FEDERAL COURT OF AUSTRALIA

Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 987

DISABILITY DISCRIMINATION – administrative law – no evidence – findings not reasonably open on the evidence – failure to consider all the evidence – taking into account irrelevant considerations – application of ss 6 and 23(1)(c) the Disability Discrimination Act 1992 (Cth) – only a person with capacity to alter means of access is subject to s 23(1)(c) – matters in s 23(2) not an element of but a defence to discrimination within s 23(1)(c) (and only within that sub-paragraph) – whether Commission erred in not finding indirect discrimination in relation to the provision of means of access to premises – applicant suffering from post polio syndrome

WORDS AND PHRASES – “does not or is not able to comply” – “requirement or condition” – “the provision of means of access to such premises”

Disability Discrimination Act 1992 (Cth)  ss 3, 4, 6, 11, 23

Administrative Decisions (Judicial Review) Act 1977 (Cth)  s 5

Equal Opportunity Act 1984 (Vic)  s 17(5)

Equal Opportunity Act 1984 (WA)

Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481 at 491 - 492 followed

Vines v Djordjevitch (1955) 91 CLR 512 at 519 cited

Waters v Public Transport Corporation (1991) 173 CLR 349 applied

Mandla v Dowell Lee [1983] 2 AC 548 referred to

Bogle v Metropolitan Health Service Board (2000) EOC 93-069 referred to

Travers v State of New South Wales [2000] FCA 1565 at [17] referred to

Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 258 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 cited

Macquarie Dictionary, 3rd ed

CHANDRAKANTHI SLUGGETT  v  HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and FLINDERS UNIVERSITY OF SOUTH AUSTRALIA

S 92 OF 2000

DRUMMOND J

9 AUGUST 2002

MELBOURNE (VIA VIDEO LINK TO ADELAIDE)

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In June 1994, the applicant, Ms Sluggett, lodged a complaint with the Human Rights and Equal Opportunity Commission (“the Commission”) that the second respondent, Flinders University, indirectly discriminated against her in relation to the provision of means of access to its premises contrary to ss 6 and 23(1)(c) the Disability Discrimination Act 1992 (Cth) (“the Act”).  The Commission dismissed her complaint.  She seeks review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”).

2                     Ms Sluggett had initially complained to the Commission of discrimination against her contrary to ss 22, 24 and 37, as well as to s 23 of the Act.  The Disability Discrimination Commissioner declined to inquire further into her complaints under these other provisions and this refusal was confirmed by a presidential review.

3                     Ms Sluggett first enrolled at Flinders University in 1988 in a Bachelor of Arts degree.  She completed this in 1990.  When she began that course, she notified the University of her polio-related disabilities and was referred by the University to its Health and Counselling Service.  She had contracted polio as a child and was left with an unstable left leg.  That impaired her mobility.

4                     She took a job in 1991.  In 1992 she enrolled in a two year, post-graduate Diploma in Social Administration.  She did not at that time see the respondent’s Health and Counselling Service because she had already seen them in 1988 and they were aware of her disabilities.  The University in fact pre-inserted a “Y” (for “yes”) next to the question in the post-graduate enrolment form it sent to her, which asks “Do you have a disability that could affect your performance as a student…?”

5                     Flinders University is built on the side of a fairly steep hill.  The campus is spread over a large area with considerable distances separating some of the buildings.  It was established in the 1960s.  A “ring road” runs around the campus connecting the various car parks located around it.  The University provides a free bus service which travels around this ring road at regular intervals dropping students off at various stops along the way.  During 1992 and the first semester of 1993, Ms Sluggett’s lectures and tutorials were held in the Social Sciences South Building.  In first semester 1993 she also had tutorials in the Social Sciences North building.  The other area she had to use was the University library.

6                     The applicant’s claim of discrimination with respect to access to the University premises centres around the fact that she had to walk considerable distances and negotiate many stairs to get to her various classes and to the library.  The route she would use to get to a particular class depended on whether she took public transport to the University or was given a lift by a friend.  In the latter case, the route she took would depend, she said, on where her friend managed to find a car park.

7                     In second semester of 1993, Ms Sluggett was required to complete a field placement as part of her course.  This involved doing research into a topic of her choice.  Ms Sluggett chose the area of AIDS/Migrant Welfare and she was accordingly placed at the Migrant Health Service (“the Health Service”).  Before agreeing on this particular placement, Ms Sluggett attended the premises, inspected them and, in discussing the requirements of the placement, also discussed her disability with Ms Perkons of the Health Service.  The arrangements involved were formalised in a contract between the applicant, Ms Perkons and Dr Vrengdenhil of the University.  She also claims she was discriminated against by the University, but not by the Health Service, in respect of these premises:  she had difficulty climbing an internal staircase from the first floor to her second floor office there.

8                     The medical evidence about the applicant’s disabilities is not in dispute.  I have referred to her permanent disability that impaired her mobility.  From 1992 her health worsened and in December 1993 she was diagnosed as having developed post polio syndrome.  Its onset may have begun as early as 1991.  It became increasingly debilitating though Ms Sluggett did not realise that she had developed this condition.  Symptoms included increased weakness and instability in her lower limbs, particularly in her left leg, pain and fatigue.  It affected her academic performance.  Her performance in 1992 was satisfactory.  But in December 1993 she failed a number of subjects.  Ms Sluggett applied to the University Appeal Committee for a re-grading of these subjects on the ground that her problems with mobility had detrimentally affected her performance and that, in failing to make allowances for her disability, the University had discriminated against her.  Her appeal was unsuccessful.  She then made her complaint to the Commission.

