HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
BRUCE LINDSAY MAGUIRE
SYDNEY ORGANISING COMMITTEE FOR THE OLYMPIC GAMES
REASONS FOR DECISION
THE HON WILLIAM CARTER QC
Location of hearing: Sydney
Hearing dates: 8 and 11 August 2000
Date of decision: 24 August 2000
Appearances: Sarah Pritchard of counsel, instructed by the Public Interest Advocacy Centre,
for the complainant Janet Oakley of counsel, instructed by Barker Gosling, for the respondent.
1. THE COMPLAINT
The Sydney 2000 Olympic Games are due to commence in Sydney on 15 September 2000 only a matter of weeks subsequent to the publication of this determination. It is necessary to retrace the process which has occurred in relation to this complaint, not only because it will set the chronological context within which this part of the complaint is to be determined, but also because it assists in defining this part of the complaint in respect of which there was some degree of contention. It is not intended to repeat here all that appears in the decision of the Human Rights and Equal Opportunity Commission ("the Commission") given in Sydney on 30 September 1999 (written reasons dated 18 October 1999) in relation to another part of the complaint which also alleged unlawful discrimination because of the respondent's failure to provide the Ticket Book for seating at the Olympics in braille.
On 7 June 1999 the complainant, who is blind, complained to the Commission that he was unlawfully discriminated against by the respondent in three respects: the failure to provide braille copies of the information required to place orders for Olympic Games tickets; the failure to provide braille copies of the Olympic Games souvenir programme; and the failure to provide a web site which was accessible to the complainant.
Prior to the hearing of the "Ticket Book" component of the complaint on 27 and 28 September 1999 there had been convened a series of Directions Conferences. In the course of one such conference, held on 31 August 1999, the Commission directed that that part of the complaint which related to the failure to provide the Ticket Book in braille be the subject of inquiry at a hearing scheduled for 8-10 September 1999 (later adjourned to 27-28 September 1999) and that the consideration of the remaining issues (including this issue) in the complaint be adjourned to a date to be fixed. This direction is evidenced by a document prepared by the Commission immediately subsequent to the Directions Conference on 31 August 1999 and provided to the parties.
Subsequent to the Commission's determination in respect of the Ticket Book component of the complaint on 30 September 1999, conciliation of the remaining issues was attempted but on 29 November 1999 was unsuccessful. Accordingly, by letter dated 25 February 2000, the Commission gave notice to the parties pursuant to section 83 of the Disability Discrimination Act 1992 (Cth) ("the DDA") of its intention to resume the inquiry on 27 March 2000 into the remaining issues in the complaint of 7 June 1999. On 27 March 2000, a Directions Conference was convened at which it was intimated that the Olympic Games Souvenir programme would be available to the complainant in braille. The inquiry into that part of the complaint which alleged an inaccessible web site was set down for hearing on 3 and 4 July 2000. Other directions were made at the Directions Conference on 27 March 2000.
A dominant concern at this Directions Conference was the request by the complainant's solicitor to the respondent's solicitor that the respondent provide to the complainant certain information relating to the respondent's web site which information was peculiarly within the knowledge of the respondent. It was stated that for the inquiry relating to the inaccessible web site, the complainant had engaged experts who could not complete their assessments unless and until the information requested was supplied by the respondent. I pause to mention that the relevant information has never been provided nor had it been provided by the time of the hearing on 8 and 11 August 2000. By letter dated 4 August 2000, the solicitor for the respondent sought relief from the need to provide the requested information on the basis that it was "highly commercially sensitive information within the knowledge of SOCOG and its contractor". Its contractor was IBM.
Returning to the Directions Conference on 27 March 2000 in the course of which it was reasonably apparent that the sought after information would become available, the focus of the discussion turned to the need for the Commission to issue its summonses to the respondent in order to have the information produced. At the Commission's suggestion it was agreed that the information and any relevant documentation could be provided pursuant to a request by letter rather than by summons. On 31 March 2000, the solicitor for the complainant requested the sought after information by 14 April 2000 with an indication by 7 April 2000 if the respondent was unable or unwilling to supply the requested information. The information sought was:
· a sample page in electronic format from the proposed Results Table on the SOCOG website relating to the Olympic Games and the Paralympic website (the latter request
was abandoned upon advice by SOCOG that it was not involved in the organisation of the Paralympic Games);
· the current content plan for the Olympic website;
· the number of templates to be used;
· the details of the tools used to generate the pages of the Olympic website; and
· detailed calculations of certain "ball park" figures.
