FEDERAL COURT OF AUSTRALIA

Haraksin v Murrays Australia Limited (No 2) [2013] FCA 217

THE COURT DIRECTS THAT:

1.    Within 7 days, the parties are to file short minutes setting out the declarations and orders (including in relation to costs) that they submit are appropriate in light of my reasons.

2.    The proceeding be listed for further submissions in relation to the parties’ proposed declarations and orders on a date to be fixed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant was born with osteogenesis imperfecta (brittle bone disease). She is reliant on a wheelchair for mobility. The respondent operates a coach service between Sydney and Canberra. The applicant alleges that the respondent breached certain provisions of the Disability Discrimination Act 1992 (Cth) (the DD Act) by unlawfully discriminating against her with respect to access to premises and with respect to the provision of services on the ground of her disability. The applicant also alleges that the respondent breached various provisions of the Disability Standards for Accessible Public Transport 2002 (Cth) (the Standards).

2    The respondent owns a total of 154 buses and coaches. (Except where it is necessary to distinguish between buses and coaches I shall simply refer to them collectively as the respondent’s vehicles). The respondent uses approximately 17 of its vehicles for fixed route services (as distinct from charter services) including its Sydney–Canberra service.

3    On 14 August 2009 the applicant telephoned the respondent and requested to book a seat on a wheelchair accessible coach travelling from Sydney to Canberra on or about 24 August 2009 and returning on or about 26 August 2009 so that she could attend a conference. The applicant was informed by the person who took her call that the respondent did not have any wheelchair accessible vehicles and that her booking could not be taken. The applicant made other arrangements to travel to and from Canberra.

4    It is common ground that the applicant suffers from a “disability” as defined in s 4(1) of the DD Act. It is also common ground that in August 2009 the respondent did not have any wheelchair accessible buses or coaches in its fleet.

5    The specific breaches of the DD Act and the Standards that are asserted by the applicant against the respondent are as follows:

    the respondent unlawfully discriminated against the applicant with respect to access to premises and the provision of goods and services contrary to s 5, s 23(a), (b) and (c) and/or s 24(a) and (b) of the DD Act (the direct discrimination claims);

    the respondent unlawfully discriminated against the applicant with respect to access to premises and the provision of goods and services contrary to s 6, s 23(a), (b) and (c) and/or s 24(a) and (b) of the DD Act (the indirect discrimination claims); and

    the respondent breached s 32 of the DD Act and s 33.1, s 33.2 and Schedule 1 of the Standards (the Standards claims).

6    Late in the hearing the applicant was given leave to file an amended originating application (the amended application).

7    The substantive relief claimed by the applicant in the amended application falls into the following four categories:

    Paragraphs 1 to 4 of the amended application claim various declarations, all of which are to the effect that the respondent engaged in unlawful discrimination. In each case the unlawful discrimination relied upon relates to the applicant’s attempt to arrange travel between Sydney and Canberra in August 2009;

    Paragraph 5 of the amended application claims an order directing the respondent not to repeat or continue the conduct referred to in the declarations claimed in paragraphs 1-4.

    Paragraphs 6 to 9 of the amended application claim declarations in relation to the applicant’s alleged non-compliance with the Standards. These include declarations that the respondent was, and continues to be, in breach of s 32 of the DD Act and that “the Respondent is an operator and/or provider of a public transport service” which included “both the scheduled fixed route services and the charter services”.

    Paragraphs 10 to 14 of the amended application claim various mandatory orders. One of these is an order requiring the respondent to comply with the Standards. Other mandatory orders claimed would require the respondent to only purchase coaches that comply with the Standards and not to put coaches already purchased by it into service without ensuring that they are wheelchair accessible.

8    I will return to the question of what relief should be granted in respect of any breaches of the DD Act or the Standards that are established by the respondent. At this stage I will merely note that there is a significant dispute as to the applicant’s right to press for much of the relief she has claimed on the ground that she is precluded from doing so by virtue of s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act).

THE RELEVANT STATUTORY PROVISIONS

The DD Act

9    The objects of the DD Act are set out in s 3. One object of the Act is to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of access to premises and the provision of facilities and services.

10    Sections 5 and 6 are in Pt 1, Div 1 of the DD Act. They provide:

5    Direct disability discrimination

    (1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

    (2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

        (a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

        (b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

    (3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

6    Indirect disability discrimination

    (1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

        (a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

        (b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

        (c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

    (2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

        (a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

        (b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

        (c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

    (3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

    (4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

11    Section 11 is also found in Pt 1, Div 1 of the DD Act. It provides:

11    Unjustifiable hardship

    (1)    For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

        (a)    the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

        (b)    the effect of the disability of any person concerned;

        (c)    the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

        (d)    the availability of financial and other assistance to the first person;

        (e)    any relevant action plans given to the Commission under section 64.

        Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

    (2)    For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

12    Sections 23 and 24 are found in Pt 2, Div 2 of the DD Act. These sections provide:

23    Access to premises

    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.

24    Goods, services and facilities

    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:

    (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.

13    Section 29A of the DD Act provides:

29A    Unjustifiable hardship

    This Division (other than section 30) does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.

14    Sections 31(1) and 34 are found in Pt 2, Div 3 of the DD Act. They provide:

31    Disability standards

    (1)    The Minister may, by legislative instrument, formulate standards, to be known as disability standards, in relation to any area in which it is unlawful under this Part for a person to discriminate against another person on the ground of a disability of the other person.

…

34    This Part not to apply if person acts in accordance with disability standards

        If a person acts in accordance with a disability standard this Part (other than this Division) does not apply to the person’s act.

15    Section 125(1) of the DD Act provides:

    (1)    This Act does not confer on a person a right of action in respect of the doing of an act that is unlawful under a provision of Part 2 unless a provision of this Act expressly provides otherwise.

The AHRC Act

16    Section 46P of the AHRC Act provides for the lodgement of complaints with the Australian Human Rights Commission (the Commission) by persons alleging unlawful discrimination. Such a complaint may be lodged by a “person aggrieved” by the alleged unlawful discrimination. Section 46PA provides that a complainant may at any time amend the complaint with the leave of the President.