9                     Section 23 of the Act makes it unlawful to discriminate against a person in relation to access to premises that the public or a section of the public is entitled or allowed to enter or use.  The second respondent did not contend that its campus or the Health Service offices were not “premises” within s 23.  It provides:

“23(1)It is unlawful for a person to discriminate against another person on the ground of the other person’s disability … :

(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.”

10                  “Unjustifiable hardship” has the meaning given to it by s 11 of the Act:

“11.     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;

…”

11                  As the Commissioner noted, Ms Sluggett did not make any allegation of direct discrimination against the applicant under s 5 of the Act.  The discrimination alleged was of indirect discrimination within s 6, which provides:

“6.       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.”

12                  The hearing before the Commissioner was very protracted:  it lasted twelve days.  There was much evidence given and lengthy cross-examination.  The Commissioner had a view of both the University campus and the Health Service premises.  She gave extremely lengthy reasons for dismissing Ms Sluggett’s complaint.

13                  The Commissioner said that it was not contested by the University that Ms Sluggett suffers from a “disability” as defined in s 4 of the Act.  It needs to be noted, however, that the disability upon which Ms Sluggett based her case was not the impairment she was left with as a result of contracting poliomyelitis as a child.  That had not unduly hampered her during her Bachelor of Arts course.  It was only as her disability increased as her post polio syndrome gradually worsened during 1993 that the University is said to have discriminated against her with respect to access.  This is said to be so though Ms Sluggett did not herself draw to the attention of the University her growing problems with mobility.  She did mention something of her problems to some of her lecturers.  But the Commissioner found that what Ms Sluggett did was this.  She:  “did not refer to difficulties of access within the University as the cause of her academic problems:  rather, she complained about difficulties in getting into the University from her home, and about her personal problems and relationships”.  It is difficult to see how means of access about which there is no complaint in 1992 can become the subject of discriminatory conduct by the University in 1993 solely because of a deterioration in Ms Sluggett’s physical capacity which she did not draw to the attention of her lecturers, the unit within the University specifically set up to provide advice and assistance to disabled students or anyone else in the University.  It was only her examination failures, at the end of the 1993 academic year that caused her, early in 1994, to make complaint to the Academic Registrar in the course of appealing against the failed grades she had received.  If it were the case that the University did, in 1993, require Ms Sluggett to comply with a requirement or condition that she attend classes at the University or field work at the Health Service centre with which requirements she became increasingly unable to comply, it is difficult to see how it could be said that such a requirement or condition was in terms of s 6(b) of the Act, “not reasonable having regard to the circumstances of the case”.  That was ultimately the view to which the Commissioner came.

14                  The Commissioner found, in relation to the University itself, that the relevant premises were the whole of the Flinders University campus.  She said:  “access to premises for the purposes of this Inquiry does include Ms Sluggett’s difficulty of accessing the respondent’s buildings containing lecture theatres, other teaching rooms and the library within the campus:  it therefore must take into account the long walks, many stairs, the heavy doors, the difficult stairways, the open walk areas, the crowded stairs, the distances between lifts, and the sometimes limited access to lifts”.  All, the Commissioner considered, were “part of a broad definition of ‘premises’”.  She also found that “relevant premises” also included the Health Service building where Ms Sluggett was placed by the University to complete the practical component of her course;  the Commissioner considered that though the University had no control over access arrangements there, because it “had control over which premises Ms Sluggett would be required to access for the purpose of her placement”, the Centre should still be regarded as “premises” for the purposes of considering the University’s liability to Ms Sluggett under s 23(1)(c).  No criticism of these findings was made by either party.

15                  The Commissioner found that the “means of access” which she considered the University was required by s 23(1)(c) to provide to students, including the applicant, was means by which they could, once they were at the “threshold” of the campus, physically access “in an appropriate way” those parts of the campus to which they needed to go “in the pursuit of the purpose of their access”.  There was no duty imposed on the University by s 23 to provide the applicant with means of getting from her home to the University.  (The Commissioner noted that Ms Sluggett, in her evidence, spoke of the difficulties she was experiencing in 1993 in getting from her home to the University, to certain venues outside the University where some lectures were held and to the Health Service, but she did not complain in 1993 about difficulties in getting around the University campus or within the Health Service premises).  No challenge has been made to these findings.

16                  The Commissioner made her findings after viewing the University campus.  There was also much evidence about access within the campus.  The Commissioner noted that:

“In relation to the University campus, the respondent’s circumstances are restricted by the geographical arrangement and construction of the campus.  The campus is situated on a steep site on the side of a hill, and the campus is very large.  The buildings are spread some distance apart and the area is landscaped with courtyards, a lake, walkways and open spaces.  In part the arrangement of the campus is dictated by steep site (the necessity to have a variety of levels), and in part by the architectural design and landscaping chosen (in the 1960’s when the University campus was established) by the University.”

17                  But the Commissioner found that:

“… at the time Ms Sluggett was enrolled as a student in 1993, the University provided means of accessing each level of the campus via lifts.”

18                  She found that there were lifts available on the campus which the applicant could have used.  These lifts eliminated the need for her to negotiate any stairs although she would still have had to walk a considerable distance and open several heavy doors.  The Commissioner found that on the occasions when Ms Sluggett was driven to the campus by a friend she could have been dropped off directly outside the Social Sciences South building or they could have parked in one of the spaces reserved for the disabled had the applicant obtained a disabled parking permit for a cost of $80 per year.

19                  The Commissioner also found that the applicant, who did not consider herself disabled, was well aware of the topography of the University when she re-enrolled in 1993 and that she chose not to avail herself of any of the facilities or information she knew were available to disabled students. 

