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Court rules that owners corps must not discriminate

  • July 14, 2018
  • Paul Mulholland

The recent Supreme Court of Victoria ruling makes clear that Victorian owners corporations are required to make reasonable adjustments for both tenants and visitors who have a disability.

Since 2015, Anne Black had lived in an apartment on the fourth floor of a residential development. In 2015, she developed disabilities that required her to use a wheelchair which inhibited her from accessing her apartment and other parts of the building.

Lift added to building

Ms Black commenced proceedings, pursuant to sections 44, 45 and 56 of the Equal Opportunity Act 2010 (‘the EOA’), against the relevant Owners Corporation asserting that the Owners Corporation was unlawfully discriminating against her by failing to make alterations to the building so she could access the common areas and her apartment independently. Read together, sections 44 and 45 of the EOA essentially provide that a service provider must not discriminate against a person with a disability by refusing to make reasonable adjustments to a service so the disabled person may access or derive a substantial benefit from the service.

The Owners Corporation’s position was that its obligations were limited to consenting to Ms Black making reasonable alternations to the common property so long as she paid for those alterations. In support of that position the Owners Corporation relied on section 56 of the EOA which obliges Owners Corporations to allow owners to make reasonable alterations to the common property at their own cost in circumstances where those owners are disabled.

VCAT’s Determination

Senior Member Steele found that section 56 did not exclude the operation of sections 44 and 45 and therefore those sections applied to Owners Corporations as a service provider. However, the question of whether the Owners Corporation had unlawfully discriminated against Ms Black depended upon whether the alterations required by Ms Black were reasonable within the meaning of section 45(3) of the EOA. Submissions on the reasonableness of Ms Black’s requests were not made at this hearing.

Background

Over the past 30 years the Commonwealth Government and the state and territory governments have introduced laws to help protect people from discrimination and harassment.

The following laws operate at a federal level and the Australian Human Rights Commission has statutory responsibilities under them:

  • Age Discrimination Act 2004
  • Australian Human Rights Commission Act 1986
  • Disability Discrimination Act 1992
  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984.

The following laws operate at a state and territory level, with state and territory equal opportunity and anti-discrimination agencies having statutory responsibilities under them:

  • Australian Capital Territory – Discrimination Act 1991
  • New South Wales – Anti-Discrimination Act 1977
  • Northern Territory – Anti-Discrimination Act 1996
  • Queensland – Anti-Discrimination Act 1991
  • South Australia – Equal Opportunity Act 1984
  • Tasmania – Anti-Discrimination Act 1998
  • Victoria – Equal Opportunity Act 2010
  • Western Australia – Equal Opportunity Act 1984.

Commonwealth laws and the state/territory laws generally overlap and prohibit the same type of discrimination. As both state/territory laws and Commonwealth laws apply, you must comply with both. Unfortunately, the laws apply in slightly different ways and there are some gaps in the protection that is offered between different states and territories and at a Commonwealth level. To work out your obligations you will need to check the Commonwealth legislation and the state or territory legislation in each state in which you operate.

You will also need to check the exemptions and exceptions in both the Commonwealth and state/territory legislation as an exemption or exception under one Act will not mean you are exempt under the other.

See the tables below for detailed information on Victorian Acts.

Disability Discrimination Act 1992

Discrimination on the basis of physical, intellectual, psychiatric, sensory, neurological or learning disability, physical disfigurement, disorder, illness or disease that affects thought processes, perception of reality, emotions or judgement, or results in disturbed behaviour, and presence in body of organisms causing or capable of causing disease or illness (eg, HIV virus).

Also covers discrimination involving harassment in employment, education or the provision of goods and services

Discrimination in employment, education, access to premises, provision of goods, services and facilities, accommodation, disposal of land, activities of clubs, sport, and administration of Commonwealth laws and programs.
Victoria: Equal Opportunity Act 2010 (VIC)

Discrimination on the basis of age, breastfeeding, disability, employment activity, gender identity, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race (including colour, nationality, ethnicity and ethnic origin), religious belief or activity, sex, sexual orientation, and personal association with someone who has, or is assumed to have, any of these personal characteristics.

Sexual harassment is also prohibited under this Act.

Victoria: Racial and Religious Tolerance Act 2001 (VIC)

Vilification on the basis of race or religion is prohibited under this Act.

Discrimination in employment, partnerships, firms, qualifying bodies, industrial organisations, education, provision of goods and services, disposal of land, accommodation (including alteration of accommodation), clubs, sport, and local government.

On the 21 June 2018 the Supreme Court of Victoria confirmed that owners corporations must make reasonable adjustments to buildings for tenants and visitors with a disability, or they risk being discriminatory.

The case, Owners Corporation v Anne Black, has significant implications for residential and commercial owners corporations across Victoria.

“Owners corporations are vitally important bodies that can help Victorians use, access and enjoy their homes and the world around them,” said Commissioner Kristen Hilton.

“This case confirms their obligations towards people with a disability, including making sure they can access their home and public spaces.”

Accessibility is a common issue for people with a disability. In this case, Ms Black has trouble accessing her own apartment because of heavy, manual doors that don’t open easily with the scooter she uses. The owners corporations responsible for managing the apartment complex argued they did not provide a service, and that Ms Black must pay for any changes to the building herself.

The Commission joined the case, as a friend of the court, to provide expert advice on discrimination law.

The Equal Opportunity Act 2010 requires service providers to make “reasonable adjustments” to accommodate people with disabilities. What is reasonable depends on individual circumstances, such as the size of the owners corporation, the nature of adjustments required and their cost.

The ruling makes clear that Victorian owners corporations are required to make reasonable adjustments for both tenants and visitors who have a disability. This may mean providing appropriate signage, lighting or accessible meeting rooms, depending on circumstances. It will affect owners corporations operating in commercial settings, like a shopping plaza or private offices, as well as in residential settings.

 

References:

() A quick guide to Australian discrimination laws, Available at: https://www.humanrights.gov.au/employers/good-practice-good-business-factsheets/quick-guide-australian-discrimination-laws (Accessed: 11 July 2018).
(9 February 2018) Anne Black v Owners Corporation OC1-POS539033E (Human Rights) [2018] VCAT 185 (8 February 2018), Available at: http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2018/185.html (Accessed: 11 July 2018).
Anna Craig (21 June 2018) Court rules that owners corps must not discriminate, Available at: https://www.humanrightscommission.vic.gov.au/home/news-and-events/item/1722-court-rules-that-owners-corps-must-not-discriminate (Accessed: 11 July 2018).
James Collier and Gerard Nymyer (4 May 2018) Owners Corporation Management: Black v Owners Corporation OC1-POS539033E [2018] VCAT 185, Available at: https://www.strataconsultants.com.au/owners-corporation-management-black-v-owners-corporation-oc1-pos539033e-2018-vcat-185/ (Accessed: 11 July 2018).