Commission Submission - Vijayakumar v Qantas

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AT SYDNEY                                                             

File No SYG 1812 of 2007

BETWEEN

TONY MAHESPARAM VIJAYAKUMAR
Applicant

and

QANTAS AIRWAYS LTD
Respondent

SUBMISSIONS OF THE ACTING DISABILITY DISCRIMINATION COMMISSIONER

Overview

1. These submissions have been prepared on behalf of the Acting Disability Discrimination Commissioner (the Commissioner). They represent the written submissions that the Commissioner would make if given leave to appear as amicus curiae in this matter.
2. The Commissioner’s proposed submissions address the contentions advanced by the respondent in paragraph 4(a) of the respondent’s Response in a Case. Those contentions are to the following effect:
   
   1. the Disability Discrimination Act 1992 (Cth) (the DD Act) does not operate with respect to alleged conduct in India;
   2. accordingly, the Court has no jurisdiction with respect to conduct alleged to have occurred in India.
3. The Commissioner submits that the matters arising from the applicant’s points of claim and proposed amended application are within the jurisdiction of this Court. This is because the communication and imposition of the alleged discriminatory terms occurred wholly in Australia.
4. Having considered the submissions filed by the applicant, the Commissioner no longer seeks to be heard on the issues regarding s46PO(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) raised by paragraph 4(b) of the Response in a Case.

Scheme and structure of the DD Act

5. The objects of the DD Act are set out in s3 in the following terms:  
   
   1. to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
      
      1. work, accommodation, education, access to premises, clubs and sport; and
      2. the provision of goods, facilities, services and land; and
      3. existing laws; and
      4. the administration of Commonwealth laws and programs; and
   2. to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
   3. to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
6. Part I of the Act (sections 5-9) defines what it means to “discriminate” for the purposes of the DD Act (see definition of “discriminate” in s4). In general terms, those provisions provide for the following species of discrimination:
   
   1. “direct” discrimination (section 5);
   2. “indirect” discrimination (section 6);
   3. discrimination associated with the less favourable treatment of an aggrieved person because of the fact that that person uses a palliative or therapeutic device or an auxiliary aid (section 7);
   4. discrimination associated with the less favourable treatment of an aggrieved person because of the fact that that person is accompanied by an interpreter, reader, assistant or carer (section 8); and
   5. discrimination involving assistance animals (section 9).
7. Part II, Divisions 1-2 of the DD Act then set out the circumstances or areas in which discrimination on one or more of those various grounds will be unlawful.1 Those relevantly include:
   
   1. access to and use of premises (section 23); and
   2. provision of goods or services (section 24).
8. Part II, Division 2 also includes provisions regarding “disability standards” (ss31-34). Such standards may be made by the Minister in relation to various matters, including “the provision of public transportation services and facilities by…any other person…to a person with a disability”(s31(1)(d)). The Disability Standards for Accessible Public Transport 2002 (Cth) (“DSAPT’) referred to by the applicant in paragraph 12 of his points of claim were made pursuant to that provision. Section 32 of the DD Act provides that a contravention of the standards is unlawful.

Jurisdiction of this Court

9. A complaint may be made to the Human Rights and Equal Opportunity Commission (HREOC) of “unlawful discrimination”: s46P(1) of the HREOC Act. ‘Unlawful discrimination’ is defined in s3 of the HREOC Act as follows:
   

   "unlawful discrimination" means any acts, omissions or practices that are unlawful under…[p]art 2 of the Disability Discrimination Act 1992 …and includes any conduct that is an offence under… Division 4 of Part 2 of the Disability Discrimination Act 1992…

10. Sections 23, 24 and 32 of the DD Act all fall within Part 2 of the DDA. Accordingly, a breach of any one of these sections constitutes an act of ‘unlawful discrimination’.
11. Upon a complaint of unlawful discrimination being terminated by HREOC, the complainant may make an application to this Court “alleging unlawful discrimination by one or more respondents to the terminated complaint”.2  Jurisdiction to hear such proceedings is conferred upon the Court by s10 of the Federal Magistrate’s Court Act 1999 (Cth) and s49B of the HREOC Act.
12. The Court’s powers to grant relevant relief under s46PO(4) of the HREOC Act are conditioned upon the Court being satisfied that there has been “unlawful discrimination by any respondent”.3
13. In other words, the concept of ‘unlawful discrimination’ is the ‘hinge’ about which the operation of the provisions conferring jurisdiction on this Court turns.4 It is therefore necessary to carefully identify the act of unlawful discrimination that is alleged. Clearly, where that act is alleged to have taken place within Australia, no question arises as to extraterritorial reach of the legislation.5

