in the
VCAT 1049
The Nature of the Case
The case concerns discrimination on the basis of parental status, pursuant to sections 44(1)(a) and 52(a) of the Equal Opportunity Act 2010 (EO Act). The applicant, Mr Galea claims the costs associated with the wasted drive from Melbourne to Blairgowrie, loss of employment for the day, distress, humiliation and embarrassment and loss of the to opportunity to find alternative holiday accommodation.
The Facts
On the 24th of October 2011, Mr Galea (the applicant) and his wife made enquiries about staying at the Blairgowrie Caravan Park. They were told over the phone that a site would be available from the 24th of December 2011 to 14 January 2012. On Saturday 29th October 2011, Mr and Mrs Galea drove to the caravan park to pay the deposit required for their stay. They met with the caravan park owner and manager, Mr Ross Hartnett (the respondent). The meeting concluded with no accommodation booking and Mr and Mrs Galea driving away upset and angry. Mr Galea alleges that Mr Hartnett discriminated against him based on parental status (an attribute for discrimination s6(i) of the Equal Opportunity Act, however, Mr Hartnett alleged the booking was not made because he could not accommodate Mr Galea’s boat and the number of cars he and his family planned to bring to the park. The complaint was made under s44 and s52; discrimination in the provision of goods and services and s52 discrimination in offering to provide accommodation, respectively.
Was there discrimination based on parental status pursuant to sections 44 and 52 of the Equal Opportunity Act?
The primary issue was whether Mr Galea faced discrimination based on his parental status. One of the attributes listed in section 6 of the Equal Opportunity Act. Mr Galea alleges discrimination pursuant to sections 44, 52 and 53 of the EO Act. Section 44 of the EO Act prohibits discrimination in the context of the provision of services. Section 52 prohibits discrimination in offering to provide accommodation and section 53 prohibits discrimination in providing accommodation.
Mr Galea alleges that Mr Hartnett engaged in direct discrimination as per section 8 of the EO Act. In order for Mr Galea to succeed, he needed to show that he was treated unfavourably because of his parental status ( he had two young adult sons that he wished to bring to the caravan park). In order to establish a successful claim, discrimination must be the substantial reason for the refusal of accommodation at the caravan park. Pursuant to the EO Act, motive is irrelevant in determining whether or not a person discriminates.
Holding and Decision
The member, A Dea , after hearing and weighing up evidence from both sides held in favour of Mr Galea. A large amount of evidence provided by the two parties was agreed upon, despite differing views in relation to meaning. It was held that following the initial phone conversation on the 24th of October 2011, no booking was made by Mr Galea. This is supported by Mr Hartnett’s policy of not taking phone bookings, as well as the fact that there was evidence that Mr Galea had not provided his full name and address, further no deposit was taken at the time.
The member rejected the view that Mr Hartnett held that Mr and Mrs Galea would bring the boat, despite the fact that they said they would not. It was found that the real issue concerned Mr Galea’s two young adult sons. What was said concerning Mr Galea’s sons was disputed, but the member preferred the evidence given by Mr Galea. Mr Hartnett had concerns regarding the issue of supervision of the boys. He also said things to the effect of the clientele of the park being middle aged couples and families and that he believed that his park was not for them. The member did not accept that the only reason for refusing the booking concerned the boat, its size and whether it would be brought.
Mr Galea was successful in establishing discrimination under sections 44 and 52 of the EO Act. Section 53 proved to be irrelevant as it concerns circumstances where there is an agreement for accommodation to be provided. As it was concluded that there was no such previous agreement for accommodation when the October 24th phone conversation took place.
Mr Galea was awarded $1,090 under s125 of the E0 Act where the tribunal was permitted to find that Mr Hartnett contravened a provision.
Under section 125 of the EO Act, after hearing the evidence and representations of the parties, the Tribunal may find that a person has or has not contravened a provision. If it finds there has been a contravention, the Tribunal may make a range of orders including for a person to pay to the applicant an amount the Tribunal thinks fit to compensate for loss, damage or injury suffered in consequence of a contravention. Also, he thought
· Discrimination based on parental status
· Only $1,090 awarded; proven s125(a)(iii)- Equal Opportunity Act 2010
· S52(a) and s44(1)(a)- Equal Opportunity Act 2010
· Lost wages-dismissed; hypothetical
· Petrol- $90 awarded
· Loss of accommodation- disproved
· He was the sole applicant; it was just in relation to his feelings
o No exemplary damages
o Holiday to be paid for by Hartnett, the caravan holiday was estimated to cost $930; so $1,000 was awarded. This was an amount that was enough to demonstrate to Harnett and the public that the issue was substantially serious.
o No medical condition arose
o Not over a prolonged period
o The humiliation from the newspaper article was not the fault of Hartnett
· S44(1)(a)
Relevant Sections
S44(1)(a): 44 Discrimination in the provision of goods and services
(1) A person must not discriminate against another person—
(a) by refusing to provide goods or services to the other person;
S52(a) 52 Discrimination in offering to provide accommodation
A person must not discriminate against another person—
(a) by refusing, or failing to accept, the other person's application for accommodation;
S6(i)- parental status or status as a carer;
- The attribute in question for discrimination.
Opportunity for Women in the Workplace Act 199 (Vic)
Earlier this year, a Senate inquiry on the Opportunity for Women in the Workplace Act 199 (Vic) (the Act) was referred to a Senate Committee for inquiry and report. On May 8th, after having considered the report, the Victorian Senate released a Bill outlining a number of proposed amendments to the Opportunity for Women in the Workplace Act 1999 (Vic). These changes come as part of an overall scheme designed to promote workplace opportunity over the last few years and operate in step with other legislation, such as equal opportunity and disability legislation. Indeed, the proposed amendments have significant implications for individuals with disabilities.
