(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.

Section 5 provides as follows:

       5 Disability Discrimination

(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.

Section 6 provides as follows:

       6 Indirect disability discrimination

For the purposes of this Act, a person ("discriminator") discriminates against
another person ("aggrieved person") on the ground of a disability of the
aggrieved person if the discriminator requires the aggrieved person to comply
with a requirement or condition:

(a)        with which a substantially higher proportion of
persons without the disability comply or are able to comply; and

(b)        which is not reasonable having regard to the
circumstances of the case; and

(c)        with which the aggrieved person does not or is
not able to comply.

Section 10 provides as follows:

10       Act done because of disability and for other
reason

If:

(a)       an act is done for 2 or more reasons; and

(b)       one of the reasons is the disability of a person
(whether or not it is the dominant or a substantial reason for doing the act);

then, for the purposes of this Act, the act is taken to be done for that
reason.

Section 4(2) provides as follows:

       4 Interpretation

4(2)        For the purposes of this Act, refusing or
failing to do an act is taken to be the doing of an act and a reference to an
act includes a reference to a refusal or failure to do an act.

Section 11 provides as follows:

       11 Unjustifiable hardship

For 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
concerned; and

(c)        the financial circumstances and the estimated
amount of expenditure required to be made by the person claiming unjustifiable
hardship; and

(d)        in the case of the provision of services, or the
making available of facilities--an action plan given to the Commission under
section 64.

Section 123 relevantly provides as follows:

123       Conduct by directors, servants and agents

(1)       ...

(3)       If, for the purposes of this Act it is necessary
to establish that state of mind of a person other than a body corporate in
relation to a particular conduct, it is sufficient to show:

(a)       that the conduct was engaged in by the servant or
agent of the person within the scope of his or her actual or apparent
authority; and

(b)       that the servant or agent had the state of
mind.

(4)       Any conduct engaged in on behalf of a person
other than a body corporate by a servant or agent of the person within the
scope of his or her actual or apparent authority is taken, for the purposes of
this Act, to have been engaged in also by the first mentioned person unless the
first mentioned person establishes that the first mentioned person took
reasonable precautions and exercised diligence to avoid the conduct.

(5)       ...

(7)       A reference in Subsection 1 or (3) to the state
of mind of a person includes a reference to:

(a)       the knowledge, intention, opinion, belief or
purpose of a person; and

(b)       the person's reasons for the intention, opinion,
belief or purpose.

(9)       A reference in this section to engaging in
conduct includes a reference to failing or refusing to engage in conduct.

8.       LAW

For the purpose of determining whether a complaint is substantiated in this
inquiry it is useful to have regard to the Second Reading speech of the Bill on
26 May 1992. Hansard at 2754 records the following:

"The Bill makes it clear that once a complainant has been able to show that he
has been subjected to unlawful discrimination, a respondent claiming
unjustifiable hardship would bear an evidentiary burden. Similarly, an
employer will have to determine what the inherent requirements of a particular
job might be. However, the overall legal burden of proof, in proving
discrimination unlawful, will remain with the complainant."

To discriminate against another person is itself "an act" and the words "on the
ground of" require a reasoning process in relation to the doing of that act.
Such a reasoning process is in my opinion necessary in order to identify the
reason or reasons of the doing of an act including an act of refusal or
failure. Relevantly sections 5 and 6 of the DDA, without being a complete and
exhaustive statement of discrimination, irrebuttably deem a proscribed reason
for the doing of an act if the criteria identified in either section is made
out and no additional reasoning process needs to be established. No intention
or motive to discriminate is necessary, Australian Iron & Steel Pty
Limited v Banovic
(1989) 168 CLR 165 at 176; Waters v Public Transport
Corporation
(1991) 173 CLR at 359-360, 400; University of Ballarat v
Bridges
(1995) 2 VR 418 at 426, 437-438; IW v City of Perth (1997)
191 CLR 1 at 63-64; X v The Commonwealth (1999) 167 ALR 529 at 565.
Identifying the true reason or reasons of a reasoning process for the purpose
of these provisions is an objective exercise as otherwise unconscious
discrimination or a selective or shallow reasoning process could defeat the
salutary elimination of discrimination.

Direct discrimination on the ground of a disability under section 5 requires a
nexus between the aggrieved person's disability and how the discriminator
treats or proposes to treat the aggrieved person. This nexus requires a
reasoning process objectively assessed. It is in this sense that the treatment
or proposed treatment can be seen to be actuated by or based in truth on the
aggrieved person's disability.