17    A complaint that is made to the Commission under s 46P must be referred to the President (s 46PD). The President must, subject to some limited exceptions, inquire into a complaint (s 46PF). The President is given power to require a person to provide relevant information or relevant documents (s 46PI). The President may decide to hold a compulsory conference, and if so, the President must direct the complainant and respondent to attend (s 46PJ). Section 46PH provides for termination of a complaint by the President. There are various grounds upon which the President may terminate a complaint under s 46PH. They include:

    if the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination (subs (1)(a));

    if the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance (subs (1)(c));

    if the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person (subs (1)(e));

    if the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or Federal Magistrates Court (subs (1)(h));

    if the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation (subs (1)(i).

18    Section 46PO(1)-(4) of the AHRC Act relevantly provides:

46PO    Application to court if complaint is terminated

    (1)    If:

        (a)    a complaint has been terminated by the President under section 46PE or 46PH; and

        (b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

        any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

    …

    (2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

    (3)    The unlawful discrimination alleged in the application:

        (a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

        (b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

    (4)    If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

        (a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

        (b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

        (c)    an order requiring a respondent to employ or re-employ an applicant;

        (d)    an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

        (e)    an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

        (f)    an order declaring that it would be inappropriate for any further action to be taken in the matter.

19    Under s 46PO(1), any person who was an affected person in relation to the terminated complaint may make application to either the Federal Court or the Federal Magistrates Court. An “affected person” is, for this purpose, a person on whose behalf the complaint was lodged (s 3(1)).

THE APPLICANT’S EVIDENCE

20    The applicant gave evidence in affidavit form that was not challenged in cross-examination or contradicted by other evidence. Her evidence was that she needed to travel between Sydney and Canberra so that she might attend a conference in Canberra on 25 and 26 August 2009 at which she was to make a presentation.

21    Before telephoning the respondent for the purpose of making travel arrangements, the applicant contacted CountryLink but found that the travel times its service provided were unsuitable.

22    The applicant gave evidence that she telephoned the respondent and had a conversation with a representative of the respondent to the following effect:

Applicant:    I would like to book a seat on a coach from Sydney to Canberra and wanted to request a wheelchair accessible coach.

Representative:    We do not have any wheelchair accessible buses in our fleet.

Applicant:    I recently travelled with CountryLink and they used wheelchair accessible buses as part of their service.

Representative:    CountryLink is a state service. We do not have any accessible buses.

Applicant:    If it helps, I can tell you when I need to travel, so you can schedule an accessible service.

Representative:    We do not have any accessible buses in our fleet, not one.

23    The applicant said she did not travel on the respondent’s service. She instead arranged for her husband to take time off and drive her to Canberra.

24    The applicant gave evidence that she and her husband, who also uses a wheelchair, travel to Canberra approximately once a year. It appears that these trips have been undertaken by them using a private vehicle. However, the applicant stated that she and her husband intend to travel to Canberra more frequently in the future and that they would find travelling by bus more convenient than driving.

MR DAMIAN LEE’S EVIDENCE

25    The respondent called evidence from Mr Damian Lee who is a general manager employed by the respondent. Mr Lee’s evidence establishes:

    The respondent operates fixed route, charter and tour services using buses and coaches. The respondent’s fixed route services include a range of scheduled services operating between Sydney and Canberra. The respondent operates an average of 15 services a day between Sydney and Canberra. The respondent also operates a fixed route service between Canberra, Wollongong and the South Coast and between Canberra and various destinations in or near the NSW snowfields. All of the respondent’s fixed route services operate out of its Canberra depot.

    Most of the respondent’s revenue is derived from charter operations. Most of these are undertaken using the respondent’s own vehicles but some involve the use of contract vehicles. A much smaller proportion of the respondent’s revenue is derived from its scheduled service operations.

    There is a distinction drawn in the transport industry between buses and coaches. Typically a coach will have high back seats with seatbelts and luggage bins under the floor. They will often include a toilet, and an overall higher level of fit out to provide comfort for a longer trip. A bus will usually have lower seatbacks, no seatbelts and grab handles for use by standing room passengers.

    The vehicles used by the respondent on its fixed route services are coaches that have a capacity of at least 34 seats.

26    It is apparent that the distinction between a bus and a coach will not always be easy to draw especially as it applies to smaller vehicles. However, the factors identified by Mr Lee in his evidence provide a reasonable and practical basis for distinguishing between a bus and a coach.

THE APPLICANT’S COMPLAINT

27    The applicant lodged a written complaint of unlawful discrimination with the Commission on 20 August 2009. She did so using a complaint form made available on the Commission’s website.

28    In the written complaint the applicant stated that she had been discriminated against because she has a disability. She nominated 14 August 2009 as the date upon which the event about which she complained took place. She described the event in these terms:

I need to go to Canberra at the end of August for work. I rang on 14 August 2009 asking about a wheelchair accessible bus to Canberra, return. I was told they have absolutely no accessible buses in their fleet. She said, well the government has buses attached to Countrylink, but we have none.

29    The applicant also stated that it was necessary for her husband to drive her to Canberra for a work related conference, and that her employer would have to pay much higher travel costs because the applicant could not travel by bus.

30    The applicant specified some desired outcomes in her written complaint. She said that she wanted the respondent to do the following:

(1)    Purchase some wheelchair accessible buses and comply with the Standards.

(2)    Advertise the availability of wheelchair accessible buses on their routes.

(3)    Train their staff in the use of the relevant equipment on their buses.

(4)    Provide monetary compensation of around $400 to the applicant’s employer for her travel expenses.

31    On 31 March 2010 the Commission wrote to the applicant’s solicitor advising that the decision had been taken to terminate the complaint pursuant to s 46PH(1)(i) of the AHRC Act. Representations were then made by the applicant’s solicitor to the Commission in support of a request that the decision to terminate the complaint be revoked. On 7 April 2010 the Commission wrote to the applicant’s solicitor advising that the decision to terminate the complaint had been revoked.

32    However, on 24 May 2010 the Commission again decided to terminate the applicant’s complaint in accordance with s 46PH(1)(i). It did so on the basis that the President of the Commission, by her delegate, was satisfied that there was no reasonable prospect of the complaint being settled by conciliation. The letter from the Commission to the applicant’s solicitor advising of the termination described the applicant’s complaint in these terms:

Ms Haraksin uses a wheelchair. Ms Haraksin states that on 14 August 2009 she contacted Murrays to arrange a bus trip from Sydney to Canberra for work but claims that Murrays advised her that it could not arrange a wheelchair accessible bus to take her to Canberra.