It has to be said that the information was sought against the background of a submission made on behalf of the respondent by its solicitors in response to the original complaint dated 7 June 1999 that for SOCOG to make its web site compatible with W3C Guidelines (a matter to be referred to below) "SOCOG would have to retrain many of its staff and redraw its entire development methodology.Such expense would be an unjustifiable financial imposition."
At the hearing, counsel for the respondent indicated that the case for the respondent was that it had not unlawfully discriminated against the complainant in breach of the DDA but that, if it had, a requirement that the web site be made accessible to the complainant would constitute an unjustifiable hardship within the meaning of section 11 of the DDA. The major thrust of the evidence called for the respondent at the hearing on 8 and 11 August 2000 was focussed on this issue. In compliance with directions given on 27 March 2000, the complainant's witness statement dated 29 April 2000 was delivered on 1 May 2000. In that statement, the complainant asserted that on a visit to the SOCOG web site on 17 April 2000, some changes had been made to the site since his original complaint but that in certain other respects the site remained inaccessible. The statement requested that the Commission make the following orders or declarations:
1. That SOCOG include ALT text on all images and image map links on the website;
2. That SOCOG ensure access from the Schedule page to the Index of Sports; and
3. That SOCOG ensure access to the Results Tables on the web site during the Olympic Games.
To put this in context, the complainant had alleged that, prior to the lodgement of his complaint with the Commission, he had on 7 June 1999 spoken to SOCOG personnel in the course of which he had sought information about the availability of the Ticket Book in braille and had been told inter alia that "blind people can access information if it is available on the internet." He had replied "That is not correct. We can only access information if it is presented in accordance with international accessibility guidelines. The SOCOG website does not comply with those guidelines, so a lot of information is not accessible to me." The reply allegedly was to the effect that a blind person would have to engage the assistance of a sighted person to assist him. Upon receipt of the complainant's material and in the period 27 March 2000 - 1 May 2000, the complainant, in correspondence with the respondent and the Commission, complained of the respondent's failure to supply the information sought in its letter dated 31 March 2000 and that, accordingly, the statements of evidence of the two expert witnesses, Mr Worthington and Ms Treviranus, had to be supplied in an incomplete form. The complainant requested that the Directions Conference be reconvened which it was on 17 May 2000. On that occasion, it was indicated on behalf of the respondent that the material sought would be available by close of business on 19 May 2000. This never happened. In the course of the Directions Conference on 17 May 2000 it was alleged on behalf of the respondent that the material contained in the complainant's statement demonstrated that the complaint had changed and that the complaint as formulated by the complainant in his statement of 29 April 2000 was a different complaint from that alleged in his letter of 7 June 1999. This it was said, went to the Commission's jurisdiction to continue to inquire into the complaint in this respect. In the course of submissions it was asserted that the respondent now had to respond to three complaints not one as originally made. This submission had no substance. A reading of the original complaint makes clear the complainant's complaint of an inaccessible web site. His statement dated 29 April 2000 equally makes clear his concern that, in spite of some nominated changes to the web site, the site, on account of the three matters particularised, remained inaccessible to him and that he sought from the Commission the more specific relief specified in the final paragraph of his statement.
The firm view of the Commission in this respect is that the complaint in respect of the web site was always that it was inaccessible to a blind person and that it did not comply with the W3C Guidelines for accessibility. In spite of some changes made to it in the period 7 June 1999 - 29 April 2000 the complaint on 1 May 2000 was that the site remained inaccessible in certain respects particularised. At the hearing on 8 August 2000 in the cross-examination of the complainant, it emerged that in respect of the ALT texts (the first matter referred to the complainant in his statement of 29 April 2000) the respondent alleged that further changes to the site had cured the complaint of inaccessibility on that account and that access to the Index of Sports from the Schedule was available and had always been available by a different route; namely, by entering the URL for each sport directly into the web browser. On 27 July 2000 by letter this information, so it seems for the first time, was conveyed to the complainant by the respondent's solicitor. That letter indicated what the URL was for 36 nominated sports. In respect of the third matter - access to the Results Tables - the respondent's witnesses for the most part focussed on the matters allegedly referable to the unjustifiable hardship point.