Sections 23 and 24 of the DD Act

14. The Commissioner submits that sections 23(1) and 24(1) are cast broadly, so as to capture the full spectrum of acts of discrimination within those areas of public life. That is, s23(1) covers the various forms of discrimination likely to arise in relation to accessing and using premises. Likewise, s24(1) is structured to capture discrimination in all phases of the provision of, relevantly, services, including the refusal of the service, the manner in which the service is provided and the terms or conditions on which the service is provided.
15. In paragraphs 10 and 11 of the points of claim, the applicant alleges that the respondent unlawfully discriminated against him on the ground of his disability in:
    
    1. the terms or conditions upon which the respondent was prepared to allow access to its premises (noting that the term premises is defined in s4 of the DD Act so as to include an aircraft). Discrimination in such circumstances is made unlawful by s23(1)(b) of the DD Act; and
    2. the terms or conditions on which the respondent provided the applicant with services. Discrimination in such circumstances is made unlawful by s24(1)(b) of the DD Act.
16. In decisions of this Court and the Federal Court dealing with ss 23(1)(b) and 24(1)(b) of the DD Act, it has been held that those provisions will be contravened upon communication to, or imposition upon, the aggrieved person of the discriminatory terms or conditions.
17. For example, in Haar v Maldon Nominees Pty Limited6 the applicant used a guide dog. She purchased a meal from the respondent (which operated a McDonalds restaurant) and sat in a partitioned party area used by children. After finishing her meal, she was told that on future visits she should sit in an outside area rather than in the party area. McInnes FM held that the respondent’s comments constituted an act of discrimination as defined by s9 of the DD Act. He further found  that the respondent had contravened s24(1)(b), stating:
    

    This is not a case where the respondents have refused to allow the applicant access to or use of the premises or indeed required her to leave the premises as the agreed evidence is that the applicant had already completed her meal and was about to leave. The real issue is whether the words uttered can be interpreted as imposing terms and conditions which would constitute unlawful discrimination.
    
    In my opinion the imposition of terms and conditions for the purpose of s 23 of the DDA does not have to be in writing or in precise language. So long as the words uttered are capable of meaning and were understood to mean that the applicant would only be allowed access to the premises in a restricted manner.7

18. Haar was cited with approval by Collier J in Forest v Queensland Health.8 That matter concerned an applicant who used an assistance animal to alleviate a psychiatric disability. The respondent had a policy which prohibited people entering its premises accompanied by an animal unless the animal was a guide dog or a hearing dog or unless the animal had been assessed by the respondent as having training and hygiene standards acceptable to the respondent. The applicant had been advised of that policy. Her Honour found that the respondent’s conduct constituted discrimination as defined by ss6 and 9(1)(f) of the DD Act. She went on to find that the respondent had contravened, inter alia, ss23(1)(b) and 24(1)(b). In relation to s23(1)(b) her Honor observed:
    

    I have also considered whether s 23(1)(b) is relevant in light of the written communications between the applicant and Cairns Base Hospital and Smithfield Community Health Centre, where the hospital and the centre informed the applicant of the respondent’s policy of not allowing animals (other than guide dogs) into the hospital without a prior assessment by the respondent. Although the respondent ultimately refused to allow the applicant access to its premises with his dogs so as to enliven s 23(1)(a), in my view s 23(1)(b) is also relevant because in discriminating against the applicant, the respondent had imposed terms or conditions upon which it was prepared to allow the applicant access to its premises.9

19.  In relation to s24(1)(b), her Honour observed:
    

    …the hospital informed him in writing that it was not prepared to provide him with services in the presence of his dog except on its terms. Accordingly, I also find that the respondent acted … in breach of s 24(1)(b) in relation to its communications to the applicant as to the terms and conditions on which the applicant was able to attend the hospital with his assistance animal to receive services.10

20. Under the approach taken in Haar and Forest, a contravention of ss23(1)(b) and 24(1)(b) will be complete upon the communication to, or imposition upon, the applicant of the relevant discriminatory terms or conditions. It is unnecessary to demonstrate, in addition, that the respondent acted in accordance with those terms or conditions in providing access or services.
21. A similar approach may be seen in Turner v State Transit Authority & Anor [2004] NSWADT 89, a decision of the New South Wales Administrative Decisions Tribunal. That matter concerned a transgender person who complained of discrimination in relation to comments made by a bus driver when she boarded the bus. In relation to the s38M(b) of the Anti-Discrimination Act 1977 (NSW) (which was in materially identical terms to s24(1)(b) of the DDA) the Tribunal said:
    

