Decline/termination decisions: Goods, services and facilities
Summaries of decisions by Disability Discrimination Commissioner or delegate to decline complaints, and of the President of HREOC or delegate reviewing such decisions; or (from 13 April 2000) decisions by the President or delegate to terminate complaints. Last updated: 19 April 2000
Requirement for certificate of fitness to drive not unlawful
A man complained that the motor traffic authority in his State had discriminated against him by requiring him to provide a certificate from a psychiatrist of his fitness to drive before it would provide him with a licence, although he had already provided a certificate from his generl practitioner. The President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint as not involving an unlawful act. In her view the requirement for a certificate as requested was not unreasonable having regard to the responsibility of the authority to ensure the safety of all road users. (17 December 1999).
Refusal to serve alcohol without meal not unlawful discrimination by restaurant
A woman who had had surgery for cancer and could only take food through a tube complained that she had been discriminated against by a restaurant which refused to serve her alcohol because she had not purchased a meal. The Commissioner declined the complaint on the basis that no unlawful discrimination had occurred. He noted that no direct discrimination had occurred, since anyone who had not purchased a meal would be refused alcohol, with or without a disability. Regarding indirect discrimination, he noted that the condition or requirement imposed was to purchase rather than consume a meal, and that the complainant could have complied with this albeit with some expense. In any event he did not find the condition unreasonable since the restaurant was not authorised to serve alcohol without a meal and could have been subject to penalties under State law had it done so (10 February 1999).
Clients and support workers in materially different circumstances
While a disability employment support service was closed because of lack of funds, clients and support workers attended without payment. When funding was restored, the workers were refunded wages for this period but the clients did not receive back payment of the small supplement previously paid by the service on top of their Disability Support Pensions. An advocate complained that this was discriminatory. The Acting Disability Discrimination Commissioner declined the complaint on the basis that the persons aggrieved by the act did not wish the complaint to proceed. The President upheld the decision to decline the complaint, on the different ground that the support workers were in materially different circumstances to the clients. The support workers were employees in a legal sense while the clients in this case were not (3 December 1998).
HIV complaint adequately dealt with by Health Care Complaints Commission
A man who is HIV positive complained that he had been discriminated against by being placed last on the day s list for surgery in a hospital and by having his HIV status discussed. The Commissioner declined the complaint on the basis that it had already been adequately dealt with by the Health Care Complaints Commission and by the relevant Area Health Service.
Regarding discussion of the patient s HIV status in a waiting area in front of other patients, an apology and an undertaking to counsel the staff member concerned had been secured. Regarding other discussion of the patient s HIV status by medical staff, the Area health Service had explained that only staff to be involved in the patient s care were present and that communication with such staff about a patient s potential infective status was part of normal hospital safety procedure in addition to universal infection control procedures. Regarding placement last on the day s list, the hospital had explained that this was required as a precaution against infection and because of additional equipment cleaning requirements (19 June 1998).
Failure to adopt preferred medical treatment not discriminatory
A parent complained that her son had been discriminated against on the basis of his Attention Deficit Disorder (ADD) when the management of the juvenile detention centre where he was detained refused to treat his ADD with medication in preference to other treatment. The delegate of the President confirmed the decision of the Disability Discrimination Commissioner to decline the complaint. He noted on the basis of the evidence that the young man's carer's had treated him with the benefit of their knowledge and experience and had taken into account his individual situation. He commented that he could not see that a failure to implement a particular treatment regime in favour of a more conservative approach could constitute less favourable treatment on the basis of disability (14 November 1997).
Requirement for supervision of child at picnic event not unlawful
A parent complained that her daughter, who has a disability affecting her behaviour, had been discriminated against by a refusal to permit her to attend an end of year picnic without being accompanied by an adult supervisor. The delegate of the President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint. He found that the organisers of the event had had reasonable grounds for requiring supervision for the girl to ensure her safety, and that any children who displayed the same behavioural characteristics were also required to be supervised (3 November 1997).