Indirect or adverse impact discrimination on the ground of a disability under
section 6 requires the imposition of compliance with a requirement or condition
which has particular causal consequences. The requirement or condition under
section 6 may be explicit or implicit, it must be such that the aggrieved
person does not or is not able to comply, a substantially higher proportion of
persons without the disability comply or are able to comply, and the
requirement or condition must not be reasonable having regard to the
circumstances of the case: Department of Foreign Affairs and Trade v
Styles
(1989) 23 FCR 251 at 263; Commonwealth Bank of Australia v HREOC (1997) 150 ALR 1 at 11-12; Waters v Public Transport Commission (1991) 173 CLR 349 at 378. In my opinion requiring compliance does not
require a reasoning process and accordingly indirect discrimination within
section 6 does not involve a reasoning process.

A liberal interpretation in order to implement the objectives of this
legislation is to be given to these provisions.

Section 4(1) of the DDA defines "premises" as relevantly including a place
(whether enclosed or built on or not) and a part of premises. There is a clear
distinction in section 23 between access to premises and use of premises. In
this regard, section 23 in my opinion addresses, firstly, the ability to obtain
access to any premises that the public or a section of the public is allowed to
enter and, secondly, if able to obtain access, the ability to use such
premises. Accordingly, under section 23, inability to obtain access to any
premises that the public or a section of the public is entitled or allowed to
enter is in general different from, and does not amount to, an inability to use
any premises that the public or a section of the public is entitled or allowed
to use. A construction that does not in general maintain this distinction is
in my opinion inconsistent with the deliberately narrow focus upon
unjustifiable hardship in section 23(2) in relation to the provision of access
as opposed to use of facilities on premises that the public or a section of the
public use.

"Facilities" is not defined within the Act but is relevantly defined in the
Macquarie Dictionary as follows:

"1.       Something that makes possible the easier
performance of any action; advantage: transport facilities; to afford someone
every facility for doing something.

       Also, toilet facilities. Bathroom and toilet.

       A building or complex of buildings, designed for a
specific purpose, as for the holding of sporting contests."

The Shorter Oxford English Dictionary defines "facility" relevantly as:

"2.       Opportunity for the easy or easier performance of
anything."

In my opinion, for the purpose of section 23, a part of premises is not in
general a facility. For this reason a building or complex of buildings are in
my opinion properly characterised as part of premises and not facilities. In
this regard, a court room is clearly a part of premises and, in my opinion, as
such not a facility within section 23. In my opinion, a jury box and the jury
room are also parts of premises and are not facilities within section 23. A
toiletry area in which toilets and washbasins are provided are, in my opinion,
facilities within section 23. This is because amenities of this nature are in
my opinion properly characterised as facilities under this provision and not a
part of premises. Section 23(1)(d), (e) and (f) of the DDA specifically
addresses use of facilities in such premises as the public or a section of the
public is entitled or allowed to use and in my opinion these facilities in such
premises are not intended to also fall within section 24(1). This construction
provides a harmonious application of the unjustifiable hardship exception in
section 24(2) in relation to facilities and which unjustifiable hardship
exception does not apply to facilities within section 23. Further, in my
opinion, if there is discrimination in relation to the provision of means of
access to such premises because the premises or parts of the premises are
inaccessible under section 23(1)(c) something more than mere inaccessibility to
the premises is required to support a finding of terms and conditions on which
a person is prepared to allow access in order to establish a breach under
section 23(1)(b).

Services are given a wide meaning by Section 4(1) and relevantly includes
"service of the kind provided by a government, a government authority or a
local government body". The Macquarie Dictionary relevantly defines "service"
as:

"1.       An act of helpful activity.

2.       The supplying or supplier of any articles,
commodities, activities, etc, required or demanded.

5.       The supplying or supplier of water, gas or the
like to the public.

12.       The performance of any duties or work for
another; helpful activity.

32.       To meet the needs of (a group of people or
organisation) by providing a particular service."

In my opinion, providing the administration and management to enable eligible
persons to serve on a jury are within the meaning of services in section 24 of
the DDA and I find that the respondent provided such services. Indeed Russell
Cox, who was called on behalf of the respondent, referred to activities of
juror management. These services in my opinion include the administrative
activities performed by a Sheriff's officer in assembling, directing and
assisting eligible persons attending in response to a jury summons. A narrower
interpretation of services would not, in my opinion, be consistent with the
objectives in section 3 as the activities of the Sheriff Officers provided on
behalf of the respondent in assembling, directing and assisting eligible
persons would otherwise be outside the reach of the DDA.