    Section 38M(b) prohibits service providers from placing special, discriminatory conditions on their provision of services to transgender persons.  In short, it seems to us that the prohibition relates to the terms and conditions on which services are offered to transgender persons… Critically, the terms on which a service is provided are, unless later varied by agreement, settled before the service is provided.  What happens after that is a matter of performance of the contract.  In other words, it relates to the manner in which the service is actually provided (emphasis added)11

22. The determination of whether the relevant communication or imposition of discriminatory terms occurred within Australia will depend upon a close analysis of the facts. In Haar and Forest, there was no dispute that the relevant communication of the discriminatory terms (and therefore the act of discrimination) occurred within the jurisdiction.
23. In the present case, the alleged discriminatory terms are contained in the terms of the return airline ticket to India. There does not appear to be any controversy that:
    
    1. Both parties entered the relevant contract in Australia;
    2. Upon entering the contract, both parties immediately became bound by the terms of that contract, including the alleged discriminatory terms; and
    3. The terms of the contract were not subsequently varied by later agreement.
24. The Commissioner submits that, on the above facts alone, the alleged communication and/or imposition of the discriminatory terms occurred wholly in Australia so as to trigger the operation of ss 23(1)(b) and 24(1)(b).
25. The fact that the implementation of those terms may have also given rise to separate allegations of discrimination at some later time (potentially outside Australia) does not detract from the fact that an act of discrimination contemplated by ss23(1)(b) and 24(1)(b) occurred at the point of entering the contract. Such later acts in implementing the terms of the contract are matters dealt with separately by ss23(1)(a) and 24(1)(c). Importantly, however, the Court’s jurisdiction under ss23(1)(b) and 24(1)(b) is not contingent on the alleged discriminatory terms being implemented (or proposed to be implemented) in the jurisdiction, provided that those terms are communicated or imposed within the jurisdiction.
26. The above approach to the construction of ss 23(1)(b) and 24(1)(b) is supported by the following matters:
    
    1. Section 23(1)(b) is expressed so as to encompass the imposition of terms or conditions prior to allowing access – “the terms or conditions upon which the [alleged discriminator] is prepared to allow the [alleged victim] access to…any such premises” (emphasis added);
    2. Similarly, section 24(1)(b) should be given a prospective operation,  particularly in light of Parliament’s apparent intention in dealing separately with the manner in which services are provided (s24(1)(c)).12
    3. That intention may also be seen in the explanatory memorandum to the bill which became the DD Act, which stated (in relation to s24):
       

       This provision makes it unlawful for someone who provides goods, services and facilities to discriminate against a person or their relatives or associates on the basis of the person's disability …by the terms and conditions on which those goods, services and facilities are offered (emphasis added).

    4. That intention is also consistent with the comments of McHugh J in Waters v Public Transport Corporation13in the context of the separate (but related) question as to whether there had been an imposition of a requirement or condition for the purposes of the definition of indirect discrimination.14 His Honour there accepted that the imposition of such a requirement or condition may precede the provision of the service:
       

       In the context of providing goods or services, a person should be regarded as imposing a requirement or condition when that person intimates, expressly or inferentially, that some stipulated or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed.15

    5. It is inherently unlikely that Parliament intended that people with disabilities would need to suffer the actual application of discriminatory terms or conditions in order to make a claim under federal discrimination legislation. Such a “human guinea pig” approach would be incompatible with the rights of people with disabilities to respect for their human dignity.16 It would also fail to further the object of the DD Act in eliminating as far as possible discrimination on the ground of disability.17
    6. As remedial legislation with a protective purpose, the DD Act should be construed broadly in the case of any ambiguity.18
    7. Section 12(13) of the DD Act contemplates that discrimination in Australia may involve matters outside Australia:
       

       The limited application provisions [the term “limited application provisions” is defined to include ss23 and 24] have effect in relation to discrimination within Australia involving persons or things, or matters arising outside Australia (emphasis added – see further below the Commissioner’s submissions regarding s12).

27. Of course, this case turns on its facts and more difficult issues of jurisdiction may well arise in other matters with an international dimension -  for example, where a foreign service-provider offers a service for sale via the internet. In such circumstances, the Court would need to consider whether the relevant transaction or circumstance is one to which Parliament intended that the DD Act would apply.19The resolution of that question may require an assessment of whether there is a sufficient connection between Australia and the circumstances giving rise to the alleged discrimination so as to attract the operation of the DD Act.20However, the Commissioner submits that it is not necessary to resolve such issues in the present case, given that the relevant communication and imposition of the alleged discriminatory terms occurred wholly in Australia.