33    The letter advised that the applicant’s complaint had been considered under ss 5, 6, 11, 24, 29A and 32 of the DD Act.

34    The applicant commenced this proceeding against the respondent on 22 July 2010.

THE AMENDED STATEMENT OF CLAIM

35    The pleading upon which the applicant’s case has been contested is in her amended statement of claim filed 23 September 2011 (the ASC).

36    Paragraphs 1 to 3 of the ASC relate to matters that are admitted and uncontroversial. Paragraph 4 alleges that the respondent is an operator or provider of a public transport service. Paragraph 5 alleges that the respondent was required to comply with the Standards from the date they commenced, namely 23 October 2002. There are some particulars to paragraph 5 that seek to justify by reference to the specific parts of the Standards the allegation made in that paragraph.

37    Paragraph 6 of the ASC alleges that on 14 August 2009 the respondent breached s 32 of the DD Act and s 33.1, s 33.2 and Schedule 1 of the Standards. Particulars are then given. The particulars relate to the applicant’s dealings with the respondent on 14 August 2009 during which she attempted to make a booking with the respondent for travel between Sydney and Canberra.

38    Paragraphs 6A and 6B of the ASC were first introduced by way of amendments made on the date the ASC was filed. Paragraph 6A alleges that “[t]he applicant claims that the respondent is in breach of section 32 of the DD Act and section 33.1 of the Standards from 14 August 2009 and ongoing.” The same allegation is made in paragraph 6B but it refers to s 33.2 of the Standards instead of s 33.1. Some particulars are given under each of these paragraphs but they do not advance matters and need not be set out.

39    The direct discrimination claims are pleaded in paragraphs 7-9 of the ASC. These paragraphs and relevant particulars are as follows:

7.    The applicant claims that the respondent has unlawfully discriminated against her in the provision of services and/or access to premises on the ground of her disability, in breach of section 5 and sections 23(a), (b) and (c) and/or 24(a) and (b) of the DD Act.

    Particulars

    a.    The applicant claims that the “services” were transport services pursuant to the definition of “services” in section 4(1) of the DD Act.

    b.    The applicant claims that the “premises” were a vehicle, namely a bus or coach pursuant to the definition of “premises” in section 4(1) of the DD Act.

8.    The respondent in providing the applicant with services and/or access to premises treated the applicant less favourably because of her disability than in circumstances that are not materially different, the respondent treated or would have treated a person without her disability.

9.    The respondent in providing the applicant with services and/or access to premises did not make, or proposed not to make, reasonable adjustments for the applicant and the failure to make reasonable adjustments had, or would have, the effect that the applicant, because of her disability, was treated less favourably than a person without the disability in circumstances that are not materially different.

    Particulars

    a.    The applicant relies on paragraphs 6, 6A and 6B above.

    b.    The respondent refused to provide the applicant with a bus or coach that was wheelchair accessible.

    c.    The respondent did not provide wheelchair accessible means of access to a bus or coach.

40    The indirect discrimination claims are pleaded in paragraphs 10-12 of the ASC. These paragraphs and relevant particulars are as follows:

10.    The applicant claims that the respondent has unlawfully discriminated against her in the provision of services and/or premises on the ground of her disability, in breach of section 6 and sections 23(a), (b) and (c) and/or 24(a) and (b) of the DD Act.

    Particulars

    a.    The applicant repeats paragraphs 6, 6A, 6B and 7 and 9 above.

11.    The respondent in providing the applicant with services and/or access to premises discriminated against her on the ground of her disability, as the respondent required the applicant to comply with a requirement or condition, that is, that the applicant travel on a bus or coach that is not wheelchair accessible, which the applicant was not able to comply with and the requirement or condition has the effect of disadvantaging persons with a disability.

    Particulars

    a.    The applicant repeats paragraphs 6, 6A, 6B, 7 and 9 above.

    b.    The requirement or condition is not reasonable.

12.    The respondent in providing the applicant with services and/or access to premises discriminated against her on the ground of her disability, as the respondent required the applicant to comply with a requirement or condition, that is, that the applicant travel on a bus or coach that is not wheelchair accessible, which the applicant was able to comply with the requirement or condition only if the respondent made reasonable adjustments and the respondent did not make reasonable adjustments and the failure to make reasonable adjustments has the effect of disadvantaging persons with a disability.

    Particulars

    a.    The applicant relies on paragraphs 6, 6A, 6B, 7, 9 and 11 above.

41    There are several points to make about the ASC:

    First, paragraphs 6 and 6A allege, in substance, that the respondent was in breach of s 32 of the DD Act and the Standards on 14 August 2009 and at all times thereafter. These allegations underpin the applicant’s claim to declarations that the respondent breached, and continues to breach, s 32 of the DD Act and Standards. They also underpin the applicant’s claim to orders requiring that the applicant not continue or repeat such breaches.

    Secondly, paragraphs 7 to 9 contain the allegations of direct discrimination. As one would expect, the particulars given under paragraph 6 are repeated. However, the particulars also refer back to paragraphs 6A and 6B. Why they should do so is not apparent. Non-compliance with s 32 of the DD Act or the Standards is not an element of a claim of direct discrimination.

    Thirdly, paragraphs 10 to 12 contain the allegations of indirect discrimination. Again, the particulars given in relation to each of these paragraphs also refer back to paragraphs 6A and 6B. As with the claim of direct discrimination, the claim of indirect discrimination does not depend upon the respondent having breached s 32 of the DD Act or the Standards.

THE FURTHER AMENDED DEFENCE

42    In its Further Amended Defence filed 12 October 2011 (the Amended Defence) the respondent admits that for the purpose of the Standards it is an “operator” of a public transport service, but denies that it is a “provider” of a public transport service. It also denies that the charter services operated by the respondent are public transport services for the purposes of the Standards. To the extent that the respondent may have been, or is, required to comply with the Standards, it says that it relies on s 33.7 of the Standards.

43    The respondent does not admit that it breached s 32 of the DD Act or s 33.1, s 33.2 or Schedule 1 of the Standards. The respondent does not admit any of the applicant’s allegations of direct or indirect discrimination. As to the applicant’s claims of direct and indirect discrimination, the respondent says that it relies upon s 11 and s 29A of the DD Act. In addition, the respondent says it relies upon s 6(3) of the DD Act in further answer to the applicant’s claims of indirect discrimination.