9.       UNJUSTIFIABLE HARDSHIP

Section 23(2) of the DDA makes permissible what may otherwise be unlawful
discrimination in relation to the provision of access to premises where the
premises are designed or constructed as to be inaccessible and any alteration
to the premises to provide such access would impose unjustifiable hardship on
the person who would have to provide that access.

Section 24(2) of the DDA makes permissible what may otherwise be unlawful
conduct in respect of the provision of goods or services or making facilities
available if this would impose unjustifiable hardship on the person who
provides the goods or services or makes the facilities available.

Pursuant to section 99 of the DDA the Commission is not required to have regard
to the permission worked by the exceptions in either section 23(2) or 24(2) in
determining whether an act is unlawful unless there is evidence that the
exception or the exemptions in Division 5 is or may be applicable to that act.

In determining what constitutes unjustifiable hardship I am required to take
into account all relevant circumstances of the particular case including the
factors identified in section 11 of the DDA.

10.       OTHER EVIDENCE

Each complainant gave oral evidence, as well as statements that were tendered
into evidence. There was also a statement tendered by the sister of Ian
Cooper, who corroborated the events surrounding his attendance at Coffs Harbour
court house. Faye Druett also gave evidence in relation to communications with
Ian Cooper at the time of his attendance at the Coffs Harbour court house
corroborating his evidence. The husband of Ms Druett gave evidence
corroborating in general the events surrounding the attendance by Ms Druett at
the Downing Centre, as did a friend and colleague of Ms Druett.

Mr Jones, an access consultant, gave evidence on behalf of the complainants and
identified the DDA Advisory Notes on Access to Premises as well as the
Australian Standards ("AS") 1428.1 and 1428.2. Specifically, he had carried
out an inspection of the Downing Centre on 17 November 1999 and expressed
certain opinions as to the extent to which the Downing Centre presently
complies with AS 1428.2, as well as AS 1428.1. The complainants also tendered
a bundle of material and certain other exhibits to which I have had regard.

The respondent called evidence from Russell Cox, the Director of Management
Services for the Attorney General's Department. Mr Cox gave evidence concerning
the Department's priorities. This included the following:

       "Prior to 1992, work relating to accessibility for
persons with a disability was given to areas providing general court services
over the provision of jury accessibility. For example, in accordance with the
priorities set by the draft Disability Strategic Plan prepared by the former
Department of Courts Administration in 1995 the view was taken that this
constituted a greater need in the community than the provision of additional
facilities such as expanded juror access to courtroom facilities. Accordingly
the Department's priority was to improve access to basic areas which might
affect the personal wellbeing of those with a disability, rather than expanded
juror access to courtroom facilities."

Julia Haraksin, who is the coordinator of the disabilities strategic plan in
the Disability Unit, Corporate Human Resources Division of the Attorney
General's Department also gave evidence. Evidence was also given on behalf of
the respondent by Eric Martin, an access consultant. His evidence made clear
the constant evolution in progressing the development of disability strategic
plans by the respondent in pursuit of compliance with the objectives under the
DDA. The evidence of Mr Martin also makes clear the ongoing progressive
development of standards in relation to building codes and access to buildings.
This evidence identified the undertaking of audits by the Attorney General's
Department to assess compliance with current code requirements and then
establishing implementation programs to address various priorities. In this
regard, Mr Martin summarised the steps that have been taken in relation to the
Downing Centre resulting in a situation where there are now some courts with
jury boxes and jury rooms that are accessible to a person using a wheelchair.
It is apparent that ongoing access work is being undertaken by the respondent
in relation to courts in New South Wales. The Coffs Harbour court house has
also been altered by installation of an entry ramp, a small lift to access the
first floor, accessible toilets and an accessible space for a jury member.

The disability strategic plan of the Department of Courts Administration,
which was a draft dated April 1995, identifies the need to provide access to
and within court buildings for litigants, witnesses, the judiciary, jurors and
prisoners. The draft plan records:

" A court standard is being developed in conjunction with other States, with a
view to new court houses being constructed to similar standards throughout
Australia. ...The department has commenced an ongoing program to modify
existing buildings, where possible, to provide disabled access. It is proposed
to conduct a comprehensive survey of court accommodation to identify areas
where access to existing buildings could be enhanced. This information will
allow the development and prioritisation of proposals to modify access to court
houses: these proposals will then be incorporated into future budget
submissions for capital works funding. ...