20                  The Commissioner then said:

“There is no doubt Ms Sluggett had difficulty in getting around the University premises because of her disability, and faced difficulties at the Health Service with the stairs because of her disability.  However, that she faced difficulties and had to negotiate stairs, doors and distances in walking, does not necessarily lead to the conclusion the respondent has discriminated against her in relation to the provision of means of access to the premises.”

21                  The Commissioner did not, however, make any finding at this stage about whether the respondent had indirectly discriminated against Ms Sluggett within s 6, in contravention of s 23(1)(c).  Instead, in a lengthy passage immediately following, the Commissioner considered what it called “the notion of unjustifiable hardship” in s 23(2).  In the course of this discussion, the Commissioner concluded that:  “The respondent cannot alter the nature of the site of its premises, and modification to address the access issues referred to by Ms Sluggett at the hearing is, if not impossible, impractical and unreasonable (even were they properly to be regarded as presenting an inappropriate barrier to a person with disabilities).”  As to the Health Service, the Commissioner said:

“Ms Sluggett could have advised Dr Vreugdenhil she would or might have difficulties at the Health Service because of the nature of the premises: had she done so and no alternative placement been arranged, it seems to me Ms Sluggett would have had a more legitimate complaint.  I am quite satisfied she did not do so at any time during the course of the placement, and nor did she advise Dr Vreugdenhil or Ms Perkons that the nature of the premises itself constituted a difficulty in her successfully completing her placement.”

22                  It was only after she had dealt with the “unjustifiable hardship” issue that the Commissioner turned to the issue of discrimination and, in particular, the application of s 6 to the facts of the case.  Her ultimate conclusion here was that there was no indirect discrimination against Ms Sluggett by the University.

23                  It is not clear why the Commissioner, before dealing with the critical issue of indirect discrimination within s 6 in relation to s 23(1)(c), thought it necessary to consider, and in the detail she did, the application of s 23(2)(b) of the Act to this case.  It is unlikely that she thought that, on the proper construction of s 23, a finding of unlawful discrimination within s 23(1)(c) could not be made without first considering such material as there was before her relevant to the matters in s 23(2).  But if that was the basis on which she proceeded to consider s 23(2)(b) before making any finding of discrimination under ss 23(1)(c) and 6, it was not correct.  In Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481, Madgwick J applied Vines v Djordjevitch (1955) 91 CLR 512 at 519 and held that s 23(2) sets up a matter of exculpation rather than a negative element to be established before liability under s 23(1) can be established.  He said, at 491 - 492:

“The proceedings before the Commission are, however, both administrative and inquisitorial.  In such proceedings, it is not correct to speak of an onus of proof as between parties.  Rather is it a question of the matters as to which the inquisitor needs to be satisfied, on the evidence … 

… the essential elements of the principal discriminator’s liability [under s 23(1)(c)] do not include the negative proposition that there be no unreasonable hardship to such discriminator.”

24                  I respectfully agree.  It was necessary for the Commissioner to conclude that the University had indirectly discriminated within s 6 against Ms Sluggett with respect to the provision of means of access to the University (and the Health Service) premises within s 23(1)(c) before any question could arise about whether the University could rely on s 23(2) to avoid a finding of unlawful discrimination.

25                  The issue of “unjustifiable hardship” within s 23(2)(b) only becomes a live one if a finding is made under s 23(2)(a) that the premises in question are so designed or constructed as to be “inaccessible” to a person with a disability.  Though the Commissioner dealt at very great length with the issue of “unjustifiable hardship” in the context of s 23(2)(b), she did not make any express findings in relation to s 23(2)(a).  It is clear enough that the Commissioner took the view that neither the University campus nor the Health Service premises could be so described.  In dealing with the unjustifiable hardship issue, the Commissioner referred to Ms Sluggett’s failure to “avail herself of the alternative routes at the University or in the Health Service” which she could have used to get access to the various places she needed to go to.  When she ultimately came to deal with s 6, the Commissioner found that Ms Sluggett was able to comply with the requirement “such as it was … to attend classes within the University”.  These findings are incompatible with the University or the Health Service premises being “inaccessible” within s 23(2)(a).  But the Commissioner’s failure to make an express finding in relation to inaccessibility within s 23(2)(a) does not assist in understanding why she spent so much effort in dealing with “unjustifiable hardship”.

26                  Having dealt at length with the issue of “unjustifiable hardship” within s 23(2)(b), the Commissioner finally returned to the critical issue, viz, whether the University had indirectly discriminated against Ms Sluggett within s 6 in relation to the provision by it of means of access to the University premises and the Health Service premises.  Here, the Commissioner focused attention on whether the University had, in terms of s 6, required Ms Sluggett to comply with a requirement or condition in relation to access to either premises and, if so, whether that requirement was one with the characteristics referred to in s 6(a), (b) and (c).  The applicant’s case was that the University did require her to comply with the requirement of attending classes held at the University campus and the requirement of attending the Health Service premises with the University disputing those contentions.  The applicant did not contend that she was subjected to any requirement to use particular routes within either the campus or the Health Service in going about her activities at those premises. 

27                  As to whether there was a requirement imposed on the applicant, the Commissioner observed that any such requirement “must arise out of access to the premises” and continued:

“Ms Sluggett was, as I understand it, not required to attend at the University premises in any formal sense.  Clearly it was for her benefit to attend lectures, tutorials and the library, but Ms Sluggett could have completed her studies without such attendance.  In this sense, as attendance of class was not a part of the assessment scheme or required for the completion of the course (other than for the Fieldwork placements), there was no such requirement.

I accept however, in a less stringent and formal sense, Ms Sluggett was ‘required’ to attend her classes.  It would be much more difficult to successfully complete her course if she did not attend her classes which were principally held in the respondent’s premises.”

