October 2007 page 46
Access denied: Limited standing of a human rights organisation to commence discrimination proceedings
By BROOK HELY
Brook Hely is a senior lawyer at the Human Rights and Equal Opportunity Commission, email BrookHely@humanrights.gov.au.
A recent decision of the Federal Court Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council,1 has found that a disability rights organisation did not have standing to commence discrimination proceedings in relation to inaccessible bus stops.
The decision suggests that incorporated bodies may be limited in their ability to commence federal discrimination proceedings in relation to matters affecting their members.
Background
Access for All Alliance (Hervey Bay) Inc (AAA), an incorporated association, is a volunteer community group established to ensure equitable and dignified access to premises and facilities for all members of the community.2
In 2005 AAA brought proceedings against the Hervey Bay City Council alleging that a number of bus stops that had been built or significantly upgraded since the commencement of the Disability Standards for Accessible Public Transport 2002 (the transport standards) did not comply with those standards.
Council's application for summary dismissal
The council sought summary dismissal of AAA's proceedings, on the basis that AAA lacked standing. The application alleged that:3
- there was no statutory basis giving standing to a person to enforce a breach of the transport standards; and
- AAA was attempting to assert a bare public right or duty, which was only available to a person with a "special interest" in the matter, or the Attorney-General or someone acting with his fiat.
The court rejected the above arguments.4 It found that the definition of "unlawful discrimination" under the Disability Discrimination Act 1992 (Cth) (DDA) clearly included a breach of the transport standards.5 Furthermore, the court found that standing to commence proceedings for unlawful discrimination under the DDA derived not from general law principles of standing, but from the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act).6
The court held that the HREOC Act makes it clear that a "person aggrieved" by unlawful discrimination is entitled to lodge a complaint with the Human Rights and Equal Opportunity Commission (HREOC).
Upon termination of the complaint by HREOC, the person is entitled to commence proceedings in the Federal Court or Federal Magistrates Court.7
Person aggrieved - HREOC's acceptance of the complaint
On the question of whether AAA was a person aggrieved by the council's alleged non-compliance with the transport standards, AAA argued that this was a question already determined by HREOC at the time of accepting the complaint. If the council had wished to dispute this decision, its recourse was against HREOC under the Administrative Decisions (Judicial Review) Act 1977 (Cth).8
The court disagreed. It found that such a construction was contrary to Parliament's intent under the HREOC Act of creating a complaints-handling procedure that was efficient and unburdened by legal technicalities.9
Person aggrieved - principles
The court outlined a number of principles regarding whether an applicant is a "person aggrieved".10 For example, the court observed that it was not sufficient that an applicant has merely an "intellectual or emotional" interest in the matter.11
The court also noted that, while incorporated associations are typically community organisations and should not ordinarily be equated with trading corporations, they are, nevertheless, bodies corporate which can sue or be sued in their own name. The interests of its members are therefore "arguably irrelevant".12
Person aggrieved - findings
The court ultimately found that AAA was not a person aggrieved for the purposes of the HREOC Act in relation to the council's alleged breaches of the transport standards. In essence, the court was persuaded by the council's oral arguments that, while AAA's members used the relevant bus stops, AAA did not. Consequently, AAA's interest in the council's non-compliance with the transport standards was merely "intellectual or emotional".13
Possible exceptions
The court left open the prospect that an incorporated association may have standing as a person aggrieved if a particular matter affected the interests of all of its members14 and distinguished the case of unincorporated associations.15
The court also acknowledged that an incorporated association may be aggrieved where a matter affects the organisation itself, such as if an association is refused a lease over premises due to its members having disabilities.16
Finally, the court hinted that an incorporated association may be a person aggrieved if it could establish that it was sufficiently recognised as a representative peak body on the relevant issue, although it suggested that this was "of somewhat debatable significance".17
Reflections
The Disability Standards for Accessible Public Transport 2002 establish a comprehensive code for the accessibility of public transport, covering both conventional public transport (such as public buses and trains) as well as commercial transport (such as airline travel and taxis). The standards were devised following extensive consultation with government and transport representatives, as well as the disability community. The standards do not establish an ideal standard, but a minimum standard, with which non- compliance is unlawful.18
The courts have yet to consider the operation of the transport standards. It is, therefore, perhaps unfortunate that the decision in AAA was in the context of an application for summary dismissal and thus without the benefit of complete evidence and argument on the matter.19
In particular, a full hearing of AAA's application may have provided a greater opportunity for the court to consider the purpose, scope and operation of the standards and whether a broader interpretation of "person aggrieved" is perhaps necessary and appropriate to ensure that the transport standards are fully effective.
Transport provides society's circulation system, infusing and connecting its various facets. It enables employees to go to work, customers to reach shops, and friends and families to socialise and travel. Inaccessibility of public transport and its infrastructure is therefore a concern that transcends the interests of individuals within the disability community. It is a matter that aggrieves society at large.
For a copy of the decision in AAA, go to www.austlii.edu.au/au/cases/cth/federal_ct/2007/615.html.
A copy of the submissions filed in AAA by the acting Disability Discrimination Commissioner as amicus curiae is available at www.humanrights.gov.au/legal/submissions_court/amicus/hervey_bay.html.
[1] [2007] FCA 615.
[2] Ibid [6].
[3] Ibid [15]. The council also relied on the "equivalent access" provisions under the transport standards, although this argument was summarily rejected: [70]-[72].
[4] Ibid [22]-[34].
[5] Ibid [31].
[6] Ibid [33]-[34].
[7] Ibid [31], [34].
[8] Ibid [36].
[9] Ibid [38]-[39].
[10] Ibid [37]-[51].
[11] Ibid [41].
[12] Ibid [49]-[50].
[13] Ibid [67].
[14] Ibid [60], distinguishing Manuka Business Association Inc v The Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592.
[15] Ibid [58], distinguishing Executive Council of Australian Jewry v Scully (1998) 79 FCR 537.
[16] Ibid [46], [54].
[17] Ibid [63].
[18] DDA, s.32.
[19] This issue is dealt with at [65]-[67].