THE DIRECT DISCRIMINATION CLAIMS

Section 5

44    The first question to be decided in relation to the applicant’s claim of direct discrimination concerns s 5 of the Act. Did the respondent “discriminate” against the applicant on the ground of the applicant’s disability? If this question is answered in the affirmative, it will be necessary to determine whether the respondent did so in one or more of the circumstances specified in s 23(a), (b) and (c) and s 24(a) and (b) of the DD Act. In approaching the matter in this way I recognise, of course, that s 5 is an interpretative provision which determines how the word “discriminate” as used in (inter alia) s 23 and s 24 is to be interpreted.

45    The relevant facts are not in dispute. On 14 August 2009 the applicant sought to make a booking which would allow her to travel between Sydney and Canberra on a bus service operated by the respondent. The respondent did not accept the applicant’s booking because it did not have any vehicles equipped with wheelchair access.

46    The respondent did not make, or propose to make, any adjustment for the applicant which would have facilitated travel by the applicant on one of the respondent’s vehicles engaged in Sydney–Canberra services. The most obvious adjustment the respondent could have made was to arrange for a vehicle that was equipped with wheelchair access to be deployed on the Sydney–Canberra service so as to allow the applicant to undertake her journey at or around the time she needed to travel. This was an adjustment that would have permitted the applicant to utilise the respondent’s service just as people without the applicant’s disability were able to do. The only question is whether this was a reasonable adjustment for the purposes of s 5(2) of the DD Act.

47    The respondent did not submit that the deployment of a vehicle equipped with wheelchair access was not a reasonable adjustment. In submissions the respondent merely observed that, although it did not have any vehicles equipped with wheelchair access in August 2009, the position changed significantly during the following year. There is no evidence to indicate why, given such vehicles could be acquired and deployed by the respondent in 2010, they could not have been acquired or deployed in August 2009 or earlier.

48    The adjustment to which I have referred – namely, the deployment of a vehicle equipped with wheelchair access – was a reasonable adjustment for the purposes of s 5(2) of the DD Act which the respondent failed to make for the applicant when she sought to arrange travel between Sydney and Canberra in August 2009. As a result of that failure, the applicant was treated less favourably than other people would have been treated had they sought to travel between Sydney and Canberra using the respondent’s service. In these circumstances, I am satisfied that the respondent discriminated against the applicant on the ground of the applicant’s disability within the meaning of s 5(2) of the DD Act.

Section 23(a)

49    This brings me to s 23(a) of the DD Act. Did the respondent discriminate against the applicant by refusing to allow her 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? For the purposes of the DD Act “premises” includes a vehicle (s 4(1)).

50    It is not disputed that the respondent operated one or more of its vehicles between Sydney and Canberra on the dates the applicant wished to travel. The respondent submitted that the applicant did not want or seek access to any of the respondent’s vehicles because she only ever wanted to travel on a vehicle with wheelchair access and that none of the respondent’s vehicles was so equipped. It was then submitted that since the applicant never sought access to the respondent’s vehicles there could never be a refusal for the purposes of s 23(a). But to approach the matter in this way would be to take an unduly narrow view of what actually occurred.

51    In the present case the applicant sought to make a booking so that she would be given access to one of the respondent’s vehicles in order that she might travel on it between Sydney and Canberra. The respondent refused to take the applicant’s booking because it did not have any wheelchair accessible vehicles. In so doing, the respondent refused the applicant access to its vehicles. This constituted, in my opinion, a refusal on the part of the respondent to allow the applicant access to its vehicles contrary to s 23(a).

Section 23(b)

52    The respondent made a concession that is relevant to the claim based upon s 23(b) of the DD Act. The respondent conceded that:

… based on the evidence in these proceedings, it is more accurate to state that the terms and conditions on which the respondent was willing to provide the fixed-route services on 14 August 2009 was that the applicant was permitted to use the service so long as she did not have a wheelchair or that she not require wheelchair assistance in order to board the fixed-route service …

53    It is apparent that this concession falls short of accepting that the respondent contravened s 23(b). However, it does seem to reflect, at least in general terms, my view as to the way in which s 23(b) applies to the facts of this case. It seems to me that the respondent imposed a tacit condition – with which the applicant could not comply – that she must travel without a wheelchair if she was to utilise the respondent’s services. In my opinion, the requirements of s 23(b) are satisfied in the circumstances of this case.

Section 23(c)

54    The question that arises under s 23(c) is whether the respondent discriminated against the applicant on the ground of her disability in relation to the provision of access to the respondent’s vehicles. The language of s 23(c) is particularly broad. When read with s 5(2) it is directly applicable where there has been a failure by a respondent to make reasonable adjustments which will enable a person with a disability to obtain access to premises that the public or a section of the public is entitled or allowed to enter or use. All that the person must show is that he or she has been discriminated against on the ground of his or her disability (within the meaning of s 5) and that this has occurred in relation to the provision of means of access to premises that the public or a section of the public is entitled to enter or use. In my opinion the requirements of s 23(c) are satisfied in the present case.

Section 24(a)

55    Section 24(a) of the DD Act is contravened by a person who provides services and who discriminates against another person on the ground of the other person’s disability by refusing to provide such services to the person with the disability. In the present case the respondent has discriminated against the applicant on the grounds of her disability and has done so by refusing to provide its services to the applicant so that she could travel between Sydney and Canberra on or about 24 August 2009. In my opinion the requirements of s 24(a) have been satisfied.

Section 24(b)

56    Section 24(b) of the DD Act will be contravened by a person who provides services and who discriminates against another person on the ground of the other person’s disability in the terms or conditions upon which the services are provided to the person with the disability. Section 24(b) does not by its terms extend to a proposed provision of services. In this regard, the language of s 24(b) may be contrasted with that used in s 23(b) and s 23(e).

57    It seems to me that s 24(b) of the DD Act cannot apply in the circumstances of the present case because there never was any provision of services by the respondent to the applicant. In the circumstances, I am not persuaded that there has been any breach by the respondent of s 24(b) of the DD Act.