28                  In relation to s 6(a), the Commissioner found that “[t]here were some difficulties of access Ms Sluggett faced in attending at the premises which did not face a substantially higher proportion of other students at the University”.  In relation to s 6(b) and (c), the Commissioner found:

“… I am of the view Ms Sluggett was able to comply with the requirement, such as it was: there was a different route which would significantly reduce the difficulties in access she faced, but Ms Sluggett did not avail herself of the alternative route within the University in general.  I am satisfied that in so far as there was a requirement for her to attend classes within the University, this was reasonable, and she was able to comply.  Her ability to comply with this requirement was affected by her disability and her increasing debility as a consequence of the development of Post Polio Syndrome, but this aspect of her circumstances is in my view relevant to a consideration of s.23(2) and s.11 of the Act, (access to premises and unjustifiable hardship), rather than s.6(c).”  (emphasis added)

29                  After dealing with Ms Sluggett’s case with respect to the Health Service, the Commissioner concluded:

“Further I am satisfied indirect discrimination cannot be made out in relation to Ms Sluggett’s access to the University campus premises.  Apart from the issues discussed above, I am satisfied that ‘having regard to circumstances of the case’, and again taking into account the nature of the complaints Ms Sluggett made in the course of her studies, her familiarity of the premises, the nature of the premises, and the alternative routes and services available to students with disabilities, it is not possible to say any requirement of access to the premises imposed by the respondent on its students and in particular on Ms Sluggett was not reasonable.”

30                  It is difficult to understand what the Commissioner had in mind, against the background of these findings and the associated passages in her reasons, when the Commissioner made the comments in the passage in emphasis in [28] above.  Ms Sluggett based her case before the Commissioner of disability discrimination on the problems in getting access to the relevant premises caused by her increasing debility through 1993.  She did not herself know the reason for that until post polio syndrome was diagnosed at the very end of 1993.  She did not, according to the findings made by the Commissioner, reveal her increasing problems in moving about the relevant premises through 1993 to any University staff or staff at the Health Service.  Despite her difficulties, she did not seek advice or assistance from the unit within the University administration set up to assist disabled students, though she knew of its existence.  All these considerations are, in my opinion, relevant to whether any requirement with respect to access that might have existed was “not reasonable having regard to the circumstances of the case” within s 6(b).  The Commissioner, in her closing comments set out in [29], recognised this.  She relied on these considerations as justification for her express finding that:  “it is not possible to say any requirement of access to the premises imposed by the respondent on its students and in particular on Ms Sluggett was not reasonable”.

31      In relation to the Health Service, the Commissioner found that there was no requirement imposed by the University that the applicant attend at those premises.  The Commissioner reached this conclusion because, though accepting that Ms Sluggett was required by the University to complete a placement for successful completion of the field work subject and though her placement was made at the premises of the Health Service, she was not “required” by the University to attend a placement at those particular premises.  She selected a particular area of research and an attempt was made by the University to provide a placement which would facilitate that particular research.  The Commission found that the applicant inspected the Health Service premises before she accepted a placement there and knew before commencing that her place of work would be on the second floor of the Health Service building.  She did not during the initial inspection or at any time prior to signing the contract I have referred to, raise any concerns about access to her office.  To get to it she had to walk up a conventional staircase from the footpath to the first floor and then a spiral staircase to the second floor.  Ms Sluggett said that she in fact encountered serious problems using the spiral staircase and fell on several occasions.  However, at no time, including at a meeting she had with her supervisors on 21 October 1993, did she tell anyone of the difficulties she was having.  She acknowledged she knew of a second, conventional staircase at the back of the building which also leads to the second floor and which she could have used instead of the spiral staircase, but did not do so.  The only complaint she made at any time in 1993 concerning this placement was difficulty in getting to the premises from her home. 

32                  Since the Commissioner concluded that the applicant was not required to attend the Health Service she did not need to consider the issue raised by s 6(b) of whether the “requirement” was reasonable in the circumstances.  But she did go on to consider whether a requirement, had one been found to exist, would have been reasonable.  She concluded that because the applicant did not draw to the attention of the University or anybody from the Health Service her difficulties in accessing the premises and the fact that those difficulties were not self-evident, that it was reasonable for the University to expect her to comply with that requirement, ie, that the University in that event would not have discriminated against her.  She said:

“I am not satisfied Ms Sluggett was not able to comply with any requirement relating to access or attendance at the Health Service premises.  At the same time I accept there were real difficulties in accessing these premises because of her disability and her increasing general debility as a consequence of it.  She discussed her disability with Ms Perkons prior to the placement commencing but did not raise any concerns in the course of the placement, and I am satisfied such concerns were not apparent in the course of her placement.  These factors are relevant to whether the requirement was ‘reasonable having regard to the circumstances of the case’.  In the absence of complaint or attention being drawn to the difficulties, and the difficulties of access not being self evident, it is my view indirect discrimination under s.6 of the Act cannot be made out in relation to Ms Sluggett’s placement at the Health Service.”

33                  Further, the Commissioner said:

“Nor was there evidence Ms Sluggett was not able to comply with any requirement to attend the premises as part of her placement: she made arrangements to which she referred in the initial discussions about her placement to cover time she might have off sick during the course of the placement, and her placement was extended to allow her to make up time when she was ill.  Further, she was given specific permission to work at home if her physical condition made this more appropriate.  Although she gave evidence she had found it extremely difficult to negotiate the spiral staircase and the front staircase at the Health Service, this evidence is not supported by that of other witnesses, or of contemporaneous complaints made by Ms Sluggett.  Further, she was able to access her office by using the conventional stairs at the rear of the building.” 

34                  The Commissioner expressly found that she was not satisfied that Ms Sluggett was not able to comply with any requirement relating to access or attendance at the Health Service premises.