A policy has already been implemented to include disabled access as a primary
feature of the accommodation specification when new leases are negotiated."

The draft plan also recorded that the Jury Task Force met during 1992 to 1993
and considered the conditions under which jurors serve, including accommodation
and amenities. The report concluded that "a statement of acceptable
standards for jury assembly and deliberation areas should be developed and
implemented
". The respondent was aware of the research project being
undertaken by Sydney University for the AIJA, which culminated in the AIJA
report `Jury Management in NSW (1994)'. The draft plan also recorded:

"Inherent in the objectives and strategies of this disability strategic plan is
the necessity for people with disabilities to be consulted in the planning,
implementation and evaluation process which will be stimulated by the plans
operation."

The draft plan also summarised certain objectives, strategies, action to be
taken, accountability, time lines, performance indicators and review.

The Report of the NSW Jury Task Force dated December 1993 refers to agreement
by the Minister for Justice, the Honourable Terry Griffiths MP, to establish a
task force as a result of correspondence from the Chief Justice of the Supreme
Court of NSW. The Convenor of the task force was the Honourable Mr Justice
Abadee RFD of the Supreme Court of NSW. The task force members included His
Honour Judge HH Bell of the District Court, Warwick Soden, Chief Executive
Officer and Principal Registrar of the Supreme Court, Claude Wotton, Principal
Courts Administrator of the District Court, Daryl Brown, Director of Legal and
Administrative Services of the Department of Courts Administration, and David
Lennon, Sheriff.

Page 4 of the report stated that the task force inspected a number of jury
facilities and agreed that most were below an acceptable standard and that a
statement of acceptable standards for jury assembly and deliberation areas
should be developed and implemented. In particular, the report identified a
number of recommendations including the following:

4.15       That deliberation rooms have secure access to
both men's and women's toilets, at least one of which is accessible to disabled
people.

4.19       That all jury deliberation rooms be accessible
to persons with disabilities including those in wheelchairs.

4.20       That access to jury rooms to and from the court
should be barrier-free.

4.23       That the jury deliberation room should be
accessible from the court room by a private corridor and have separate secure
access.

This report was expressly referred to in the April 1995 Disability Strategic
Plan. Steps were being taken by the respondent to comply with the DDA prior to
May 1994.

A much more detailed and comprehensive draft plan was tendered entitled `NSW
Attorney-General's Department Access Guidelines: NSW Court Houses - Provision
of Physical Access for People with a Disability" dated February 1997. In 1997
the "NSW Attorney-General's Department Disability Strategic Plan: 1997 to 2000"
was prepared, and was lodged with the Commission pursuant to section 64 of the
DDA. The introduction to this plan recorded as follows:

"The Attorney General's Department is committed to fully meeting its
obligations under State and Commonwealth anti-discrimination legislation.
These laws require all organisations to eliminate discriminatory practices
which may prevent people with a disability from having full and equal access to
our services.

The development of this Disability Strategic Plan 1997-2000 (DSP) is a
comprehensive step towards ensuring that our services, programs and facilities
are as accessible to a person with a disability as they are to any other
person. The DSP identifies the Department's responsibilities, objectives,
goals and policies in relation to people with a disability. It also provides a
program of actions and initiatives which will progressively address
discriminatory circumstances and practices, and will adapt our management and
business procedures to accommodate the needs of people with a disability."

Evidence was also tendered of the membership list as at July 1998 of the
Disability Advisory Council which included representatives from a wide number
of organisations. There was also tendered a disability access audit dated 17
June 1999 relating to the court at the Downing Centre. A table was also
tendered summarising court access and disability facilities in a large number
of New South Wales courts.