Law Institute appropriate remedy for complaint about solicitor
A woman who is a blind pensioner complained that a solicitor had treated her less favourably on the basis of her disability by bullying her, being rude, overcharging her and misappropriating money. The Delegate of the Disability Discrimination Commissioner declined the complaint on the basis that the Law Institute provided a more appropriate alternative remedy. (1996)
Refusal of bank loan because of low income not disability discrimination
A man who has a disability and is an invalid pensioner complained that a bank's refusal to provide him with a loan was discriminatory. Confirming a decision by a delegate of the Disability Discrimination Commissioner, the President decided there had been no unlawful discrimination under the DDA. He found that the refusal to provide the loan was because of the complainant's level of income and capacity to repay the loan, and that there was no evidence that a person without a disability in similar financial circumstances would have been treated more favourably (24 September 1996).
Lack of assistance for radio presenter not unlawful - unjustifiable hardship found
A presenter of a community radio program complained that he had been discriminated against by a failure to provide him with assistants to operate the control panel, which he could not do because of his disability. The President found that the radio station, which was staffed by volunteers, had made reasonable efforts to obtain assistants but had been unable to do so. He found that in the circumstances a requirement on presenters to be able to operate the control panel without an assistant was a reasonable requirement, and that to say that the station should have provided assistance at all times would place an unjustifiable hardship on the station (24 July 1996).
Dental discrimination complaint adequately dealt with by Health Care Complaints Commission
A man who has hepatitis C complained that he had been discriminated against by a dentist who refused to extract his wisdom tooth. The Commissioner declined the complaint on the basis that it had already been adequately dealt with by the Health Care Complaints Commission, which had found that the dentist had not in fact refused treatment but rather had made an appropriate professional decision to attempt to save the tooth and that there was no substance to the allegation of discriminatory refusal of treatment (1996).
Ombudsman appropriate remedy for prison complaint
A complaint on behalf of a man with an acquired brain injury alleged that he was being discriminated against by a failure of the NSW prison system to accommodate the effects of his disability and that behaviour caused by his disability had led to him being treated less favourably in the selection of the prison where he was held. The Commissioner declined the complaitn on the basis that the matter was more appropriately dealt with by the Ombudsman (1996).
No discrimination in failure to extend fee exemption to disability support pensioners
A number of people with disabilities complained that they were being discriminated against by their bank because although various customers such as aged and war veteran pensioners, customers under 18, and full time students were exempt from account keeping fees, customers who were disability support pensioners were not exempt. The Commissioner declined the complaints. There was no less favourable treatment by reason of disability and thus no direct discrimination simply because being a disability support pensioner was not one of the grounds of eligibility for fee exemption. There was also no evidence that people with a disability were less able than other people to satisfy the other eligibility criteria as would be required to support a claim of indirect discrimination, although the complainants had been given the opportunity to provide such evidence (1995).
No discrimination in targeting services to need
A man complained that he was being discriminated against by being treated as ineligible for Meals On Wheels services because he was receiving WorkCare payments as a result of a work injury. The Commissioner declined the complaint. The man's ineligibility for Meals on Wheels services other than in an emergency was because of the fact that he had alternative home help services available rather than because of his disability. It was reasonable given an excess of demand for services over available resources that the providers should target services to disadvantaged people compelled to rely on it and lacking other alternatives (1995).
DDA does not require banks to waive fees for people with a disability
The President decided, confirming a decision by the Disability Discrimination Commissioner, that it was not unlawful for banks to apply account fees, which applied to all customers, to people with a disability. He noted that the DDA prohibited discriminatory treatment rather than requiring special and favourable treatment (6 September 1995).
No discrimination in licensing and registration requirements for "Nippis"
A number of complaints on behalf of people with mobility impairments claimed that a requirement for registration and licensing of "Nippi" vehicles (three wheeled handle bar controlled vehicles with automatic transmission) was discriminatory. The Commissioner declined the complaints. She noted that requirements for registration and licensing for these vehicles had been introduced in response to police reports of dangerous driving and serious accidents and in response to requests from organisations serving people with disabilities (1995).
