Kevin Cocks v State of Queensland 24 August 1994

The Queensland Anti-Discrimination Tribunal ordered that the front entrance to the Brisbane Convention and Exhibition Centre, a major State project which at the time was under construction, be modified so as to include a lift at the entrance.

The Brisbane Convention and Exhibition Centre project was undertaken on a design and construct basis, with tenders called in August 1992. Tenderers were required to comply with AS1428.1 "Design for Access and Mobility". Leighton Contractors Pty Ltd were the successful contractors, undertaking to comply with Part 2, as well as Part 1, of AS1428.

The Centre has 5 public levels and is served by 10 public entries distributed around the perimeter of the Centre. The Centre generally is served by steps, ramps and lifts (in the course of the hearing it was alleged that more than half of the entries were comprised of stairs and were therefore inaccessible to those who have an impairment that precludes the use of stairs).

One of the Centre's entries had been designed as the main entry to the Centre, its foyer being intended to contain works of art and a large registration desk for conferences. At the date of the hearing this entry was accessible only by a flight of 27 steps.

Lifts within one of the other entries, and which is suitable for use by people who use wheelchairs, are located approximately 43 metres away from the base of the steps to the main entry.

From March 1993 to July 1994 negotiations were held with the Leightons and Q Build (the Queensland construction authority) by the access and mobility committee of ACROD (an organisation representing the accessibility rights of people with a disability). The negotiations related to, among other accessibility matters, the lack of accessibility of the Centre's main entry. The solution proposed to Leighton and Q Build was the construction of a lift at the main entry.

In October 1993, a report of Queensland's Parliamentary Committee of Public Works was submitted to the Legislative Assembly. The Committee expressed concern at the lack of accessibility of the Centre, particularly the main entry; the effect of this in segregating the "disabled" from other persons using the complex; and the lack of consultation with "disabled" groups.

Notwithstanding the negotiations and the Government report, no changes were made to the main entry.

A complaint was subsequently lodged with the Tribunal by Kevin Cocks, a person who has quadriplegia and relies for mobility upon a wheelchair.

The Tribunal found: 'The failure to provide access to the front entrance of the Centre for persons with a mobility impairment is unlawful discrimination.... It is indirect discrimination on the ground of impairment in the provision of services and in the administration of State laws and programs to which no exemption applies.' The Tribunal ordered that a lift be constructed at the main entry, leaving the integration of the appearance of the lift with that of the Centre to the discretion of the Centre's architects, but stipulating that the appropriate design be developed within 14 days of the Order, and that failure so to do would result in the Tribunal determining the design.

In its reason for its finding, the Tribunal elucidated the difference between direct and indirect discrimination, citing McHugh J. in Waters v Public transport Corporation (1991): " .... discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different." The Tribunal observed that "Indirect discrimination occurs when a requirement or condition is imposed equally but has an adverse impact on persons with different attributes. In this regard it cited Dawson and Toohey, also in Waters v Public Transport Corporation: "Both direct and indirect discrimination .... entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable."

In terms of the Queensland Anti-Discrimination Act, which outlaws discrimination in the supply of goods and services, the Tribunal found that access to the main entry of the Centre is a service, a service provided with the condition that people be able to use steps.

In considering whether there was a case for unjustifiable hardship to the State of Queensland, the Tribunal concluded that, notwithstanding the estimated cost of over $m277 for construction of a lift at the main entry, this was a small amount in relation to the multi-million dollar cost of the project. In response to Q Build's concern at resulting project delays, the Tribunal was unmoved, observing that Q Build had the opportunity for some time to attend to the matter.

The Tribunal concluded: The detriment to the respondent is the cost and the aesthetic effect of the installation of the lift. The benefit to the impaired is that they would feel welcomed into a major public building and would not be excluded in fact from the principal entrance used by others. It would enhance their rightful acceptance as members of the community with equal dignity and worth ...."

The significance of this landmark case is that it establishes that accessible alternative or subsidiary entries to inaccessible main entries, even if they are relatively close to the main entries, are unacceptable at law. It also clearly establishes a precedent in relation to other building features and attributes.

Place of Hearing: Brisbane
Dates of Hearing: 22,23 August, 1994
Date of Decision: 24 August, 1994
R.G Atkinson, President of the Anti-Discrimination Tribunal

Summary prepared by Hunarch Consulting.