11.       FINDINGS ON THE COMPLAINT OF FAYE DRUETT

I turn first to the breach alleged of section 24 on the basis of application of
section 5 as that is the first provision allegedly breached in the points of
claim. I find as a fact that the respondent provides a service being the
administration and management to enable an eligible person to serve on a jury
and to thereby represent the community. The administrative activities of a
Sheriff's officer in locating, directing and assisting an eligible person in
response to a jury summons are part of these services and were provided by the
respondent to Ms Druett on 25 May 1994. Ms Druett was included as an eligible
person on the jury roll or supplementary jury roll and was summonsed to attend
for jury duty which were part of the services. A refusal to provide part of a
service is capable of falling within section 24(1)(a). I find that that
respondent did refuse to provide that service to Ms Druett on 25 May 1994 at
the Downing Centre by the act of the Sheriff's officer directing Ms Druett to
complete a statutory declaration to be excused from jury duty against her
wishes. This was not an exercise of power within section 38(4) of the Jury Act.
I find that this act by the respondent constituted a refusal to provide to Ms
Druett services enabling her as an eligible person to serve on a jury. The
fact that Ms Druett may not have been selected as a juror and empanelled does
not change the fact of refusal by the acts of the Sheriff's officer to provide
services. I find that this refusal by the respondent to provide the service
enabling Ms Druett as an eligible person to participate in serving on a jury
treated her less favourably than the respondent treats other eligible persons
without Ms Druett's disability in circumstances that are the same or not
materially different. I find that this treatment of Ms Druett was based on and
actuated by her disability. Subject to any unjustifiable hardship exception I
find that the respondent unlawfully discriminated against Ms Druett in breach
of section 24(1)(a) by directing her to complete the statutory declaration
which constituted a refusal by the respondent to provide services to Ms Druett.

I find that the failure to alter the wheelchair accessibility of the jury room
and of the jury box between 1 March 1993 and 25 May 1994 was not a refusal to
provide a service enabling an eligible person to serve on a jury.

I find that on 25 May 1994 the respondent made available certain facilities,
being toilets, in the Downing Centre. I find that there was no refusal to make
available the accessible toilets in the Downing Centre and that the
inaccessible toilets were not the subject of any refusal. I find that the jury
box and jury room are parts of the premises being the Downing Centre and are
not facilities. I find that the respondent did not refuse to make any
facilities available by the act of the Sheriff's officer in preventing Ms
Druett from entering court 1 at the Downing Centre. I find that this was an act
preventing access to a part of premises that the public are entitled to enter
and use. I find that even if the jury box and jury room are properly
characterised as facilities there was no refusal to make available such
facilities as they were inaccessible. Accordingly, I find that there was no
breach of section 24(1)(a) in relation to facilities.

I find that it was not a term or condition upon which the respondent provided
the services of enabling an eligible person to serve on a jury that the person
did not have a disability requiring use of a wheelchair. The fact that no jury
room or jury box was wheelchair accessible on or prior to 25 May 1994 does not
make imposition of such a term or condition implicit in relation to the
provision of services. The refusal to provide services by the acts referred to
above does not in my opinion of itself support the imposition of any term or
condition in relation to the provision of services. Accordingly, I find that
there was no breach of section 24(1)(b) in relation to the provision of
services.

I also find that the jury box and jury room are not facilities made available
by the respondent but rather are parts of the court premises and accordingly
were not facilities the subject of any term or condition within section
24(1)(b). I find that there were accessible toilet facilities and that those
toilet facilities which were not accessible were not the subject of any term or
condition as to making the same available.

I find that the respondent's refusal to provide services was not providing
services in any particular manner. I find that there was no relevant manner in
which the toilet facilities were provided. Accordingly, I find that there was
no breach of section 24(1)(c).

All courts could not possibly have been modified to meet the requirements of
the DDA by 25 May 1994. The existence of earlier anti-discrimination
legislation operable within New South Wales and other literature does not
extend the scope and application of the Commonwealth statute. I find that steps
were being taken by the respondent to plan for and implement the modifications
required by this new legislation after its commencement. I find that there was
a jury task force in 1992/1993 in the former Department of Courts
Administration which commenced addressing access to jury assembly and
deliberation areas. Given the evidence of Russell Cox as to the duration
involved in preparing, consulting and formulating the 1997 Disability Plan I
infer that the draft Disability Plan dated April 1995 was in the initial stage
of being prepared or considered prior to 25 May 1994. I find that the
respondent was progressively drafting plans for implementing effective
wheelchair access to existing courts prior to the incident in May 1994 and that
this included access to the jury box and jury room. In drawing these inferences
I rely upon the contents of the NSW Task force and Draft Plan dated April 1995
and the evidence of Mr Cox as to the priorities and steps that had been taken
so as to make the Downing Centre accessible as at the time of the attendance of
Ms Druett. I find that the number of courts together with heritage issues,
budgeting constraints, building alteration planning, timing restrictions in
closing courts and physical limitations and legitimate prioritising created a
genuine and substantial difficulty and hardship for the respondent in the
elimination of barriers to access to the Downing Centre as at May 1994.