In the result therefore it is clear beyond doubt that whilst the original complaint was broadly drawn - the web site was effectively inaccessible to a blind person - with the passage of time since 7 June 1999 some changes to the site by the respondent and its contractor meant that the complaint is now particularised and/or narrowed down to a complaint of inaccessibility on account of three specific issues, two of which the respondent says cannot now be supported. The third, it is said, does not constitute unlawfulness on the respondent's part because to make the site comply (in respect of the Results Tables) would be an unjustifiable hardship. In short, the complaint is now and has always been the same complaint as that alleged in the complainant's letter of 7 June 1999.
Subsequent to the Directions Conference on 17 May 2000, the complainant's solicitor continued to press unsuccessfully for the supply of the information sought by the complainant in the letter of 31 March 2000. The events subsequent to 17 May 2000 are collected in the Commission's decision given at a further Directions Conference on 20 June 2000 when the respondent sought to vacate the hearing dates 3 and 4 July 2000 which had been set on 27 March 2000. On that occasion, the dates set for the hearing were maintained and at a further Directions Conference on 29 June 2000 a concession was granted to the respondent to defer its cross-examination of the complainant's witnesses were that necessary. The complainant continued to press the respondent to provide the information sought which had been promised at the Directions Conference on 17 May 2000 by close of business on 19 May 2000.
The Commission convened the hearing in Sydney on 3 July 2000. At its commencement, counsel for the respondent submitted that amending legislation which became effective from 13 April 2000 and which transferred jurisdiction to the Federal Court of Australia in respect of complaints the hearing of which had not commenced in the Commission prior to that date, denied jurisdiction to the Commission in respect of this complaint. A ruling by the Commission that this complaint was not caught by the amendment because of the directions given on 31 August 1999 was met with counsel's statement that, in accordance with the respondent's instructions, it was intended to seek judicial review in the Federal Court. The Commission thereupon was required to adjourn the further hearing sine die.
Thereupon the complainant (not the respondent) sought certain relief in the Federal Court to test the correctness of the Commission's ruling as originally foreshadowed by the respondent. On 10 July 2000 Hely J made certain orders. On 19 July 2000 the Commission at the request of the parties concerned a further Directions Conference at which 8 and 11 August 2000 were the dates set for hearing. Meanwhile, Hely J on 3 August 2000 had made orders the effect of which was to terminate the proceedings in the Federal Court.
As pointed out above the solicitors for the respondent advised on 4 August 2000 that "the provision of the HTML source code of the Results Pages" would not be made available because it was "highly commercially sensitive information". Nor was the information sought by the complainant since 27 March 2000 made available to the Commission and/or the complainant. Accordingly, the hearing component of the Commission's inquiry was completed in a chronological context the dominant feature of which is that the commencement of the Sydney Olympic Games is imminent.
It is unnecessary to repeat here the relevant details which touch on matters personal to the complainant. They are set out in the Commission's written reasons dated 18 October 1999 for its determination of 30 September 1999 concerning the Ticket Book. They remain valid. Suffice to say that the complainant is competent and experienced in the use of computer technology. He frequently accesses the World Wide Web by the use of a refreshable braille display and a web browser. Access to the internet has had an enormous beneficial impact on his lifestyle. He can now access "an incredible array of information" which as a blind person he could never have had access to. His interest in the Sydney Olympic Games is patent as is his commitment to be able to access Games information on the respondent's web site in a manner which is non-discriminatory.
2. THE STATUTORY PROVISIONS
It is the case for the complainant that in failing to provide to him its web site in a manner by which he, a blind person, could access the information contained within it, the respondent acted unlawfully in breach of section 24 of the DDA. Section 24 provides:
24 Goods, services and facilities
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the
ground of the other person's disability or a disability of any of that other person's associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making
facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.