Commission will not review court decisions
The President has decided on a number of occasions that judicial review and appeal mechanisms provide more appropriate remedies for review of a magistrate's decision than the Commission dealing with the matter under the DDA (Decisions of 8 February 1995, 9 October 1995 confirming decisions by the Disability Discrimination Commissioner to decline complaints).
The President has also noted that judicial immunity and the separation of powers prevent the Commission from finding decisions of judges to be unlawful under the DDA or reviewing decisions of courts (21 September 1995; 9 October 1995; 18 November 1995).
Closure of residential facility not discriminatory
An advocacy organisation complained about a decision to close a residential facility for people with a disability and relocate its residents. The President decided, confirming a decision by the Disability Discrimination Commissioner, that the decision to close the facility and the approach taken to consultation regarding this decision did not constitute discrimination (4 August 1995)
Unsatisfactory service is not in itself discrimination
A woman with a disability complained about the arrangements made for access to a swimming pool. Confirming a decision by the Disability Discrimination Commissioner, the President decided there had been no discrimination. He found that arrangements had been made to ensure access to the pool for people with a disability. The fact that the complainant was not satisfied with the standard of service provided did not in itself constitute discrimination (12 July 1995).
DDA does not compel councils to provided reserved disability parking
The President decided, confirming a decision by the Disability Discrimination Commissioner, that a possible failure to provide sufficient reserved street parking spaces for people with a disability was not unlawful under the DDA (13 January 1995).
In another case he decided that where no parking spaces are provided by councils this does not amount to unlawful discrimination, and that where parking spaces are provided with some spaces reserved for people with a disability the DDA does not require councils to provide proportionally more spaces for people with a disability than for other motorists (30 June 1995).
NSW Community Services Commission appropriate remedy for aged care complaint
A woman with severe arthritis complained that an aged care service had discriminated against her by refusing to assist her with shopping trips unless she used a wheelchair instead of her walking frame. The service had been concerned about her ability to use their services safely. The Commissioner declined the complaint as more appropriately dealt with by the NSW Community Services Commission (1995).
Smoking ban in hospitals not unlawful discrimination
A man complained that the NSW Department of Health had discriminated against him by enforcing a non-smoking policy in hospitals. He alleged that this policy had a discriminatory impact on him as a person with a nicotine addiction and a mental disability making it more than usually difficult to refrain from smoking. The Commissioner declined the complaint. She noted that given the Department's occupational health and safety responsibilities and its particular health promotion role, its action in banning smoking in hospitals was not unreasonable (1995).
Limited eligibility for disabled parking scheme not unlawful discrimination
A woman with agoraphobia complained that she had been discriminated against by the Roads and Traffic Authority's refusal to provide her with a Disabled Person's Parking authority. The Commissioner declined the complaint on the basis that the act complained of was not unlawful. Eligibility for the scheme extended only to severe permanent medical or physical handicap which rendered a person unable to walk or only able to walk short distances. The complainant had been refused a permit because she did not have a disability within this category. This was covered by section 45 of the DDA, which provides that it is not unlawful to take measures reasonably intended to assist people with a particular disability (1995).
Re-testing for driver s license after complaints not unlawful
A man with a disability complained that he had been discriminated against when he was required to have his ability to drive re-tested after complaints were made about him to the licensing authority. The Commissioner declined the complaint on the basis that (at the time) actions in direct compliance with any other law were lawful under the DDA. She also noted that the State licensing legislation provided for an appeal to the magistrate's court. ( 1995).
Not unlawful to ask for information on eligibility for special service
The President decided, confirming a decision by the Disability Discrimination Commissioner, that it was not harassment or unlawful discrimination to ask a person with a hidden disability to explain why she needed access to the special grocery service provided by a supermarket. He considered that the service provider had acted reasonably and noted that it had not in fact refused to provide the service (7 September 1994).
Disclosure of disability in newspaper not covered by DDA
A
woman complained that her son had been discriminated against by disclosure
of his psychiatric disability in a newspaper. The Commissioner declined
the complaint as not disclosing an unlawful act, since the matter complained
of did not involve an area covered by the DDA (1994).