I find that there is evidence that the exception in section 24(2) is applicable
to the acts of the respondent in relation to section 24(1)(a). I find that the
Downing Centre was designed and constructed in 1987 to 1991 in relation to the
jury box and jury room so as to be inaccessible to a person with a disability
requiring use of a wheelchair. The jury box and jury room were not wheelchair
accessible and could not be made so on that date. I find that it was not
practically possible to alter all barriers in each court throughout New South
Wales prior to 25 May 1994 and that it would have imposed an unreasonable and
oppressive burden upon the respondent to have altered the Downing Centre jury
box and jury room by that date as proper consultation and planning could not
have been carried out. I take into account the importance of all eligible
persons being permitted to fulfil his or her obligation to serve on a jury and
the importance of facilities to participate in jury service being available to
all eligible persons. I take into account the right to equal participation in
the community and civic matters which the complainant was thereby denied. I
take into account the unfairness, distress and hurt that Ms Druett suffered and
that persons with disabilities requiring use of a wheelchair are likely to
suffer as at May 1994. I also take into account that no action plan had been
provided to the Commission as at May 1994 but I accept that steps were in train
for the purpose of formulating such a plan. I note that a plan was in fact
provided to the Commission in 1997 under section 64 of the DDA but not prior to
the acts in issue and that no application for exemption was made under section
55. I find that very substantial expenditure would have been required to
modify all courts by May 1994 and that the estimated amount of expenditure
required to alter the Downing Centre was in the order of $100,000. I take into
account that responsible financial administration of the respondent requires
budgeting and allocation of resources as well as prioritising the demands on
such allocations for the administration of justice in New South Wales. I take
into account all the relevant circumstances existing as at 25 May 1994. I find
that it would have imposed unjustifiable hardship upon the respondent not to
have refused to provide the services to the complainant on 25 May 1994. I
find that the ability to vary budgetary allocations does not remove the
imposition of unjustifiable hardship on the respondent in the provision of such
services on 25 May 1994. I find that the exception under section 24(2) is
established in relation to the conduct of the respondent under section 24(1).

Accordingly, I find that as at the 25 May 1994 the direct discriminatory
treatment of Ms Druett by the respondent under section 24(1)(a) was not
unlawful in refusing to provide services to Ms Druett as it would have imposed
unjustifiable hardship on the respondent to provide those services at that
time.

In relation to the allegations of breach of section 23 the complainant relies
upon both the refusal as at 25 May 1994 to allow the complainant access to or
use of the premises or facilities in such premises by the conduct of the
sheriff's officer and also by the act of failure to make the jury box and jury
room facilities available by that date.

I find that the court room, jury box and jury room are parts of premises that
the public or a section of the public are entitled or allowed to enter. Jurors
are a section of the public and are entitled or allowed to enter or use the
jury box or jury room.

I find that the respondent did refuse to allow Ms Druett access to court 1 by
the act of the sheriff's officer in closing the door to the court in front of
the complainant and preventing entry to the court which was wheelchair
accessible. I find that these acts treated the complainant less favourably than
the respondent would treat other persons without the complainant's disability
in circumstances that are the same or are not materially different. I find that
this less favourable treatment by the sheriff's officer on behalf of the
respondent was based on and actuated by the complainant's disability.
Accordingly, I find that the respondent unlawfully discriminated against the
complainant in breach of section 23(1)(a) by refusing access to court 1 in the
Downing Centre. In my opinion no question of unjustifiable hardship arises in
relation to section 23(1)(a), but even if it did the facts before me do not
support a finding of unjustifiable hardship.

I find that there was no refusal to allow access to the jury box or jury room
as these parts of the premises were simply not accessible and there was no
relevant act by the Sheriff's officer in relation to these places. I find that
there was no refusal to allow use of the jury box or jury room as these were
parts of the premises that could not be accessed. I find that the toilet area,
if properly characterised as a place in the premises, was not the subject of
any refusal to allow access. I also find that there was no term or condition
on which the respondent was prepared to allow Ms Druett access as the jury box
and jury room were inaccessible. I find that there was no breach of section
23(1)(b).

I find that in the failure to provide means of access to the places being the
jury box and jury room by the failure to alter the premises to provide
wheelchair access, the respondent did not treat Ms Druett less favourably than
the respondent treats other persons without Ms Druett's disability and does not
fall within section 5. I find that the failure to alter the premises between 1
March 1993 and 25 May 1994 does require Ms Druett to comply with a requirement
or condition which a substantially higher proportion of persons without Ms
Druett's disability comply and with which Ms Druett is not able to comply.
Accordingly subject to section 6(b) and section 23(2) I find that the
respondent was in breach of section 23(1)(c).