THE INDIRECT DISCRIMINATION CLAIMS

58    In the present case I have found that the acts of the respondent were acts of direct discrimination. The applicant did not make any submission to me that would explain how the same act of discrimination could at once be both direct and indirect. There is a preponderance of authority in favour of the view that where there is a proven act of direct discrimination founding liability under s 23 or s 24 of the DD Act by operation of s 5, then the same act cannot also found liability under those provisions by operation of s 6: see, for example, Waters v Public Transport Corporation (1991) 173 CLR 349 at 392-393 (Dawson and Toohey JJ), 400-402 (McHugh J), Australian Medical Council v Wilson (1996) 68 FCR 46 at 55 (Heerey J, with whom Black CJ agreed), 74 (Sackville J).

59    Since the applicant has established that the respondent discriminated against her in breach of s 23 and s 24 of the DD Act by operation of s 5, the question of whether the respondent may have, on some different view of the facts, breached the same provisions by operation of s 6, need not be addressed.

UNJUSTIFIABLE HARDSHIP – s 11 and s 29A

60    The respondent indicated in its Amended Defence that it would place reliance upon s 29A of the DD Act. There was no evidence before me to suggest that avoidance of the discrimination by the respondent against the applicant on the ground of her disability would have imposed an unjustifiable hardship upon the respondent. Nor did the respondent place any reliance upon s 29A in final submissions. I am therefore satisfied that the acts of direct discrimination that have been proven were unlawful.

THE STANDARDS

61    The applicant claims that the respondent breached s 32 of the DD Act by not complying with the Standards. In particular, the applicant claims that the respondent breached s 33.1 and s 33.2 of the Standards.

62    There is an issue between the parties as to whether the applicant may raise these claims at all. Before turning to that issue it is necessary to explain how the Standards operate within the relevant statutory scheme.

Background to the Standards

63    The Standards were formulated by the Attorney General pursuant to s 31(1) of the DD Act and came into effect on 23 October 2002.

64    At the time the Standards were formulated s 31(1) of the DD Act was different from s 31(1) in its current form. It relevantly provided:

The Minister may formulate standards, to be known as disability standards, in relation to:

(a)-(c)    …

(d)    the provision of public transportation services and facilities by:

    (i)    the Commonwealth; and

    (ii)    a State; and

    (iii)    a Territory; and

    (iv)    a public authority of the Commonwealth; and

    (v)    an instrumentality of a State; and

    (vi)    a public authority of a Territory; and

    (vii)    any other person

to a person with a disability; …

65    Section 1.5 of the Standards states that the Standards are accompanied by Guidelines, and that passengers, operators and providers need to consult the Guidelines when interpreting the Standards. The parties have placed before me what I was told were the relevant Guidelines which are the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3) (the Guidelines).

66    The purpose of the Standards is “to enable public transport operators and providers to remove discrimination from public transport services” (Standards s 1.2(2)). They apply to “all operators and the conveyances” they use to provide public transport services. They also apply to “providers and supporting premises and infrastructure” (Standards s 1.4(2)).

67    The Standards include a number of relevant definitions. These include:

1.12    Conveyance

    (1)    A conveyance includes any of the following, to the extent that they are used to provide a public transport service:

        (a)    aircraft;

        (b)    buses or coaches;

        (c)    ferries;

        (d)    taxis;

        (e)    trains, trams, light rail, monorails, rack railways;

        (f)    any other rolling stock, vehicle or vessel classified as public transport within its jurisdiction by regulation or administrative action of any Government in Australia.

    (2)    A conveyance does not include the following:

        (a)    charter boats (including water taxis);

        (b)    limousines (including chauffeured hire cars);

        (c)    self-drive rental cars.

…

1.23    Public transport service

    (1)    A public transport service is an enterprise that conveys members of the public by land, water or air.

    (2)    A public transport service includes:

        (a)    community transport conveyances that are funded or subsidised by charity or public money and that offer services to the public; and

        (b)    foreign aircraft and vessels that carry passengers to, from, or in Australia and that offer services to the public.

    (3)    A public transport service does not include a service that provides adventure travel (for example, white water rafting, ballooning or amusement park rides), except to the extent that the service operates to move the public from one location to another distant location.

68    The Standards also define “infrastructure” and “premises” as follows:

1.18    Infrastructure

    (1)    Infrastructure is any structure or facility that is used by passengers in conjunction with travelling on a public transport service.

    (2)    Infrastructure does not include any area beyond immediate boarding points (for example, bus stops, wharves, ranks, rail stations, terminals).

…

1.21    Premises

    (1)    Premises are structures, buildings or attached facilities that an operator provides for passenger use as part of a public transport service.

69    The Standards define “operator” and “provider” as follows:

1.20    Operator

    (1)    An operator is a person or organisation (including the staff of the organisation) that provides a public transport service to the public or to sections of the public.

    (2)    A public transport service may have more than one operator.

…

1.22    Provider

    (1)    A provider is a person or organisation that is responsible for the supply or maintenance of public transport infrastructure.

    (2)    A provider need not be an operator.

70    As previously mentioned, there is an issue on the pleadings as to whether the respondent is a “provider” for the purposes of the Standards. Senior Counsel for the applicant did not address this issue in her submissions. There does not appear to be any evidence to establish that the respondent is a provider of “infrastructure” as that term is defined for the purposes of the Standards.

The substantive requirements

71    Parts 2 to 31 of the Standards outline the requirements of the Standards in relation to public transport. Part 8 of the Standards relates to “Boarding” and includes requirements pertaining to the availability and use of manual or power assisted boarding devices at entrances to conveyances (ss 8.2-8.3). Part 9 of the Standards relates to “Allocated space” for wheelchairs or similar mobility aides and specifies (inter alia) the number of allocated spaces to be provided in buses (s 9.4). Allocated spaces do not need to be provided in coaches if each passenger uses a fixed seat (s 9.8).

72    As is apparent from the definitions to which I have referred, the Standards distinguish between conveyances, premises and infrastructure. The Standards apply to conveyances, premises and infrastructure as indicated in a table below each section. Thus, s 8.2 provides:

8.2    When boarding devices must be provided

    (1)    A manual or power assisted boarding device must be available at any accessible entrance to a conveyance that has:

        (a)    a vertical rise or gap exceeding 12 mm … ; or

        (b)    a horizontal gap exceeding 40 mm … .