Inconsistent decision of the Equal Opportunity Tribunal of Western Australia

28. The Commissioner notes the decision of the Equal Opportunity Tribunal of Western Australia in Gallaher v Thai Airways International Public Company Ltd.21 Those proceedings related to the respondent’s refusal to accommodate the applicant’s need for medical oxygen for the duration of an international flight at high altitude. The applicant sought to invoke ss66J and 66K of the Equal Opportunity Act 1984 (WA), which are in materially identical terms to ss23 and 24 of the DD Act. In determining that the Tribunal lacked jurisdiction, one of the reasons advanced by President Giles was that there was insufficient connection between the alleged discriminatory act and Western Australia:
    

    In my view, the focus of the legislation is on the actual provision of the allegedly discriminatory service, not the arrangements made for the provision of these things. Upon this basis then, my view is that the Equal Opportunity Act 1984 (WA) does not bind an allegedly discriminatory travel service which is mostly to take place outside Western Australia.22

29. The above comments (which are not binding upon this Court) are, in the Commissioner’s submission, plainly wrong and should not be followed.
30. In reaching the above conclusion, the President of the Equal Opportunity Tribunal failed to engage with the claim based upon the proscription of discrimination in access to premises (s66J) and her reasons appear to be confined to the proscription of discrimination in relation to goods and services (s66K). Her reasoning regarding that provision appears to overlook the fact that it (like s24 of the DD Act) applies to three discrete areas: refusal of a service, the terms and conditions on which a service is provided and the manner in which the service is provided. Having regard to Parliament’s apparent intention in making distinct provision for each of those matters, it is simply incorrect to state that the “focus of the legislation is on the actual provision of the allegedly discriminatory service”.23
31. Certainly the relevant sections prohibiting discrimination in the manner in which services are provided (ie s24(1)(c) of the DD Act and s66K(1)(c) of the Equal Opportunity Act 1984 (WA)) are directed to the actual provision of the service. However, as Haar and Forest demonstrate, a contravention of s24(1)(b) will be made out upon the communication to, or imposition upon, the applicant of the relevant terms or conditions.

Transport standards

32. In paragraph 12 of his points of claim (and in his application as proposed to be amended) the applicant also alleges that the respondent has contravened clause 30.1 of the DSAPT, which is in the following terms:
    

    (1)   Disability aids (for example, equipment and apparatus including mobility, technical and medical aids) are to be in addition to normal baggage allowances.
    (2)   If possible, disability aids are to be treated in the same way as cabin or accompanied baggage.

33. As noted above, a contravention of the standards (which is prohibited by s32 of the DD Act) is included in the definition of unlawful discrimination. As such, the DD Act and the HREOC Act create statutory rights in favour of a person who is aggrieved by a contravention of the standards.24
34. The reference in clause 30.1(1) to “baggage allowances” encompasses the prior specification of such allowances in the terms and conditions upon which a “public transport service” (see definition in clause 1.23) is offered by an “operator” (see definition in clause 1.20).
35. Assuming the respondent was required to comply with that obligation at the relevant times (as to which, see clauses 33.1 and 33.2 of the DSAPT), a failure by the respondent to apply the specifications in clause 30.1(1) to the terms and conditions of the relevant transport service will involve a contravention of clause 30.1(1).
36. A contravention of that nature is alleged by the applicant in para 12.5 of his points of claim. Again, the unlawful discrimination alleged has taken place entirely within Australian territory, meaning no issue of extra-territoriality arises.

Section 12 of the DD Act

37. Of course, it is also necessary that ss23, 24 and 32 of the DD Act “have effect” as provided for by s12 of the DD Act (see particularly s12(4) and the definition of “limited application provisions” in s12(1)).
38. The applicant apparently relies upon ss12(9), (10) and (12) as giving effect to ss 23, 24 and 32.25  Acknowledging the difficulties posed by the decision in Brannigan v Commonwealth,26 the applicant also contends that s12(12) (and possibly 12(9) and 12(10)) operate to give extra-territorial effect to the DD Act.27
39. However, the Commissioner submits that it is unnecessary to resolve that issue because (for the reasons given above) no issue of extra-territoriality arises where the unlawful discrimination identified in the points of claim is alleged to have taken place within Australian territory.

Conclusion

40. For the reasons given above, the Commissioner submits that this Court has jurisdiction in relation to the matters arising from the applicant’s points of claim and proposed amended application.

22 February 2008

Craig Lenehan
Counsel for the Acting Disability Discrimination Commissioner
St James Hall, Sydney
(02) 8257 2540

Brook Hely
Solicitor for the Acting Disability Discrimination Commissioner
133 Castlereagh Street, Sydney
(02) 9284 9783