Slattery v Manningham City Council (Human Rights)  VCAT 1869 (30 October 2013)
The Victorian Civil and Administrative Tribunal (VCAT) found that a Council directly discriminated against a resident in the area of goods and services on the grounds of disability contrary to the Equal Opportunity Act 2010 (the EOA). In doing so the VCAT found that the exceptions under the EOA of statutory authority and health and safety were not made out. Further the VCAT found that the Council’s actions had breached the Charter of Human Rights and Responsibilities Act 2006 (the Charter). The Applicant was represented by Victoria Legal Aid’s Equality Law Program.
Mr Slattery is a resident and rate-payer of the Manningham City Council (the Council). He has been diagnosed with bipolar disorder, post-traumatic stress disorder, a compulsive disorder, a hearing impairment, and an acquired brain injury. Mr Slattery made thousands of written and verbal complaints to the Council about what he identified as safety issues in the community and issues of corruption in the Council. In 2009 the Council banned Mr Slattery from attending all buildings owned, operated or managed by the Council indefinitely (the ban). This prevented Mr Slattery from accessing Council services, and from participating in Council Governance through attendance at public Council meetings. Despite numerous requests from Mr Slattery to remove the ban it continued and on 16 November 2012 the Council wrote to Mr Slattery confirming that the ban would not be lifted. Due to jurisdictional issues the complaint was limited to the 2012 refusal of the Council to lift the ban instituted in 2009.
The applicant submitted that the ban was extended by the Council because of Mr Slattery’s complaints and other behaviours which were manifestations of his disabilities. Further the applicant argued that in continuing the ban the Council acted contrary to, and failed to consider, his right to equality, to freedom of expression, and to participate in the conduct of public affairs.
The Council argued that Mr Slattery was not banned because of his complaints but rather because of his aggressive behaviour, highlighting a number of isolated alleged incidents between Mr Slattery and Council staff from 1998 to 2013. The Council argued that Mr Slattery’s aggressive behaviours were not manifestations of his disabilities and therefore the Council’s actions did not constitute direct discrimination under the EOA. Further the Council argued that their actions were protected by the statutory authority and health and safety exceptions in the EOA because, the Council alleged, Mr Slattery’s conduct imposed a risk to the health and safety of Council staff.
In relation to the Charter the Council cited Director of Housing v Sudi  VSCA 266 (Sudi) and argued that the VCAT did not have jurisdiction to consider lawfulness under section 38 and 39 of the Charter because VCAT’s jurisdiction is limited to that conferred on it by statute; it does not have inherent jurisdiction to engage in judicial review and consider the lawfulness of Council actions on administrative law grounds. The respondents further argued that conduct can only be unlawful for the purpose of section 39 if it is unlawful on administrative law grounds.
The VCAT found that the Council continued the ban because of Mr Slattery’s complaints and because of the nature and tone of his communication with the Council. The VCAT found that Mr Slattery’s compulsion to complain, irrational and anti-social behaviours, and aggressiveness were manifestations of his disabilities. Therefore the VCAT found that the Council directly discriminated against Mr Slattery. The VCAT then considered the exceptions raised by the Council and found that neither applied because the ban was too broad and was not appropriately designed to secure the health and safety of staff. Finally the VCAT found that the relevant rights under the Charter were engaged and that that the Council did breach section 38 of the Charter.
This was the first VCAT decision to consider the new definition of direct discrimination under the 2010 EOA. The Respondent argued that whilst the comparator was removed from the definition in the 2010 EOA a comparative analysis is still required in order to find that direct discrimination occurred. The Tribunal rejected this argument and found that consideration of unfavourable treatment under the EOA does not require consideration of the treatment afforded to other people in the same situation. Senior Member Nihill held instead that what is required “is an analysis of the impact of the treatment on the person complaining of it”.
This decision also confirmed that the VCAT has jurisdiction to consider allegations of unlawfulness under sections 38 and 39 of the Charter when it is directly considering the lawfulness of a Respondent’s actions under another enactment, such as the EOA. Senior Member Nihill held that unlawfulness under the Charter is not limited to unlawfulness in an administrative law sense. She followed the reasoning of Senior Member Steele in Caripis v Victoria Police  VCAT 1472, being that the decision in Sudi recognises the Tribunal’s jurisdiction to consider Charter unlawfulness when the lawfulness of the decision itself is directly before the Tribunal.
The decision also confirmed that the VCAT considers section 7(2) of the Charter to be relevant to an assessment of lawfulness under section 38 of the Charter. The implication is that conduct will not be incompatible with rights and breach section 38 if the limits imposed are justifiable.
The findings of the VCAT on the definition of disability in section 4 of the EOA were also significant. The definition includes behaviour that is a manifestation of a disability but is silent on whether or not that behaviour needs to be solely caused by the disability. Citing section 32 of the Charter and the objectives of the EOA Senior Member Nihill held that it was sufficient if the evidence establishes that the relevant behaviour is symptomatic of disability “to at least a significant extent”.
Finally, it is worth noting the VCAT’s findings on the relevance of events prior to the jurisdiction of the 2010 Act where conduct has been ongoing. The Respondent submitted that because the VCAT’s jurisdiction was limited to the refusal to lift the ban in 2012, the VCAT must assume that the ban imposed in 2009 was lawful and therefore find that subsequent Council staff were simply implementing lawful decisions of the Council. Senior Member Nihill rejected the argument that the ban must be assumed to be valid, and further found that the evidence about the reasons for the 2009 ban were relevant to a consideration of the lawfulness of the 2012 decision to extend it.
The full case is available at: http://www.austlii.edu.au/au/cases/vic/VCAT/2013/1869.html
Aimee Cooper was the instructing solicitor in this decision and is a senior lawyer with Victoria Legal Aid