By section 4 of the DDA "services" is defined to include:
(b) services relating to entertainment, recreation or refreshment.
It is unnecessary to repeat what is said in the Commission's decision relating to the respondent's provision to the public of the Ticket Book and the information which was contained in it and to the relationship between that and section 24 of the DDA. The internet is now a well established phenomenon, its capacity to store information of immense proportions to which one can have access is a fact of life. The respondent in creating its own web site sought to include in it a considerable body of information to which any person could have access. The provision of the web site was a service relating to the provision by the respondent of information relating to the largest and most significant entertainment or recreation event in the history of this country. For the respondent it is submitted that the form and content of the web site is not a "service" within the meaning of the DDA. It is submitted that the site is merely a "promotional" website which publishes "promotional" material. That description is in part valid but the site is much more. It is intended to provide a source of information concerning a large body of variable content which can be distributed to and accessed by persons across the world. The provision of information by the respondent via its web site is, in the Commission's view, a service relating to the entertainment which the respondent will provide to the world in the course of the Sydney Olympic Games. It is in the Commission's view comprehended by section 24 of the DDA. For the complainant it is said that to provide that service or facility in a manner which is accessible by a sighted person but inaccessible or only partly accessible by the complainant, a blind person, is to discriminate against him on the ground of his disability. It is not in issue that his being blind since birth is a disability as defined by the DDA. Accordingly, the respondent's failure to provide an accessible website is allegedly unlawful in that it constitutes a breach of section 24 of the DDA. The complainant also submits that the discriminatory conduct of the respondent was both direct (section 5 of the DDA) and indirect (section 6 of the DDA).
Section 5 provides:
5 Disability discrimination
(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if,
because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the
same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of
the fact that different accommodation or services may be required by the person with a disability.
Section 6 provides:
6 Indirect disability discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
The respondent's case is in part based on section 24(2) of the DDA which relieves against a finding of unlawfulness if the provision of goods and services in a manner which is non-discriminatory would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.
What constitutes unjustifiable hardship is provided for by section 11 of the DDA. Section 11 provides:
11 Unjustifiable hardship
For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities-an action plan given to the Commission under section 64.
The first question therefore is whether the respondent discriminated against the complainant in providing to the complainant its web site in a form which resulted in the site being inaccessible to him or only partly so. The question of ensuring accessibility to the World Wide Web by persons with disabilities was addressed in the World Wide Web Content Accessibility Guidelines which are generally referred to as the W3C Guidelines. In short, alongside the evolving development of the internet, the question of facilitating accessibility by relevantly disabled persons to it was likewise the subject of professional and scientific development. It too was to become a matter of world wide interest. The development of guidelines has been in progress since at least 5 May 1999. It has been pointed out above that, in its letter to the Commission dated 18 June 1999 in response to the complainant's complaint, the respondent claimed that the W3C guidelines were then of recent origin and appeared subsequent to the planning and "substantial implementation" of its site. On that basis it was asserted that to ensure compliance with the W3C guidelines would constitute an unjustifiable hardship.
From the evidence it is implicit that the respondent's web site is and has been in the process of continual development. Indeed it is alleged, particularly in relation to the provision of ALT text, that this has been ongoing. A letter from IBM to the respondent's Chief Information Officer dated 11 August 2000, the final day of the hearing, to which later reference will be made, asserts that ALT text was being added to images on the SOCOG website and "expected" that this task "would be completed by 8 August 2000". This date was the first date set for the hearing (see Exhibit 15).
The use of ALT text on images and image map links is a matter comprehended by the W3C Guidelines. At the hearing and in the course of cross-examining the complainant, counsel for the respondent put to the complainant that as at 8 August 2000 "ALT text has been included on all images and image maps." This was one of the significant deficiencies alleged by the complainant in his statement of 29 April 2000. In his response to counsel, the complainant stated that whilst there are now ALT texts in respect of images and image maps links which were not there before there remain links which still do not have ALT text. This is confirmed by the evidence of Ms Treviranus.