I find that the only facilities relevant to the complaint were the toilet
facilities and that there were accessible toilets which were not the subject
of any refusal or term and condition of use. I find that the inaccessible
toilet facilities were not the subject of any refusal as to use and that no
term or condition was imposed to allow use. I find that the jury box and jury
room were premises not facilities and accordingly not within section 23(1)(d)
or (e). Even if the jury box or jury room were to be characterised as
facilities they were in fact inaccessible and there was accordingly no refusal
to allow use of such facilities, or any term or condition on which the
respondent was prepared to allow use. The absence of ability to access meant
there could be no use of any such facilities. Accordingly I find that there was
no breach of section 23(1)(d) or (e).

The evidence given orally by Ms Druett made clear that she was not told to
leave the court house after signing the statutory declaration. I further find
that the Sheriff's officer did not require the complainant to leave the
premises. Accordingly, I find that the respondent did not engage in unlawful
conduct on 25 May 1994 in breach of section 23(1)(f).

I take into account the nature and effect of the refusal to provide access
being the denial of the opportunity for Ms Druett to participate in the
important function of jury service and the denial of the right to equal
participation in the community and civic matters. I take into account the
distress and humiliation to Ms Druett from the refusal to provide means of
access and I take into account the costs likely to have been required to alter
accessibility to the jury box and jury room in the Downing Centre. I also take
into account the matters to which I have referred in relation to section 24(2)
above. Taking into account all the relevant circumstances in existence as at
May 1994 I find that it was reasonable for the respondent not to provide means
of access to the jury box and jury room. Accordingly, I find that the
respondent did not indirectly discriminate against the complainant within the
terms of section 6 in relation to the provision of means of access to the
premises and I find that there was no breach of section 23(1)(c).

I also find that there is evidence that the exception under section 23(2) is
applicable to the conduct of the respondent under section 23(1)(c). I find
that the Downing Centre premises were so designed or constructed in 1987 to
1991 as to be inaccessible to a person with a disability requiring use of a
wheelchair in the jury box and jury room. I take into account all the relevant
circumstances existing as at 25 May 1994. I take into account the matters I
have referred to above in relation to section 24(2) and section 6 but not the
failure to provide a Disability Action Plan. I find that any alteration to the
premises to provide such access as at 25 May 1994 would impose unjustifiable
hardship on the respondent within Section 23(2). I find the exception in
section 23(2) established in relation to the provision of means of access as at
25 May 1994. Accordingly, I find that there was no breach of section 23(1)(c)
in relation to the provision of means of access as at 25 May 1994.

12.        RELIEF IN RELATION TO THE COMPLAINT OF FAYE
DRUETT

I find the complaint of Ms Druett substantiated in respect of the breaches of
section 23(1)(a). I accept that Ms Druett was extremely distressed as a result
of the unlawful discrimination by the respondent which I have found to have
occurred in breach of section 23(1)(a) as well as being humiliated,
inconvenienced and angered. Taking into account the guidance provided from
damages awarded for tortious injury and the nature of the rights that have been
infringed I consider an appropriate amount of damages to be $5,000.

As Ms Druett has succeeded in establishing unlawful conduct, there is in my
opinion utility in the circumstances of this complaint in the making of a
declaration notwithstanding the ability to merely rely on the terms of this
determination.

For the above reasons, I declare that the respondent on 25 May 1994 engaged in
conduct that is unlawful under section 23(1)(a) of Part 2 of the Disability
Discrimination Act 1992
(Cth).

I declare that the respondent should pay the complainant the sum of $5,000 for
the damage suffered by the complainant within 28 days of this determination.

I am of the opinion that the declaration is sufficient remedy to redress the
harm to Ms Druett from the unlawful discriminatory conduct of the respondent
and that an order requiring apology is not appropriate in this case. The
complainant did seek relief of a mandatory nature that would impose an
obligation upon the respondent to comply with the Advisory Notes on Access to
Premises issued by the Commissioner or an obligation to meet other standards. I
note that in this regard no standard in relation to section 31 has been formed
by the Minister. I am not satisfied that any such relief is required to address
the loss and damage suffered by the complainant. Further, I am satisfied that
genuine steps to meet the objectives of the DDA are being taken by the
respondent and that there is no need for any such type of order.

13.        FINDINGS ON THE COMPLAINT OF IAN
COOPER

As at 18 November 1996 the court house at 2 Mooney Street, Coffs Harbour was
not itself accessible to a person using a wheelchair. Nor were the jury box,
jury room, or the toilet facilities accessible. I find that the cost of
altering those premises to make the same accessible was in the order of
$100,000.00.