35                  The applicant contends that the Commissioner made a number of reviewable errors in making her findings:

(1)        of no discrimination in relation to access to Flinders University campus premises.  (Grounds 4, 5 and 6 of the amended application for an order of review)

(2)        of no discrimination in relation to access to the Health Service premises.  (Grounds 7, 8 and 9)

(3)        that the unjustifiable hardship provisions were established in relation to the complaints regarding both the Flinders University campus and the Health Service premises.  (Grounds 10 and 11)

36                  As to the first issue raised by the application for an order of review, the Commissioner found there was no requirement by the University that the applicant attend classes on the campus and that she could have completed her course without such attendance.  But once she decided to attend the classes offered by the University, she had to deal with the problems created for her by the layout of the University in moving about the campus to do that.  Though the Commissioner spoke of her being subject to a “less stringent” requirement to attend classes, she treated it as involving a requirement to move through the campus from the applicant’s entry points to her classrooms.  The University accepts that the latter requirement is integral to attendance at classes.  Once the applicant elected to attend classes she can be regarded as faced with a requirement within s 6 that involved the need to deal with the means that existed for her to move from where she entered the campus to her classrooms and the library:  cf Waters v Public Transport Corporation (1991) 173 CLR 349 at 361 - 362.  The Commissioner dealt in detail with whether the subjection of the applicant to such a requirement involved indirect discrimination against her contrary to s 23(1)(c).  The applicant here challenges how the Commissioner dealt with this question.

37                  By ground 4 the applicant alleged that there was no evidence to justify the Commissioner’s findings that the requirement that the applicant attend classes at the University campus was a reasonable one and no evidence to justify the Commissioner’s finding that the applicant was able to comply with that requirement.  By ground 5, the applicant contended that the Commissioner erred “as a matter of law” in finding that she could reach her classes by lifts instead of stairs and, by ground 6, the applicant contended that the Commissioner also erred, again “as a matter of law”, in finding that she could access the library by using the buzzer facility.

38                  The argument which the applicant developed under the umbrella of grounds 4, 5 and 6 was that there was no evidence before the Commissioner to support what was said to be the Commissioner’s critical finding that the applicant was able to use lifts to access each part of the University campus she had to attend;  in the alternative, it was said that the finding was not reasonably open.  It was said the finding as to the availability of lifts was of critical importance because it resulted in the Commissioner finding both that the applicant was able to comply with the requirement to attend classes and that that particular requirement was reasonable.  The applicant did not challenge the findings as to the existence of the lifts, only that they were available to her, a challenge based on her ignorance of their existence and the University’s failure to tell her that she could use them.

39                  Under s 5(1)(h) the ADJR Act, an administrative decision will contain reviewable error if there is no evidence or other material to justify the making of the decision.  But s 5(3) imposes a limitation on the availability of this “no evidence” ground.  Before it will be made out in the particular case, either sub-paragraphs (a) or (b) of s 5(3) must be established.  The applicant, in her submissions, did not deal with this requirement.

40                  The applicant’s complaint as to the absence of evidence to support the finding as to the availability of lifts cannot answer the requirements of s 5(3)(a).  The Commissioner was not required by law to find that there was no indirect discrimination by the University against Ms Sluggett with respect to access to campus premises only if it were established that lifts were available for her use.  The finding in question, though an important one, was but one step taken by the Commissioner in finding the facts upon which she arrived at her ultimate conclusion of no discrimination.  However, the Commissioner’s finding as to the availability of lifts was so central to her ultimate decision against Ms Sluggett that it is capable of amounting to reviewable error within s 5(1)(h) by reason of sub-section (3)(b), if the applicant could establish that lifts were not, in fact, available for her use in getting access to those parts of the campus which she needed to attend.  But that is a hopeless task in view of the Commissioner’s extensive discussion of the relevant evidence she relied on to make her findings on this topic. The Commissioner made specific findings as to the existence and availability to students of these lifts.  She recorded that, in making her findings of fact, she took into account not only the evidence put before her by the parties, but “the view of the University grounds and premises and the Health Service premises conducted as part of the Inquiry, in the company of the representatives of the complainant and the respondent”.  The Commissioner not being bound by the rules of evidence was entitled to act on what she saw by way of the availability of lifts in the course of this view. 

41                  On the findings made by the Commissioner, the applicant’s ignorance of the lifts was due to her failure to seek information on such matters from a source within the University which she knew was in a position to provide her with information about access for disabled persons within the campus.  Ignorance of the availability of these lifts due to the applicant’s election not to make inquiry cannot provide any ground for attacking the Commissioner’s finding that these lifts were available to the applicant.

42                  As I have said, the applicant did not deal with the limitations in s 5(3) the ADJR Act on the “no evidence” ground of review.  Rather were the applicant’s submissions directed to the finding about the availability of the lifts being against the weight of the evidence and not being “reasonably open” on the evidence.  The Court’s review jurisdiction under the ADJR Act does not extend to permitting it to review the correctness of a factual conclusion arrived at by the Commissioner on the basis of her evaluation of the body of evidence before her relating to the particular finding. 

43                  It is not to the point to submit, as the applicant did, that the Commissioner’s findings as to the applicant’s ability to access relevant locations on campus because of the availability to her of lifts is a conclusion that is not reasonably open.  Though the applicant drew attention to passages in the evidence before the Commissioner that might be thought to raise questions about the correctness of some of the Commissioner’s findings, little attempt was made to demonstrate that there was in truth no evidence to support what she described as the Commissioner’s critical finding about the availability of lifts.  Rather were her submissions directed to showing that the Commissioner’s findings were not reasonably open to her, ie, that they were against the weight of the evidence.