I am satisfied that on the evidence of the complainant there have been modifications to the site by the provision of some ALT text but that it remains incomplete and accordingly the complainant's access to the information contained on the site remains restricted pro tanto.
As pointed out earlier it was revealed by a letter to the complainant dated 27 July 2000 from the solicitor for the respondent, some few weeks after the date set for the original hearing (Exhibit 5), that the complainant's concern that he could not access the Index of Sports from the Schedule was met by the fact that such access was possible by inserting the URL for each of the 37 sports in the web browser. This of course assumes the knowledge of the URL for each sport. This was, according to the complainant, an imperfect process for accessing the Index because "that is not the way that people use web pages". He was referring to a sighted person's use of the internet. In short, if the access to the Index was available to him as it would be to a sighted person all that would be required is to click the mouse or press the enter key on the link such as "Go to Sports Index" and access would occur. The alternative provided to the complainant by the letter dated 27 July 2000 (Exhibit 5) required of him that on each occasion he needed to access a particular sport he needed to enter the URL for the particular sport provided it was available to him in convenient form or had been retained in his memory. He regards that as an imperfect mode of access and one that need not be attempted by a sighted person.
In respect of the third matter relating to inaccessibility, it is conceded that the Results Tables in the form proposed will be inaccessible but that it would constitute unjustifiable hardship to require the respondent to render the same accessible to the complainant. For the respondent, counsel put it to the complainant that results will become available from other sources such as radio and print media which, in respect of the latter, he could scan into his computer. This would be a significantly less favourable process in order to access results.
The case for the complainant is that he has been discriminated against in the provision of services offered to the pubic by the respondent via its web site because the respondent has treated him and proposes to treat him less favourably, in circumstances which are the same or are not materially different, than it has treated or proposes to treat a sighted person. This less favourable treatment was and is because of the fact that he is blind.
In all material respects this claim of discrimination is the same as that made in respect of the Ticket Book and determined by the Commission in its earlier decision in respect of that part of the complaint.
At the time of the making of the complaint and at the time of his statement of 29 April 2000, the complainant was clearly the recipient of less favourable treatment by the respondent in that he was unable to access the services offered by the respondent by means of its web site or at best he was offered imperfect or limited access only because of the manner in which the services were made available and this less favourable treatment was because of his disability. In the period since 29 April 20000 the degree of inaccessibility has progressively but only marginally been reduced. As at the date of hearing the "less favourable" treatment of him in material respects has remained. ALT texts which are required remain to be provided; access to the Index of Sports from the Schedule remains unavailable (the proposed alternative is both unorthodox and cumbersome and need not be resorted to by a sighted person); the Results Table remains and will remain inaccessible to the complainant.
The detriment to the complainant on account of these matters is very significant. His mastery of computer technology operates at a high level yet because of his being blind he is denied access or obtains only limited access to the respondent's web site in relation to items of information which are important to him and which he reasonably desires to have. This detriment is the direct consequence of his inability or limited ability to access the information because of his lack of sight and that consequence is the product of the discriminatory manner in which the respondent provides the relevant service. In the Commission's view, the respondent has discriminated against the complainant in breach of section 24 of the DDA in that the web site does not include ALT text on all images and image maps links, the Index to Sports cannot be accessed from the Schedule page and the Results Tables provided during the Games on the web site will remain inaccessible. The respondent has submitted that the complainant has not been the subject of direct discrimination because he has not been treated less favourably in respect of the web site than a person who does not suffer the complainant's disability. This submission is rejected.
The respondent in constructing its web site (and its Ticket Book) was intending to offer a service to the public. In the case of the web site that service consisted in the provision of a large body of information. By the form and content of its web site the respondent sought to make the information available. Because of the manner in which that information was made available, it could be accessed by a sighted person. Because of the manner which that information was made available it could not be accessed by a blind person because of his or her disability. This meant that, in respect of the same information, the respondent, in the manner in which it used its computer technology to service the needs of the public to have access to that information, made it available to sighted persons, but it made it unavailable or only partly available to a blind person because of the latter's disability. It follows that, because of his or her disability, the blind person was treated less favourably by the respondent than the sighted person.
