Supreme Court confirms that Owners Corporations provide services under the Equal Opportunity Act

Owners Corporations are service providers for the purposes of the Equal Opportunity Act 2010 (EO Act) and therefore are required to make ‘reasonable adjustments’ to common areas for tenants and visitors with disabilities.

Background

Anne Black is the owner and occupier of a unit in an apartment complex owned and maintained by two Owners Corporations. After purchasing her apartment Ms Black became physically disabled and reliant on a mobility scooter and/or wheelchair. She sought that the Owners Corporations make adjustments to, amongst other things, several doors in the apartment complex to make them automatic or sensor activated so she could use them. The Owners Corporations declined those requests.

VCAT

Ms Black brought a proceeding in the VCAT alleging discrimination and seeking orders that the Owners Corporations undertake the modifications. Ms Black alleged that the Owners Corporations discriminated against her in breach of section 44 of the EO Act and failed to make reasonable adjustments for her disability in breach of section 45 of the EO Act. Section 44 of the EO Act prohibits discrimination in the provision of goods and services, and s 45 of the EO Act provides that a service provider must make reasonable adjustments for a person with a disability.

The Owners Corporations in turn contended that they did not provide services such that sections 44 and 45 would apply to them, and that the only section of the EO Act that did apply to Owners Corporations was section 56. Section 56 provides that in certain circumstances, including that the alterations be at the expense of the person seeking them, an Owners Corporation must allow a person to make reasonable alterations to common property to meet their special needs.

The parties agreed the VCAT should answer some preliminary questions in the matter. One of those questions was whether or not the Owners Corporations provided services to Ms Black for the purposes of sections 44 and 45 of the EO Act. This question was answered in the affirmative by the VCAT. The Owners Corporations appealed this decision to the Supreme Court: Owners Corporation OC1-POS539033E v Black [2018] VSC 337.

The decision

The primary questions of law on appeal were whether the Owners Corporations provided a service for the purposes of sections 44 and 45 of the Act or whether section 56 ‘exhaustively and exclusively regulated discriminatory conduct under the EO Act concerning alterations to common property for which an Owners Corporation is responsible’.

Justice Richards found that Owners Corporations did provide a service within the meaning of section 44 of the EO Act. Her Honour found that ‘services’ was intended to have a broad meaning and included the provision of services in relation to common property, such as managing, administering, repairing and maintaining it. As such, under section 45 of the EO Act, the Owners Corporations were obliged to make reasonable adjustments to common areas.

In so finding, her Honour also found that section 56 did not exclusively and exhaustively regulate the conduct of Owners Corporations in relation to common property but rather that provision overlapped with other provisions, such as sections 44 and 45, to eliminate discrimination to the greatest extent possible.

In coming to her decision, her Honour reiterated that the EO Act was remedial legislation that is to be given a beneficial, liberal interpretation. As such, it should be interpreted to give the widest possible effect to provisions that prohibit discrimination and promote equality, and therefore there was little room to read down general words such as ‘services’. This approach, her Honour said, was supported by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), which, in section 8, includes the right to equal and effective protection against discrimination. Section 32 of the Charter provides that statutory provisions must, as far as possible consistent with their purpose, be interpreted in a way compatible with human rights. In addition, her Honour rejected the argument put by the Owners Corporations that there was a private/public demarcation in the EO Act such that the Act only regulated discrimination in specified areas of public life, instead finding that there was no such clear delineation in the Act and in fact many intrinsically private areas of activity (such as employment and the provision of accommodation) are the subject of the prohibitions against discrimination and the positive obligations to make reasonable adjustments.

The matter was remitted to the VCAT to decide if the adjustments sought by Ms Black were reasonable.