44                  The applicant did attack the Commissioner’s finding that she could have obtained access to the library by lift rather than stairs by obtaining a key available to disabled students on request, that would have enabled her to use the buzzer to get access to the lift on the ground of absence of evidence.  The applicant conceded that there was evidence to support the conclusion that there was a lift in the library, but contended that there was no evidence that there was any suitable way for her to gain access to that lift.  Mr Meinel, the Manager of the University’s Buildings and Properties Division, both in his report and in cross-examination, gave evidence that, in 1993, an arrangement was in place for disabled students to be given keys to the box securing the buzzer for the express purpose of enabling them to get to the library level by lift without having to use stairs.  The applicant gave evidence that she was not aware, during 1993, of the existence of this facility.  But there was ample evidence in Mr Meinel’s material for the Commissioner to find, as she did, that this facility was available to the applicant in 1993.  That the applicant may not have known of its existence because of her election not to seek any advice or assistance from the University’s Health and Counselling Service, of which she was well aware, does not provide any ground for the assertion that there was no evidence to justify the Commissioner’s important finding that this lift was available to the applicant to enable her to get access, despite her disabilities, to the library.

45                  The applicant also challenged the Commissioner’s findings that such requirement as may have existed for attendance at classes on the campus was reasonable and that the applicant was able to comply with that requirement, contending that the Commissioner failed to examine all the circumstances of the case and, in particular, failed to consider the evidence from the point of view of both the applicant and the University before making these findings.  Instead, the Commissioner, so it was submitted, wrongly held that the applicant’s increasing inability to comply with the requirement as a result of the development of post polio syndrome was relevant only to a consideration of the unjustifiable hardship provisions of ss 23(2) and 11 rather than whether indirect discrimination within s 6 was made out.  The applicant points to the statement by the Commissioner in emphasis in the passage set out in [28] above in support of this submission. 

46                  Of the provision equivalent to s 6(b) in s 17(5) the Equal Opportunity Act 1984 (Vic), McHugh J said, in Waters v Public Transport Corporation at 411:

“In reconsidering whether the imposition of the requirements or conditions was reasonable, the Board must examine all the circumstances of the case.  This inquiry will necessarily include a consideration of evidence viewed from the point of view of the appellants and of the Corporation.”

47                  It can be accepted that the Commissioner was bound to follow this course in applying s 6(b) and (c) here.  The impact of the applicant’s disability and her increasing debility due to the progress of her post polio syndrome on her mobility were considerations relevant to both the reasonableness of the requirement to attend classes and the applicant’s ability to comply with that requirement.  The Commissioner was in error in saying they were relevant to the issue of “unjustifiable hardship” in s 23(2)(b) rather than to s 6(b) and (c).  Though not relied on as a ground of review in the amended application, I accept that, if this passage in the Commissioner’s reasons stood alone, there would be reason for holding that her decision was flawed with reviewable error in so far as it could be said that in making her decision that there was no indirect discrimination by the University within s 6 against the applicant the Commissioner fell into error within s 5(1)(e) and (2)(b) the ADJR Act because she failed to take into account the impact on the applicant’s mobility of her disability and her increasing debility in considering the issues raised by s 6(b) and (c) of the Act.

48                  But, notwithstanding this statement, it is, in my opinion, clear enough that the Commissioner did take into account these considerations in arriving at her conclusions on the issues raised by both s 6(b) and (c).  In the passage set out in [28] above, in her reasons immediately preceding this statement and in her concluding comments set out in the passage at [29] above, the Commissioner seems to have quite clearly taken into account, in dealing with these two issues, both the applicant’s disability and her progressive debility.  The Commissioner considered, in some detail, the impact of the applicant’s polio related disabilities, including those that worsened through 1993, on her mobility.  She also considered the topography and layout of the campus, the location of lifts and the way in which they facilitated movement about the campus between locations of relevance in this case.  The Commissioner also considered the facilities, including advice, provided by the University’s Health and Counselling Services to disabled students to assist them specifically in moving about the campus.  I can see no foundation for the submission that the Commissioner somehow failed to consider all the evidence relevant to both s 6(b) and (c) from the point of view of each of the University and the applicant. 

49                  The applicant, in argument, raised a number of other matters that went outside the grounds relied on in the amended application for an order of review.  One such matter was the contention that the Commissioner relied on the evidence about what was referred to as “route 5” in reaching her conclusion that there was a route available to the applicant, but which she did not use, which would have significantly reduced her difficulties of access.  This route is clearly identified in Mr Meinel’s report, Ex R33.  That went into evidence in the University’s case late in the hearing.  There can, I think, be little doubt as to the significance the University was placing on this particular route when Meinel’s report was tendered and when he gave evidence.  It is, in my opinion, of no assistance to the applicant to say nothing more than that the availability of this route was never put to her in cross-examination.  In order to make out a complaint of error due to a denial of natural justice within s 5(1)(a) the ADJR Act, the applicant would, I think, in the circumstances of this case, have had to lay an evidentiary basis in this Court to show that even if she was not cross-examined about “route 5”, neither she nor her counsel, at the hearing before the Commissioner, appreciated that the University was relying on the references to “route 5” in Meinel’s report as evidence supporting a finding of no discrimination against it and that neither the applicant nor counsel appreciated that the Commissioner might rely in that way upon that material in reaching her decision.  No attempt was made to show, in this Court, that the use made of Mr Meinel’s evidence about “route 5” may have led to the Commissioner’s decision being flawed with reviewable error because the applicant did not appreciate, by the end of the hearing, that the University was relying on the evidence concerning “route 5” to justify a finding in its favour.