That in my view constitutes direct discrimination within the meaning of section 5 of the DDA.
Again in my view the Commission's finding of indirect discrimination in respect of the Ticket Book is valid and applicable in respect of access to the web site and for the same reasons.
Therefore if it be correct that the respondent did not discriminate against the complainant in terms of section 5 it can properly be found that indirect discrimination occurred in terms of section 6.
The respondent in providing access to the information available on its web site imposed upon or required of the complainant that he comply with a "requirement or condition" that he be able to read print. That was a requirement or condition with which a substantially higher proportion of persons without his disability were able to comply. Whilst no specific evidence was given in the current hearing there was evidence given to the Commission in respect of its inquiry in the Ticket Book component of the complaint that the number of blind persons and those who read braille was infinitesimal compared with the number of sighted persons. In any event that fact is so well known that evidence is hardly necessary to establish it.
Nor was it reasonable for the respondent to require the complainant to comply with the condition having regard to the fact that the Olympic Games of which the respondent had the conduct will be a unique event of great historical and cultural significance. Blind as well as sighted persons can be expected to have an equal interest in being able to be participate in and enjoy the events. It is a primary consideration that as far as possible all Australians should have the capacity to share equally in an event of this significance; an alternative source which makes available the same amount or body of information is simply not available. And finally it is clear that the complainant is not nor is he able to comply with the relevant requirement or condition. It follows that the facts support also or in the alternative a finding of indirect discrimination.
3.2 Unjustifiable hardship
In considering the application of section 11 to the facts of the case there is a major issue of fact for decision based on the competing evidence of the alleged expert witnesses called for each side. This issue of fact focuses largely on the question of the degree of difficulty and cost involved in providing access by a blind person to the site or that part of it which will provide the Results Table.
In summary the evidence of the respondent is this:
· The Table of Results is made up of data sourced from a number of different databases of results for each of 37 sporting disciplines.
· The site currently consists of 6,000 pages and approximately 55,000 pages will be generated in the course of the Games.
· There are 37 sports web page templates each with approximately 35 result templates - in total 1,295 templates for results alone.
· The tables of results will contain "wrapped text within cells".
· There will be approximately 6 billion "hits" on the site and the site needs to be fast and highly responsive.
· To reformat the site and its contents in a way which will make the web site accessible to the complainant will in effect require the development of a new or separate site.
· Extensive changes to infrastructure are required; there is a requirement for specialised skills which are limited and expensive; there will be possible adverse impacts
upon the support and maintenance systems.
· One person working 8 hour business days would require 368 days to complete the task properly.
· $2.2 million of additional infrastructure would be required to separately host the additional designs necessary to an accessible Table of Results.
These and other like features mean that to require the respondent to make the site accessible to the complainant would be too onerous.
In short the respondent claims that the difficulty in providing a separately hosted site, its cost and the risks which would be offered to the existing developed site are such as to impose on the respondent a level of hardship which cannot be justified. The evidence called for the complainant can be summarised and contrasted with that of the respondent:
· The number of templates is significantly less than 1295 and the reformatting of the templates will take considerably less than the 2 hours for each alleged by the
respondent. A more realistic estimate for the minor changes required is 10 minutes each; nor is there the need for unique manually generated formats.
· No new infrastructure will be required because it is allegedly in place.
· A team of one experienced developer with a group of 5-10 assistants could provide an accessible site to Level A compliance in 4 weeks.
· Wrapping in each cell can be met by using a simple device namely the inclusion of an invisible end of cell character which would indicate to a blind person the end
of the text in each cell.
· The cost of making the site accessible is a modest amount.
· The number of templates has been estimated at 357 for 28 sports. Additional templates would be required for 37. Because of the failure of respondent to supply
the information requested by letter on 31 March 2000 the number of templates has been estimated.
In short, the evidence of Mr Worthington and Ms Treviranus strongly disputes the thrust of the respondent's evidence which in certain respects is said to contain "a very, very over-inflated estimate".