        Conveyances

        except dedicated school buses and small aircraft

73    Some sections in the Standards apply to buses but not coaches. Sections 9.4 and 9.8 provide:

9.4    Number of allocated spaces to be provided – buses

    (1)    At least 2 allocated spaces must be provided in each bus with more than 32 fixed seats.

    (2)    At least one allocated space must be provided in each bus with less than 33 fixed seats.

    (3)    An allocated space is additional to the fixed seating capacity.

    Conveyances

    •    Buses

        except dedicated school buses

…

9.8    Allocated spaces in aircraft and coaches

    An operator does not have to provide allocated space in an aircraft or coach if each passenger uses a fixed seat in the aircraft or coach.

    Conveyances

    •    Aircraft

    •    Coaches

Target dates

74    Part 32 of the Standards is concerned with their application on and after the day they came into effect (23 October 2002). Sections 32.1 and 32.2 relevantly provide:

32.1    Effect and application of these Standards

    These Standards apply, on and from the date they come into effect under section 31 of the Disability Discrimination Act 1992, to:

    (a)    public transport services provided with:

        (i)    newly constructed premises or infrastructure; or

        (ii)    conveyances entering service after these Standards come into effect; or

        (iii)    premises, infrastructure or conveyances that have undergone substantial refurbishment or alteration; or

        (iv)    additional or replacement equipment in premises and infrastructure or on conveyances; and

    (b)    new or revised ancillary services that are provided as an adjunct to the public transport operation; and

    (c)    new or updated information provided to the public.

32.2    Manufacture to be completed before target dates

    In all cases, manufacture or other work that is required to ensure compliance with these Standards is to be completed before the target dates set out in Schedule 1.

75    Part 33 of the Standards is headed “Compliance”. Sections 33.1 and 33.2 provide:

33.1    Date for compliance with these Standards — new conveyances, premises and infrastructure

    Operators and providers must comply with the specified sections of these Standards for all new premises, infrastructure and conveyances brought into use for public transport service on and from the date these Standards come into effect under section 31 of the Disability Discrimination Act 1992.

33.2    Date for compliance with these Standards — conveyances, premises and infrastructure in use at target dates

    Operators and providers must comply with the specified sections of these Standards for premises, infrastructure and conveyances that are still in use for public transport at the target dates specified in Schedule 1.

76    Schedule 1 to the Standards is headed “Target dates for compliance”. It specifies various requirements that must be met by operators and providers in respect of a number of target dates ranging from 31 December 2007 to 31 December 2032. By 31 December 2007, operators and providers are required to comply with the relevant Standards “by 25% of each type of service” in relation to a range of particular requirements including, relevantly, “Boarding” and “Allocated space”. For the target date of 31 December 2012 the relevant percentage is 55%. For the target date of 31 December 2017 the relevant percentage is 90%.

Unjustifiable hardship

77    Section 33.7 of the Standards is concerned with unjustifiable hardship. It provides:

33.7    Exceptional cases — unjustifiable hardship

    (1)    It is not unlawful to fail to comply with a requirement of these Standards if, and to the extent that, compliance would impose unjustifiable hardship on any person or organisation.

    (2)    However, compliance is required to the maximum extent not involving unjustifiable hardship.

    (3)    In determining whether compliance with a requirement of these Standards would involve unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including the following:

        (a)    any additional capital, operating or other costs, or loss of revenue, that would be directly incurred by, or reasonably likely to result from, compliance with the relevant requirement of these Standards;

        (b)    any reductions in capital, operating or other costs, or increases in revenue, that would be directly achieved by, or reasonably likely to result from, compliance with a relevant requirement of these Standards;

        (c)    the extent to which the service concerned operates, or is required to operate, on a commercial or cost-recovery basis;

        (d)    the extent to which the service concerned is provided by or on behalf of a public authority for public purposes;

        (e)    the financial position of a person or organisation required to comply with these Standards;

        (f)    any effect that compliance with the relevant requirement of these Standards is reasonably likely to have on the financial viability of a person or organisation required to comply, or on the provision of the service, or feature of service, concerned;

        (g)    any exceptional operational, technical or geographic factors, including at a local or regional level, affecting a person or organisation’s ability to comply with a relevant requirement of these Standards;

        (h)    financial, staffing, technical, information and other resources reasonably available to a person or organisation required to comply with these Standards, including any grants, tax concessions, subsidies or other external assistance provided or available;

        (i)    benefits reasonably likely to accrue from compliance with relevant requirements of these Standards, including benefits to people with disabilities, to other passengers or to other persons concerned, or detriment likely to result from non-compliance;

        (j)    detriment reasonably likely to be suffered by an operator, provider, passenger or other person or organisation concerned, including in relation to equality of amenity, availability, comfort, convenience, dignity, price and safety of services or effectiveness and efficiency of operation if compliance with relevant provisions of these Standards is required;

        (k)    if detriment under paragraph (j) involves loss of heritage values — the extent to which relevant heritage value or features of the conveyance, building or other item concerned are essential, and to what extent incidental, to the transport service provided;

        (l)    whether compliance with a requirement of these Standards may reasonably be achieved (including by means of equivalent access as provided for in sections 33.3 to 33.5) by less onerous means than those objected to by a person or organisation as imposing unjustifiable hardship;

        (m)    any evidence regarding efforts made in good faith by a person or organisation concerned to comply with the relevant requirements of these Standards;

        (n)    if a person or organisation concerned has given an action plan to the Commission under section 64 of the Disability Discrimination Act 1992 – the terms of that action plan and any evidence regarding its implementation;

        (o)    the nature and results of any processes of consultation, including at local, regional, State, national, international, industry or other level, involving, or on behalf of, an operator concerned, any infrastructure providers as relevant, and people with a disability, regarding means of achieving compliance with a relevant requirement of these Standards and including in relation to the factors listed in this section;

        (p)    if a person or organisation seeks a longer period to comply with these Standards, or a requirement of these Standards, than is permitted by the preceding sections on Adoption and Compliance – whether the additional time sought is reasonable, including by reference to the factors set out in paragraphs (a) to (o) above, and what undertakings the person or organisation concerned has made or is prepared to make in this respect.

    (4)    If a substantial issue of unjustifiable hardship is raised having regard to the factors listed in paragraphs (3) (a) to (p), the following additional factors are to be considered:

        (a)    the extent to which substantially equal access to public transport services (including in relation to equality of independence, amenity, availability, comfort, convenience, dignity, price and safety) is or may be provided otherwise than by compliance with these Standards;

        (b)    any measures undertaken, or to be undertaken by, on behalf of, or in association with, a person or organisation concerned to ensure such access.

