HARAKSIN V MURRAYS AUSTRALIA LTD Disability Discrimination Judgment
Total Page：16
File Type：pdf, Size：1020Kb
Journal of the Public Interest Advocacy Centre Number 36, Autumn 2013 HARAKSIN v MURRAYS AUSTRALIA LTD Disability discrimination judgment PIAC 30th ANNIVERSARY Stories from the archive JUSTICE GAGELER: PIAC’s ‘extraordinary diaspora’ 30TH ANNIVERSARY Three key principles inform PIAC’s work Working for a fair, just CEO REPORT & democratic society This year, the Public Interest Advocacy Centre (PIAC) celebrates its 30th birthday. For 30 years, PIAC CONTENTS staff and board, volunteers, students and pro bono supporters have worked DISABILITY DISCRIMINATION . 4 together to pioneer public interest advocacy in Australia. PIAC provides ENERGY DISCONNECTION . 5 a voice for the vulnerable, improving ASBESTOS EXPOSURE . 6 access to justice, and finding effective solutions to social problems and Edward Santow, PIAC Chief Executive PETER CASHMAN . 7 systemic disadvantage. There are three key principles at and business sectors to develop CHELMSFORD HOSPITAL . 8 the heart of what PIAC has strived to comprehensive, systemic solutions do over the past 30 years. that address social justice problems DALKON SHIELD . 10 First, PIAC looks for disadvantage at their source. and unmet legal need. The Homeless Through the Indigenous Justice NUDE SUNBATHING . 12 Persons’ Legal Service (HPLS) is a Program, made possible through the good example. It is a collaborative funding of law firm Allens, PIAC has 30th ANNIVERSARY PHOTOS . 14 venture that brings together 10 law been a key player in protecting the firm members of PILCH NSW and a rights of Aboriginal and Torres Strait host of welfare agencies. Islander people. A long-running project Edited by: Dominic O’Grady HPLS provides free legal assistance has been to ensure that the many Design: Pro Bono Publico to people who are homeless. In the Aboriginal people, whose wages were Layout: Lena Lowe past decade, it has helped about 7000 withheld in trust accounts, could have Production: Thomson Reuters, homeless clients. that money repaid. www.thomsonreuters.com.au This year, PIAC is focusing on PIAC worked with the NSW Copyright: PIAC April 2013 the link between homelessness and Government to establish a repayment ISSN: 1039-9070 mental illness, as well as ways to scheme, and then built a coalition of ABN: 77 002 773 524 remove the revolving door between law firms to help Aboriginal workers prison and being homeless. and their descendants access their Public Interest Advocacy Centre Ltd The second key principle for PIAC money. This was a complex process Level 7, 173-175 Phillip Street is that we try to see our clients’ involving a mixture of advice on Sydney NSW 2000 problems in their broader context. We law reform to establish the scheme, DX 643 Sydney undertake test cases so that people in education to ensure that eligible Phone: +61 2 8898 6500 a similar position are able to benefit. claimants were aware of the scheme, Fax: +61 2 8898 6555 A good example is PIAC’s work and legal advocacy to allow claimants Web: www .piac .asn .au to promote fairness and equality to navigate through the scheme. www facebook. com/pages/. for people with disability. This year, As PIAC looks ahead at its next 30 Public-Interest-Advocacy-Centre our clients, Graeme Innes and Julia years, we are acutely aware that much @PIACnews Haraksin, were successful in their remains to be done to promote social respective disability discrimination justice for disadvantaged people. This publication is for general information claims against RailCorp and Murrays An immediate challenge is that the purposes only. It is not intended as advice on Australia Ltd (see pages 4 and 5). current economic situation has put any particular matter or legal question, and is not a substitute for legal advice from a qualified But these were just two of a pressure on funding for PIAC, as well professional. PIAC disclaims all liability for number of cases in which PIAC has as other community legal centres, just errors or omissions of any kind whatsoever, represented clients seeking accessible as our clients need our help the most. or for any loss or damage, in whole or in part, arising from any person relying on any public transport. In recent years, we In this context, the support we information in this publication. have had successful cases dealing receive from the community, and with aircraft travel and wheelchair especially the legal community, is very Cover: Julie Haraksin, Chris Ronalds SC and PIAC senior solicitor Camilla Pandolfini. accessible taxis. much appreciated and remains crucial Photo: Dominic O’Grady. The third principle at the core of to our ongoing success. PIAC’s work is that we work with our Edward Santow, clients, government, the community PIAC Chief Executive Officer. Amanda James Photo: 2 PIAC BULLETIN JOURNAL OF THE PUBLIC INTEREST ADVOCACY CENTRE – Number 36, Autumn 2013 NEWS Justice Gageler on PIAC’s ‘extraordinary diaspora’ he High Court’s Hon Justice Stephen Gageler and the NSW TAttorney General, the Hon Greg Smith, addressed guests at PIAC’s 30th anniversary dinner on 28 February 2013. Noting it was impossible to name every contributor to PIAC over the past three decades, Justice Gageler nevertheless acknowledged ‘the extraordinary extent of the PIAC diaspora’. ‘I am not talking here about the people like John Basten and Jeremy Kirk (to name just two of those present) who were always happy to do work that was farmed out to them. ‘I am not talking about the friends of PIAC, of which there are many. ‘I am talking about the hundreds of people who worked in, or for or with PIAC generally for a period of months or years, generally in their youth: people who in many cases have gone on to have very significant careers in law, in public or community service or in academia or in some cases all three,’ Justice Gageler said. ‘John Basten reminded me that those old enough to remember the Easybeats may have watched the sad story of Stevie Wright, the group’s lead singer, on Australian Story recently. The Hon Justice Stephen Gageler at PIAC’s 30th anniversary dinner. Photo: Chris Gleisener ‘Apart from his descent into the netherworld of drug and alcohol ‘There is much that has changed the legal representatives of the addition, Stevie also suffered deep in the legal landscape since PIAC first adversaries sit at the same level to sleep therapy for which Chelmsford came onto the scene. present their cases to a Judge. Hospital became notorious. PIAC ‘Some of the space once occupied ‘None of us are naïve enough to was instrumental in the long running by public interest organisations is think that the adversary system of litigious saga that led to the exposure now occupied by litigation funders. justice is the only way, or even the of the horrific regime at Chelmsford. But issues of access to justice remain. optimal way, or in some cases even an ‘Liza Carver, who could not be ‘There is a concept in the appropriate way of delivering socially here tonight, reminded me of the European law of human rights of optimal outcomes. But if and to the HomeFund litigation in the Federal which I have just become aware extent that it is an available way of Court, part of which ended up in the because it has featured in some resolving an issue of significance to High Court in which thousands of recent decisions of the Supreme the public interest then it is in the former housing commission tenants Court of the United Kingdom. public interest that the adversaries faced mortgage interest rates of ‘The concept is that of “equality of have equality of arms. 17 per cent. Others reminded me of arms”. I am not sure exactly what it ‘That, amongst other things, is the copper seven IUD litigation. means. That is probably why I find it what PIAC delivers.’ ‘This was all pioneering stuff. interesting. I think it is the litigation This is an edited version of Justice The issues were difficult. The stakes equivalent of a level playing field. I Gageler’s speech to guests at PIAC’s were high. The public interest was think it is symbolised in our court 30th anniversary dinner, Photo: Amanda James Photo: unambiguous. rooms by a common Bar table where 28 February 2013. www.piac.asn.au 3 NEWS Murrays case puts all public transport operators on notice A direct discrimination finding against Murrays Australia Ltd puts all transport operators on notice . Delays, breakdowns and overcrowding have a habit of turning a trip on a public bus into a frustrating experience. But people with disability face a far bigger problem when it comes to public transport: often they can’t get on the bus in the first place. Julia Haraksin tried to book a seat on a Murrays Australia Ltd (Murrays) bus between Sydney and Canberra in August 2009. But when she advised the bus company that she uses a wheelchair, Murrays told her they did not have any wheelchair accessible buses and so could not accept her Disability discrimination decision... Julia Haraksin, Chris Ronalds SC, Camilla Pandolfini and Alexis booking. Goodstone talk to media outside the Federal Court. In a judgment delivered on 14 March 2013, the Federal Court’s Public transport operators no wheelchair accessible buses was Justice Nicholas ruled that Murrays were given plenty of time to meet surprising. had directly discriminated against Ms these standards, and a staggered The question now is: what Haraksin and had breached national introduction was seen as the best happens next? This case was never Disability Standards. way to minimise the costs and about personal gain and Ms Haraksin Justice Nicholas rejected the inconvenience to operators. did not ask for compensation. unjustifiable hardship defence put The deal in relation to buses was Instead, PIAC, acting on Ms Haraksin’s forward by Murrays.