50                  It was also submitted that the Commissioner failed to interpret the expression “does not or is not able to comply” in s 6(c) beneficially:  it was said that the fact that the applicant can comply with the requirement or condition in theory does not mean that there cannot be a finding that she cannot comply in practice. 

51                  In Mandla v Dowell Lee [1983] 2 AC 548, the issue was whether a school, by insisting that a Sikh student not wear a turban, had infringed racial discrimination legislation.  One issue was whether, in terms of the relevant statutory provision, the requirement not to wear a turban was one with which the plaintiff “cannot comply”.  The House of Lords accepted that, while it was physically possible for the student not to wear a turban, in the context of the racial discrimination legislation there in question, “cannot comply” could not be read as meaning “cannot physically comply” with the requirement “so as to indicate a theoretical possibility, but as meaning ‘can in practice’ or ‘can consistently with the customs and cultural conditions of the racial group’ …”.  (pp 565 - 566)  Bogle v Metropolitan Health Service Board (2000) EOC 93-069 raised for determination the question whether a requirement that a supervisory position be performed on a full-time basis involved discrimination in employment against a mother only able to work part-time because of family responsibilities.  One issue was whether the requirement to work full-time was one with which the claimant “is not able to comply” within the provision of the Equal Opportunity Act 1984 (WA) corresponding to s 6(c).  The Tribunal said of this provision:

“177.   In some cases the ability to comply or not may be objectively readily demonstrable (as eg where the requirement is that a person be of a particular height or weight); in other cases it may be more subjective.  Where the latter, questions of degree will invariably arise and it is necessary then to have regard to all the circumstances including the subjective circumstances, beliefs and expectations operating on the complainant and those persons in the relevant groups.

…

181.          That physical ability to comply is not the test was recognised by the English Court of Appeal (sic) in Mandla v Dowell Lee.  …

182.          We accept the submission made on behalf of the complainant that in determining compliance or ability to comply the law imports a notion of reasonableness which is to be assessed having regard to all relevant circumstances in the particular case.  …”

The “broad” approach taken in these cases to construction of the phrase in s 6(c) was adopted by Lehane J in Travers v State of New South Wales [2000] FCA 1565 at [17].

52                  It is the context in which the expression “is not able to comply” is found which must control the meaning of that phrase.  That is reflected in those three decisions.  The question the phrase in s 6(c) of the Act throws up for examination is whether a requirement imposed by the alleged discriminator on the aggrieved person which is one with which a substantially higher proportion of persons without the aggrieved person’s disability are able to comply and which is not a reasonable requirement to impose on the aggrieved person, having regard to the circumstances of the case, is one with which the aggrieved person is “not able to comply”.  It is clear that the Act is intended to have a wide reach:  its object is stated in s 3 to be to eliminate discrimination against persons on the ground of disability in certain areas of activity (not absolutely but only “as far as possible”).  The term “disability” is very widely defined in s 4(1):  it includes a condition from which a person does not in fact suffer, but which is merely imputed by others to that person.  In my opinion, s 6(c) requires inquiry into whether the aggrieved person is able, in a practical as opposed to a theoretical sense, to comply with the particular requirement, having regard to the factual setting in which the requirement exists.  Here, the requirement was that the applicant attend particular locations on the campus where her classes were held.  It was not a requirement that she travel to those locations by any particular route.  Whether the requirement was one with which “she is not able to comply” requires regard to be had to the means available to the applicant, as a disabled student, for moving about the campus to the requisite locations.  The Commissioner, correctly in my opinion, approached this issue by having regard not just to the applicant’s declining mobility, but also to the facilities such as lifts which were available to her in moving where she had to go on the campus.  I do not accept that, though not made the subject of any ground of complaint in the amended application, the Commissioner applied an erroneous construction of s 6(c) in resolving the case.

53                  As to the second issue raised by the application for an order of review, the applicant challenges the Commissioner’s finding that the University did not impose any requirement or condition on her within s 6 that she attend the Health Service premises.  The Commissioner reached this conclusion, firstly, because the University had no control over those premises, including the means of access to and within those premises; secondly, because it was Ms Sluggett who chose those particular premises at which to perform her field work placement required of her by the University; thirdly, Ms Sluggett chose those premises after inspecting them and discussing her proposed placement there with one of the Health Service’s supervisors and, finally, because Ms Sluggett never made any complaint either to University officials or the Health Service supervisor that she was having difficulties, particularly with access from the first floor of the premises to her office on the second floor.

54                  It is true, as the applicant submits, the term “requirement or condition” in a statutory provision like s 6 the Disability Discrimination Act should be interpreted broadly:  Waters v Public Transport Corporation at 393 per Dawson and Toohey JJ.  But that does not provide a great deal of guidance to the true meaning of the phrase in s 6 in determining whether the University can be said to have required Ms Sluggett to comply with a requirement or condition that she attend the Health Service premises.

55                  Section 6 provides that:  “a person … discriminates against another 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” which has three characteristics.  It is clear that an obligation does not have to be imposed by the discriminator in express terms on the aggrieved person before it will be capable of amounting to a “requirement or condition” within the section:  cf Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 258.  It is also clear that there can be a “requirement or condition” within s 6 in circumstances where the aggrieved person will only become subject to the obligation if he or she voluntarily elects to have some form of contact or to enter into some form of relationship with the discriminator:  cf Waters v Public Transport Corporation at 361 - 362 per Mason CJ and Gaudron J.

56                  But the concept of a “requirement or condition” with which the aggrieved person is required to comply involves the notion of compulsion or obligation.  See the definitions of “require” and “requirement” in the Macquarie Dictionary, 3rd ed, and the definition of “condition”, which includes the following:

“a circumstance indispensable to some result; a prerequisite; that on which something else is contingent … something demanded as an essential part of an agreement …”

And whether a “requirement or condition” within s 6 has been imposed in the context of the Disability Discrimination Act will take its colour from the particular setting in which it is said a prohibition against discrimination created by the Act has been infringed by indirect discrimination. 