    (5)    For these Standards:

        unjustifiable hardship is to be interpreted and applied having due regard to the scope and objects of the Disability Discrimination Act 1992 (in particular the object of removing discrimination as far as possible) and the rights and interests of all relevant parties.

CONSIDERATION

78    As I have explained, the applicant seeks relief in respect of breaches of the Standards that she contends occurred before and after the termination of the applicant’s complaint on 24 May 2010. That particular feature of her claim gives rise to one of the central disputes in the case, namely, whether it is open to the applicant to maintain her claim to relief based upon breaches of the Standards that are alleged to have occurred after termination of the applicant’s complaint. Another area of dispute concerns the scope of the relief sought by the applicant which extends to the respondent’s entire fleet of vehicles including those that are used for charter services. The respondent contends that the Standards do not apply to its charter operations.

Section 46PO

79    I have previously set out s 46PO of the AHRC Act. The effect of s 46PO is now well settled. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at [37]-[39] Katz J said:

37    It appears to me that s 46PO(3) of the [Act] is only incidentally concerned with those allegations of fact which can be made in an application under s 46PO(1) of the [Act]; it is primarily concerned, not with such allegations, but rather with the legal character which those allegations of fact can be claimed to bear. In the two situations with which it deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.

38    Paragraph (a) of s 46PO(3) of the [Act] proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.

39    Paragraph (b) of s 46PO(3) of the [Act], on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.

80    Katz J also favoured a construction of s 46PO(3) that does not permit the applicant to rely on acts of discrimination which occur after a complaint has been lodged with the Commission. His Honour’s decision has been followed by various judges of this Court including Tracey J in Crvenkovic v La Trobe University [2009] FCA 374. In his judgment Tracey J (at [8]) referred to some relevant decisions in which Charles v Fuji Xerox Australia Pty Ltd was applied and (at [11]) noted that he agreed with Katz J’s reasoning.

81    In Travers v New South Wales [2000] FCA 1565 at [8] Lehane J suggested that some degree of flexibility was provided for by the terms of s 46PO(3). However, Lehane J did not suggest that the Court had jurisdiction to determine a claim in respect of an act of unlawful discrimination which is alleged to have taken place after termination of a complaint.

82    The Full Court in Grigor-Scott v Jones (2008) 168 FCR 450 at [18]-[19] explained the legislative intention underlying s 46PO as follows:

18    Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination. The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made. It only lies in respect of the subject matter of the complaint to the Commission. Importantly, for the purpose of this appeal, it only lies against the respondents to the terminated complaint. Also importantly, the application commencing the proceeding upon the cause of action must be brought within 28 days after the date of issue of the s 46PH(2) notice, or such later time as the Court allows.

19    The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).

83    In the present case it is not suggested that the scope of the applicant’s complaint was expanded between the date it was lodged and the date it was terminated. It is necessary, therefore, to focus upon the terms of the complaint as lodged with the Commission on 20 August 2009.

84    In the complaint the applicant stated that she needed to go to Canberra at the end of August for work, that she asked about a wheelchair accessible bus to Canberra and back, and that she was told that the respondent had no wheelchair accessible buses in the fleet. In substance, her complaint was that the respondent would not accept a booking that would allow her to travel on the respondent’s service between Sydney and Canberra at the end of August 2009. This was the act of alleged unlawful discrimination about which the applicant complained and which is now the subject of the findings set out at [49]-[55].

Breach of the Standards

85    The respondent was in breach of the Standards in August 2009. Were this not so, the respondent might have been able to accept a booking from the applicant allowing her to travel using the respondent’s service between Sydney and Canberra as she had planned. But what is the legal significance of the respondent’s breach of the Standards to the issues in this proceeding?

86    Senior Counsel for the applicant submitted that the applicant was at all material times in and after August 2009 a person aggrieved by the respondent’s non-compliance with the Standards. In my view this submission is based upon a misconception as to the scope of s 46P and s 46PO(1) of the AHRC Act. Non-compliance with the Standards does not of itself provide a sufficient basis for a person to lodge a complaint under s 46P or to commence a proceeding under s 46PO(1). This is because non-compliance with the Standards does not of itself constitute unlawful discrimination.

87    The significance of the respondent’s breach of the Standards is apparent, in part, from s 34 of the DD Act. Had the respondent been in compliance with the Standards as at August 2009 it would not be liable to the applicant for the contraventions of s 23 and s 24 of the DD Act she alleges against it. In the present case the respondent did not rely upon s 34 of the DD Act.

88    Breach of the Standards can also have an evidentiary significance in a proceeding involving a complaint of unlawful discrimination. In this case, the failure of the respondent to comply with the Standards as they applied to its fixed route service between Sydney and Canberra as at August 2009 made it almost impossible for the respondent to resist the applicant’s claim of unlawful discrimination.

RELIEF

89    The complaint lodged by the applicant under s 46P indicated that the applicant sought an outcome whereby the respondent would be required to comply with the Standards. I do not read the applicant’s complaint as seeking anything less than full compliance by the respondent with the Standards. I therefore do not accept the respondent’s submission that the applicant was not entitled to seek orders requiring the respondent to comply with the Standards in relation to the entirety of its operations. None of that is to say that the applicant is entitled to obtain any of the relief claimed. There are discretionary factors to be considered in deciding whether to grant or refuse any relief in a proceeding under s 46PO(4) of the AHRC Act.

The respondent’s charter services

90    The applicant seeks relief which, if granted, would compel the respondent to comply with the Standards not only in relation to its fixed route services operating between Sydney and Canberra but also in relation to all of the respondent’s other fixed route services and the respondent’s charter services.

91    The question whether the Standards apply to the respondent’s charter services depends upon whether they constitute a “public transport service” as that expression is defined in s 1.23 of the Standards. It was submitted by Senior Counsel for the respondent that the Court had no power to make any orders in relation to the respondent’s charter services because they are not public transport services for the purpose of the Standards.