The Sheriff's officer engaged in the act of requiring Mr Cooper to sign a
statutory declaration so as to be excused from jury service against his wishes.
I find that this act constituted a refusal to provide services for
substantially the same reasons as dealt with above in relation to the complaint
of Ms Druett and as such amounted to direct discrimination within section 5 and
would, subject to section 24(2), amount to unlawful discrimination under
section 24(1)(a).

The Coffs Harbour court house was also designed and constructed prior to
commencement of the DDA in a way which was inaccessible, although unlike the
Downing Centre, it was not the subject of any heritage constraints. I take
into account all the relevant circumstances that existed at the time of the
acts on 18 November 1996. I take into account the distress and humiliation
caused to Mr Cooper and the denial of the right to equal participation in the
community and civic matters. I find that the estimated amount of expenditure
to make accessible the Coffs Harbour court house, jury box, jury room and
toilet facilities was in the order of $100,000.00. I take into account the
budgetary constraints, planning and alteration limitations to which I have
referred as in existence in May 1994 and I find that substantially the same
constraints existed in November 1996. I find that the respondent was taking
genuine steps in continuing to plan for the elimination of barriers to access
in all courts in New South Wales as at November 1996. I find that it would
have created genuine and substantial difficulty and hardship for the respondent
to have eliminated the barriers to access at the Coffs Harbour court house as
at November 1996. I find that there is evidence before the Commission that the
exception in section 24(2) is applicable to the act of refusal to provide
services. I find that the alteration to the Coffs Harbour court house to
provide services on 18 November 1996 would have imposed unjustifiable hardship
on the respondent. The additional lapse of time for implementation does not in
my opinion remove the imposition of unjustifiable hardship on the respondent as
at 18 November 1996. Accordingly, I find that the exception under section
24(2) is established and that the respondent did not act unlawfully in refusing
to provide services to Mr Cooper on 18 November 1996. I find that there was no
breach of section 24(1)(a) by reason of the refusal to provide services on 18
November 1996.

The toilet facilities at the Coffs Harbour court house were simply not
accessible and I find that there was no refusal to make available those
facilities. I find that there was no term or condition imposed as to the
provision of services or the making of facilities available to Mr Cooper. I
find that there was no relevant manner in which the respondent provided
services or facilities to the complainant. I adopt the same reasoning in
respect of the other allegations of breach of section 24(1)(b) and (c) as
discussed in the complaint of Ms Druett. I find that there was no breach of
section 24(1)(a), (b) and (c) in relation to the complaint of Mr Cooper.

Mr Cooper was not subjected to an act of the same kind as Ms Druett in being
refused entry to an accessible court room. I find that there was no refusal to
allow Mr Cooper access to or use of the premises at Coffs Harbour court house.
The premises were simply not accessible. Accordingly, I find there was no
breach of section 23(1)(a). I find that there was no term or condition on
which the respondent was prepared to allow access. I find that there was no
breach of section 23(1)(b). I find that there was no refusal to allow the
complainant the use of facilities. I find that there was no breach of section
23(1)(d). I find that there was no term or condition on which the respondent
was prepared to allow the use of facilities. I find that there was no breach
of section 23(1)(e). I adopt the same reasons as dealt with above in relation
to the complaint of Ms Druett, in relation to the alleged breaches of section
23(1)(b)(d) & (e).

I find that subject to section 6(b) and section 23(2) there was a breach of
section 23(1)(c). I find that there is evidence making the exception under
section 23(2) applicable. I take into account all the relevant circumstances
as existed as at 18 November 1996 and the matters I have referred to in
relation to section 24(2). I find that provision of means of access to the
Coffs Harbour court house as at 18 November 1996 was not reasonable having
regard to all the circumstances existing at that date. I find that it would
have imposed unjustifiable hardship to provide means of access to the Coffs
Harbour court house, jury box, jury room and toilet facilities as at 18
November 1996. I find that the exception under section 23(2) is established.
I find that there was no breach of section 23(1)(c) in the failure to provide
means of access as at 18 November 1996.

14.       DISMISSAL OF COMPLAINT OF IAN COOPER

I find that the respondent has not engaged in unlawful conduct as alleged in
the complaint of Ian Cooper. I find that the complaint has not been
substantiated. Accordingly, I dismiss the complaint of Ian Cooper against the
respondent.