57                  It is only if the University can be said to have required, in the sense of “obliged” or “compelled”, Ms Sluggett to do something in relation to the Health Service premises that involved access to those premises that it could be said to have required her to comply with a requirement or condition in relation to the provision of means of access to those premises capable of amounting to indirect discrimination against her contrary to s 23(1)(c).

58                  The University required Ms Sluggett to attend a field work placement for one semester in 1993 with an organisation prepared to accept such post graduate student placements and acceptable to the University.  The University, on the findings by the Commissioner, left it to the applicant to select the Health Service in question for her placement.  No doubt it was one of a number of organisations acceptable to the University for this purpose.  The Commissioner found that if Ms Sluggett had raised at any time complaints about difficulties she was experiencing in moving about the premises, the University would have considered making other alternative arrangements to complete her placement.  But once Ms Sluggett selected the Health Service, she was required by the University to enter into an agreement with a supervisor at the Health Service and the Social Science School’s field work co-ordinator.  This agreement required her to attend at the Health Service premises on precisely specified days within times also specified throughout the period 18 March to 12 November 1993.  The agreement states that the aim of requiring her to attend at these premises:  “is to gain research experience and to assist in the completion of a research project”.  Once Ms Sluggett selected the Health Service as the place where she would do her field work placement and entered into the agreement in question, it can be said that the University imposed a requirement on her that she attend at those premises.  But, I do not think it can be said that it imposed any “requirement or condition” on her within s 6 “in relation to the provision of means of access” to those premises within s 23(1)(c). 

59                  Each of sub-paragraphs (a), (b), (d), (e) and (f) in s 23(1) prohibits conduct confined to either allowing or refusing the disabled person to enter, use or leave the premises.  Each can apply to a person, such as a doorman, with temporary authority over who can enter or use or who must leave premises, as much as it can apply to the person who owns or occupies the premises.  In contrast, s 23(1)(c) is only infringed if a person discriminates against another on the ground of that other’s disability “in relation to the provision of means of access to such premises”.  I do not think this sub-paragraph can be read as applying to persons with temporary control over those who can enter, use or exit premises or even to persons in permanent control of premises who impose restrictions on who can enter or stay on the premises.  The expression “the provision of means of access to” premises is better read as applying not to people who have the capacity (either temporary or permanent) to control who can enter, stay in or leave premises, but only to people with the capacity to control structural elements of premises by which access is obtained.  That this is the correct reading of s 23(1)(c) is, in my opinion, confirmed by s 23(2).  It is quite specific in being confined, as a ground of exculpation from a finding of unlawful discrimination, to the case where a person is alleged to have unlawfully discriminated by breaching the prohibition in s 23(1)(c).  It is not available as a defence to a person charged with discrimination within any of the other sub-paragraphs of s 23(1).  It will exculpate the alleged discriminator only if, among other things, that person should not be burdened with the cost of having to make alterations to the premises.  It follows that once it is accepted, as it must be on the Commissioner’s findings, that the University had no power over the structure of the Health Service premises and, in particular, over those elements that enabled access to and within those premises to be had, the attack on the Commissioner’s finding that the University did not indirectly discriminate against Ms Sluggett because it did not impose any requirement or condition within s 6 upon her in relation to the provision of means of access to the Health Service premises contrary to s 23(1)(c) must fail.

60                  It is unnecessary to consider in detail the complaints made by the applicant about the Commissioner having fallen into error in finding that she was able to comply with any requirement, if there had been one, to attend the Health Service premises other than to say that for the same reasons I have rejected this complaint in relation to the requirement that she attend locations on the University campus the attack on the Commissioner’s finding that she was able to comply with that requirement with respect to the Health Service must also fail.

61                  As to the third issue raised by the application for an order of review, Ms Sluggett contended that the Commissioner’s finding that the “unjustifiable hardship” provision was established in relation to Ms Sluggett’s complaints both with respect to the University premises and the Health Service premises was flawed with reviewable error because the Commissioner, in making this finding, took into account irrelevant considerations, viz, Ms Sluggett’s knowledge of the premises and awareness of possible access issues, and her failure to disclose her disability or, more accurately, her increasing debility to anyone at the University or at the Health Service premises.

62                  I have already explained why I think it was irrelevant for the Commissioner to embark upon the detailed investigation she did into whether the University was able to show that “unjustifiable hardship” within s 23(2)(b) would be imposed on it if it were required to make any alteration to the University premises or to the Health Service premises.  But the Commissioner’s error in thinking this was a matter for her to inquire into and determine is not one which can be said to have affected her decision that the University did not indirectly discriminate against Ms Sluggett in relation to the provision of access either to the University premises or the Health Service premises within ss 6 and 23(1)(c).  The Commissioner gave reasons for reaching this conclusion which dealt with the issues raised by ss 6 and 23(1)(c) and the applicant has not shown any reviewable error in the Commissioner’s decision on these matters.  That the Commissioner may, in a discrete part of her reasons, have embarked upon an irrelevant excursus into the “unjustifiable hardship” issue is not reason for setting aside the decision.  The making of the decision that there was no discrimination within ss 6 and 23(1)(c) cannot be said to be an improper exercise of the Commissioner’s statutory power within s 5(1)(e) and (2)(a) the ADJR Act:  that decision was not affected by the Commissioner’s excursus into the issue of “unjustified hardship”:  cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353.

63                  The application will be dismissed.

Associate:

Dated:              13 August 2002