I will deal with the evidence called for the respondent below. It is necessary to consider first the evidence of Mr Worthington and Ms Treviranus. Mr Worthington's qualifications are extensive. He was the first Web Master for the Australian Department of Defence. He was one of the architects of the Commonwealth Government's internet and web strategy and is a recognised author and contributor to the literature. Ms Treviranus, who is attached to the University of Toronto enjoys an international reputation. She is the manager of the Adaptive Technology Resource Centre (ATRC) at the University and chairs the Authorising Tool Guidelines Group of the World Wide Web Consortium. There is no sound basis for questioning the expertise of Mr Worthington and Ms Treviranus.
The evidence of these witnesses was impressive and convincing, in particular that of Ms Treviranus.
In Ms Treviranus' view, if accessibility had been considered by the respondent when the site was being developed it could have been totally achieved in less than 1 percent of the time consumed in the site's development. She has regularly visited the site and in her view it remains inaccessible in material respects. For instance in her view in some respects the situation has worsened because additional graphic material has been added without ALT text. In respect of the Schedule page, which in her view is completely inaccessible, it could be corrected by a very simple change which would take less than 1 ½ hours. Mr Worthington expressed the view that the correction would take less time than the time which was consumed in the hearing talking about it. In Ms Treviranus' view it would be unnecessary to uniquely and manually generate a new format in respect of the suggested 1295 templates. No new infrastructure would be required; the existing team supplemented with some additional support for a short period would be sufficient. There would be no need to develop and implement a new navigation design. What the respondent suggested would take 25 business days could be effectively completed within a few hours.
It is not intended to detail Ms Treviranus' extensive evidence in every respect. In short in her view the web site can be made accessible in all material respects very simply with a minimum of difficulty, and at a modest cost. By contrast the respondent claims that the task is one of considerable difficulty, extremely time consuming and possible only at inordinate cost. I will detail below my reasons for preferring the evidence Mr Worthington and that of Ms Treviranus to that of Mr Brand and Mr Smeal who were called for the respondent.
Mr Worthington, like Ms Treviranus, has been involved with the issue over a number of months. The requests for the information sought by the letter of 31 March 2000 was no doubt initiated by him to enable more comprehensive assessment to be made for the purpose of completing his expert opinion. In the absence of the information he proceeded to an assessment on the basis of assumptions which in his view were reasonable. In the result there is no substantial difference between the conclusions which he drew and those drawn by Ms Treviranus. There is no satisfactory basis for the Commission rejecting as unacceptable the view of these two very experienced experts on matters relating to the World Wide Web. Mr Brand and Mr Smeal, both of whom conduct consultancy businesses in Sydney and who were engaged only in the days immediately prior to the hearing commencing on 8 August 2000, were required to prepare and give their evidence from positions of relative disadvantage. Their knowledge and experience with the site was necessarily very limited and the evidence of each was effectively based on the need to validate certain information and conclusions given to them by Mr Max Judd of IBM and Dr Ian Reinecke, the Chief Information Officer of SOCOG. Neither were able to confirm the information given to them nor were Mr Judd nor Dr Reinecke called to give evidence. The only information provided by either of the latter two persons was the letter dated 11 August 2000 (Exhibit 15) which purported to assert the truth of the facts provided to Mr Brand and Mr Smeal. This material was unsworn and there was no opportunity by or on behalf of the complainant to question or test its correctness. Mr Brand and Mr Smeal both presented as honourable witnesses and whilst each sought to assert that they supported the conclusions of, in particular, Mr Judd, there was no capacity in either to resist questions based on the evidentiary process to which each was subjected nor did either of them attempt to avoid the obvious weaknesses inherent in their evidence.
Nor were they given access to information of the kind sought by Mr Worthington or Ms Treviranus. The allegation that relevant information was commercially sensitive and not available was raised for the first time on 4 August 2000. It was never labelled as such in the course of the intensive Directions process over which the Commission presided between 27 March 2000 and the commencement of the hearing, nor is it referred to in any earlier correspondence.