92    A public transport service is defined in s 1.23 as an enterprise that conveys members of the public. Adopting a literal interpretation of the definition, a public transport service is an enterprise that provides a type of service. However, the definition must be interpreted in its proper context. The preferable view of s 1.23 is that it defines a public transport service as a type of service that is provided by an enterprise rather than as an enterprise that provides a type of service. This interpretation is consistent with s 31(1) of the DD Act as it stood when the Standards were formulated. Section 31(1) allowed the Minister to formulate the Standards relating to the provision of public transportation services.

93    There are two other reasons why the definition of public transport service should be understood as referring to a service provided by an organisation rather than an organisation that provides a service.

94    First, this interpretation of s 1.23 accommodates the language used in s 1.20(1) which defines an “operator” as “a person or organisation … that provides a public transport service …”. Thus, the operator is not defined to be the person or organisation that conducts the relevant enterprise but as the person or organisation that provides the relevant service.

95    Secondly, the Standards frequently refer to operators or providers and the services or infrastructure they provide. For example, s 32.1 specifies when the Standards apply, and does so, in the case of services, by reference to the date upon which relevant services are provided.

96    One consequence of this interpretation of s 1.23 is that the Standards apply not to all vehicles used in the respondent’s enterprise, but only to those vehicles used by the respondent to provide the relevant service, namely the carriage of members of the public.

97    It is the persons conveyed who must be members of the public for the definition in s 1.23 to apply. Not everyone is a member of the public for the purposes of the definition. In determining whether the persons conveyed in the respondent’s vehicles are members of the public it is necessary to consider what it is about those persons that led to them being conveyed. They will only be members of the public for the purposes of the definition if they are conveyed in the respondent’s vehicles as members of the public.

98    If a bus is chartered to a sporting club so that the members of the club might be conveyed to a sporting event, then the members of the club will be conveyed not as members of the public but as members of the club. It is their membership of the club which entitles them to ride in the bus. Of course, the position would be different if members of the public were also permitted to ride in the bus. In that situation the respondent would be conveying members of the public for the purposes of the Standards.

99    But it does not follow that every charter arrangement entered into by the respondent will be for the conveyance of persons who are not members of the public for the purposes of the Standards. If a provider of transport services to the public chartered a bus from the respondent to convey members of the public due to the provider’s lack of capacity then there is no reason to think that the respondent would not be conveying members of the public merely because it did so pursuant to a charter arrangement.

100    It was submitted on behalf of the applicant and the Disability Discrimination Commissioner that the definition of “public transport service” should be given a liberal interpretation. In this regard, they submitted that a broad interpretation of the words used would serve to promote the objects of the DD Act.

101    I accept the submission that the Standards should be liberally construed. However, the construction of the relevant definition contended for by the applicant and the Commissioner is founded upon the proposition that every person who is conveyed in the respondent’s vehicles will be a member of the public. In my view, this construction ignores words that impose an important limitation upon the area in which the Standards were intended to apply. Of course, as the Commissioner submitted, even if the Standards do not apply to charter services, ss 23 and 24 of the DD Act still apply.

102    The question whether any charter services provided by the respondent constitute a public transport service ultimately depends upon the particular charters that are undertaken. I think it may be inferred from the evidence that many of the persons conveyed in the course of the respondent’s charter operations are conveyed as members of various clubs or associations or travel or tour groups and not as members of the public. These persons are conveyed by the respondent because of some particular association or relationship they have with the charterer.

Discretion

103    Section 46PO(4) of the AHRC Act provides that, if the Court is satisfied that there has been unlawful discrimination by a respondent, then it may make such orders as it thinks fit. The discretion conferred on the Court under s 46PO(4) is a broad one. There are no mandatory criteria specified governing the exercise of the discretion. In this sense the discretion is at large. Of course, the discretion must be exercised judicially and in light of the objects and purposes of the AHRC Act and, in the present case, the DD Act.

104    The scope of the applicant’s complaint to the Commission is a significant matter that is relevant not merely to the jurisdiction of the Court under s 46PO but also to the scope of the relief that the Court might grant or refuse in the exercise of its discretion. The applicant never sought to charter a bus or coach from the respondent nor did she seek to ride on a bus or coach that had been chartered by someone else. Even if I was satisfied that the Standards applied to all of the respondent’s charter operations, I would not grant any relief directed at such operations.

105    In my view, the relief to be granted to the applicant should be limited to that which is reasonably necessary to ensure that the unlawful discrimination which the applicant has established took place is not repeated by the respondent. I think this can be achieved by making a declaration in an appropriate form that makes it clear that the respondent has unlawfully discriminated against the applicant together with an order requiring that the respondent comply with the Standards in specified respects. I do not think it is necessary or appropriate to make declarations or orders in the general terms sought by the applicant in the amended application.

106    My provisional views in relation to the appropriate form of order are as follows. The order requiring compliance with the Standards should be limited to the respondent’s fixed route services operating between Sydney and Canberra. It should also specify the particular provisions of the Standards with which the applicant will be bound to comply. In this regard, the order should require compliance with Part 8 and Part 9 of the Standards. The order should be expressed to operate for a period of two years from the date it is made.

107    The suggestion that the order be expressed to operate for two years only is not intended to imply that the respondent will not be bound by the Standards beyond that time. The suggested two year limitation reflects the view that it may not be appropriate to make an order that operates indefinitely thereby putting the respondent at risk of being in contempt of Court for any breach of the Standards that it may be guilty of any time into the future.

EXPERT EVIDENCE

108    Each party called expert evidence concerning the cost to the respondent if it was required to make modifications to its fleet of vehicles to ensure compliance with the Standards based upon various target dates specified in Sch 1. The expert evidence relied upon by the respondent could not provide any basis for finding that the respondent was not in breach of the Standards as at August 2009. Instead the expert evidence was relied upon by the respondent to show that it would impose “an unjustifiable hardship” upon the respondent within the meaning of s 33.7 of the Standards if it was ordered to comply with the Standards in relation to vehicles used in both its fixed route operations and its charter operations. Given the conclusions I have reached in relation to the application of the Standards to charter operations and the scope of the relief which should be awarded to the applicant, the question of whether or not it would impose an unjustifiable hardship upon the respondent to require it to comply with the Standards if they had a wider application need not be decided.

ORDERS

109    I will direct the parties to file short minutes setting out the declarations and orders (including in relation to costs) that they submit are appropriate in light of my reasons.

Associate:

Dated:    14 March 2013