Whilst disability legislation has gone some way to prevent employers discriminating against employees based on a disability and ostensibly making it easier to for them to successfully gain employment, once employed, these individuals often face discrimination in other forms that the Act seeks to address.
For example, the provisions in the Act go a long way to prevent discrimination in remuneration both between individuals with and without disabilities and between employees with disabilities. For example, the Act would prevent employees with disabilities being paid less than employees without disabilities for the same work. Similarly, the Act prevents female employees with disabilities from being paid less than males with disabilities for the same work.
However, the Act only applies to ‘relevant employers’, meaning people or companies that have over 100 employees. As a result, the protections in the Act will not be afforded to all individuals. Nonetheless, those who meet the definition of a ‘relevant employer’ are required to comply with a new reporting framework and strict punishments for breaching the legislation have been imposed. The former Equal Opportunity for Women in the Workplace Agency, renamed as to the Workplace Gender Equality Agency has been given more expansive powers to investigate complaints, as well as the power to set benchmarks for employers to reach in terms of gender equality indicators. It is highly likely that these benchmarks will include standards relating to remuneration of females employees with a disability.
The European Court of Human Rights has recently published judgement on the matter of Dordevic v Croatia, a case preoccupied with the ongoing abuse and harassment of a disabled man (Dalibor Dordevic) and his mother (Radmila Dordevic) living in Zagreb. The case was taken under the Convention for the Protection of Human Rights and Fundamental Freedoms
The applicants were recipients of ongoing abuse and harassment from 2006 by a group of youths who were within the same neighbourhood. The behaviour included name-calling, spitting, and causing damage to the applicant’s property which occurred consistently and was sometimes daily. The name-calling varied from derogatory terms affiliated with Dalibor’s disability and references were also made to the applicants’ ethnicities. The harassment escalated and Dalibor was subjected to more serious physical abuse from the youths. Initially, the authorities were informed of the matter in 2008 however, no direct action was taken to address the matter.
On 24 July 2012, the court published their judgment and found for the applicants on the grounds that the violations of the following convention’s articles had occurred:
· 3: prohibition of inhuman and degrading treatment.
· 8: right to private and family life.
· 13: right to an effective remedy on the basis that the authorities’ failure to effectively end the abuse initially.
This is the first disability hate crime case decided by this court. Such an outcome infers that current community attitudes within Europe need adjustment in order to prevent the occurrence of such crimes. Violation of section 13 stipulates that a systematic error exists within Croatia as the authorities were not aware that a legal duty was present to act in such a case as this.
This action was characterised under the ICCPR rights and not the CRPD. However it reflects concerns that DDLS hold which prompted a research report on disability vilification. Our research found that despite the fact that people have directly experienced or have witnessed disability vilification, only very limited protection is offered by existing Victorian and federal legislation. However, although we identified that there are constitutional factors which may prevent the federal government from legislating against disability vilification there are no such constraints on the States.
Dordevic confirms the importance of implementing legislation that prohibits disability vilification. The recommendation by the DDLS not only seeks to directly target disability vilification by providing formal protections to victims it also aims to assist in improving the community’s attitude towards such conduct. The impact of disability vilification can be demonstrated by its effect on self-esteem, transcending into one’s feeling of acceptance within the community, and influencing an individual’s ability to seek education, employment and overall participation within society.
The introduction of such legislation would comply with the aims of the National Disability Strategy and the main objective of the DDA to promote community recognition and acceptance. Current Victorian and federal legislation does not adequately protect people with a disability from vilification and law reform in this area is needed. The European Court of Human Rights has highlighted that a State has an obligation to provide adequate remedies for victims of disability vilification and this also applies to Australia. This judgment reinforces the relevance of the DDLS recommendation to implement such legislation and fill the gaps which currently exist in the law.
NDIS
“A National Disability Insurance plan is a reform on the scale of Medicare and compulsory superannuation: it would prevent countless families and carers from becoming impoverished and exhausted. It will introduce common-sense, low-cost reforms that would remove barriers to employment for many more people like me, saving taxpayers money over the long term.” Milly Parker, Victoria.
The National Disability Insurance Scheme (NDIS) is one of the most recent proposed reforms. The scheme would provide 5000 people from Barwon (the chosen trial area) who have a disability, no matter how it was acquired, with up to $35 000 in additional payments. This money, with approval from a streamlined body to prevent misuse, would be used for additional support services and equipment such as physiotherapy or regular meetings with a psychologist that would greatly improve the quality of life for those individuals with a disability.
Currently, many people with a disability go without important services due to the backlog and delays in the system (sometimes years long) which has been described as ‘broken.’
“We’ve had to choose between equipment for toileting, or equipment for standing. Which would you choose – for your son or daughter to be able to stand or go to the toilet?”
Likewise, many people, such as Rachael and Noel Taylor forgo services altogether which would significantly improve their daughters wellbeing because those same services cost hundreds of dollars a week; money that working families do not have.
South Australia, Tasmania and the ACT have already agreed to trial this program with Victoria and NSW earlier this week declaring their support. Before this announcement, the schemes future looked uncertain. Neither the Commonwealth nor the States wished to foot the bill for the NDIS and were locked in a stalemate – a stalemate which may have seen the trial rejected in Victoria and may still see it rejected in NSW.
While Mr Baillieu insisted Victoria was a strong supporter of the scheme, this was a hard statement to reconcile with Victoria’s unimpressed reaction to the 50-50 split for additional blow out costs proposed by the Commonwealth.
Despite the doubts, the anticipation has payed off with Victoria announcing a contribution of 42 million to fund the trial.
We hope this is the start of a new era; an era of proper support for those with a disability. Congratulations!