Mr. Slattery brought this action in the Victorian Civil and Administrative Tribunal (“the Tribunal”) alleging that the City Council of Manningham (“the Council”) had unfairly discriminated against him based on his disability. Slattery suffered from a series of mental impairments including bipolar disorder, attention deficit hyperactive disorder, and post-traumatic stress disorder. Additionally, he acquired a brain injury after suffering from a stroke and had a hearing impairment.
Slattery had submitted thousands of complaints either in writing or in person to the Council pertaining to safety issues. At times, these complaints included insulting remarks and inappropriate language directed at the Councilors and Council officers. The Council then passed a measure to limit the exchanges between the Council and Mr. Slattery to written communication. After finding the measure to be unsuccessful in ceasing the charged exchanges between the parties, the Council passed a motion banning Slattery from entering any building owned, occupied or managed by the Council. Slattery continued to seek access to Council premises after the ban. He submitted a formal written request for review of the ban and received a response affirming the enforcement of the ban.
Slattery brought a disability discrimination claim under the Equal Opportunity Act 2010 (“EO Act 2010”) and the Charter of Human Rights and Responsibilities Act 2006 (“Charter”) for the events following August 2011, the date that the EO Act 2010 came into effect.
The Tribunal found that the Council had violated the EO Act 2010. The Council reasoned that Slattery undisputedly has a series of disabilities and that banning Slattery from access to council meetings as well as municipal-owned facilities violated the EO Act 2010’s prohibition on discrimination in the provision of services. Moreover, the Tribunal held that Slattery’s disability was a substantial reason for the unfavorable treatment that Slattery had received. The Tribunal conceded that there were other reasons for the Council’s ban considering the offensive nature of some of Slattery’s actions. However, despite those other reasons, Slattery’s disability was still a motivating factor for the Council’s decision to ban him. Further, Slattery’s disability contributed to many of his rude actions. According to medical testimony, Slattery’s disability included a compulsion to make complaints. As Slattery’s style of communication with the Council was at least partially attributable to his disability, the Tribunal concluded that Slattery had sufficiently shown that his disability was a substantial reason for the discriminatory treatment in violation of the EO Act 2010.
Finally, the Tribunal considered the reasonable adjustments that the Council was obligated to make to provide Slattery access to the requested services. Slattery proposed three adjustments but the Tribunal found that it lacked sufficient evidence to determine whether these adjustments wereappropriate. The Tribunal did conclude that the hearing loop requested by Slattery was unnecessary as the Council established that facilities to accommodate hearing impaired individuals already existed.
After evaluating Slattery’s claim under EO Act 2010, the Tribunal considered the application of Sections 38 and 39 of the Charter, which make it “unlawful for a public authority to act in a way that is incompatible with a human right.” The Tribunal concluded that the ban was a breach of Section 38 because less restrictive means existed for the Council to achieve its purpose.
Even though the Tribunal held that the Council had violated both EO Act 2010 and the Charter, the Tribunal decided it lacked sufficient evidence to fashion an appropriate remedy. Instead, the Tribunal directed the parties to conduct negotiations and if unsuccessful, make further submissions to the Tribunal that would provide sufficient grounds for determining a remedy.
“It does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.” Para. 44.
“The ban cannot remain in place forever. It is disproportionately extensive and unspecified. It is blunt, broad and insufficiently tailored. It bars Mr Slattery from venues in the municipality where, on the evidence, he has caused no one any concern whatsoever. It is indefinite, and incorporates no transparent process of review. It is discriminatory, for the reasons set out above.” Para. 31.