Had it been raised it would have been competent to devise a procedure or process which would have protected the commercial sensitivity of the information, assuming of course the information qualified for that description. In my view one could not validly conclude on the evidence of Mr Worthington and Ms Treviranus that the correction of the web site to the point of making it accessible to the complainant and other visually impaired persons was for the respondent an unacceptable imposition. Whether the issue had been addressed at the time the web site was in the process of development or at the time of the complaint or now the evidence of Mr Worthington and Ms Treviranus can only support the rejection of the assertions made by the respondent which purport to convey the notion that the matter was and is too difficult, too onerous, too time consuming, too risky and too expensive. Rather, the clear inference can be drawn from the facts and circumstances that the respondent never seriously considered the issue and only when the hearing was imminent did it attempt to support its rejection of the complainant's complaint by resort to a process which was both inadequate and unconvincing. It remains to consider the provisions of section 11 and their application to the facts of the case.
The provision of an accessible web site for the complainant and other vision impaired persons constitutes a very considerable benefit. He and they could access precisely the same body of information which is available to sighted persons in relation to this event which during its currency will engage the attention of the whole nation. This considerable benefit will be available and the consequential detriment for the respondent will be modest. Indeed, had it sought to address the issue earlier it would have been easily consumed in the course of the development of the site - in Ms Treviranus' view, the additional effort would have less than 1 percent. Even now it will take only 4 weeks to have the site at Level A standard.
Secondly, in assessing whether any suggested hardship is unjustifiable, the nature of the complainant's blindness and its effects in this context are matters of considerable importance. He has been able to minimise the effects of his blindness upon his capacity to access information available on the internet but only if the information is presented to him in an accessible form. SOCOG is a major agency supported by considerable financial infrastructure including Government funding. Whilst no precise assessment can be made of the amount required to be expended to make the web site accessible it will in relative terms be quite modest. The fact that such a cost can be accommodated financially is supported by the evidence and findings made in respect of the Ticket Book component of the complaint.
Finally, reference should be made to the matter contained in section 11(d) of the DDA. By section 60 of the DDA it is competent for a service provider, of whom the respondent by definition is one, to prepare and implement an action plan and to give the same to the Commission (section 64). The action plan as provided for by section 61 must include provisions relating to:
(a) the devising of policies and programs to achieve the objects of this Act; and
(b) the communication of these policies and programs to persons within the service provider; and
(c) the review of practices within the service provider with a view to the identification of any discriminatory practices; and
(d) the setting of goals and targets, where these may reasonably be determined against which the success of the plan in achieving the objects of the Act may be assessed; and
(e) the means, other than those referred to in paragraph (d), of evaluating the policies and programs referred to in paragraph (a); and
(f) the appointment of persons within the service provider to implement the provisions referred to in paragraphs (a) to (e) (inclusive).
The respondent from the time of its formation and involvement in the organisation of the Sydney Olympic Games was as a service provider likely to come into contact with persons with a disability as defined by the DDA. The complainant and those like him who are visually impaired were only one category of such persons. Had the respondent prepared and implemented an action plan with the provisions of the kind set out in section 61 of the DDA that would be a relevant matter in this context. There is no evidence that the respondent prepared and implemented such a plan. An action plan was not given to the Commission. However, it seems to me that no adverse inference should be drawn against the respondent in the event that it failed to prepare and implement an action plan. The issue of whether the respondent can claim unjustifiable hardship remains to be determined by reference to the other matters dealt with in section 11. The several matters have to be balanced one against the other.
In the view of the Commission, the respondent cannot avoid liability for its breach of section 24 of the DDA by its claim of unjustifiable hardship.
Finally, it remains to consider whether, even if the dominant thrust of the respondent's evidence were to be preferred to that of Mr Worthington and Ms Treviranus, the defence of unjustifiable hardship could be sustained. For this purpose one can conclude that there would have been required a number of persons working for a considerable time at significant cost to complete the task. The respondent would allege that with the commencement of the Games imminent it is now impossible for it to render the site accessible.
This raises the question as to the time at which a respondent in the position of SOCOG needs to address the issue if it is to validly claim unjustifiable hardship.
In my view one who has unlawfully discriminated in breach of the DDA cannot delay the final determination of a complaint by the Commission and take advantage of matters consequential upon that delay in order to support its alleged inability to cure its default. The inordinate delay by the respondent in this case is evidenced by:
· Its failure/refusal to provide the information sought by the complainant in its letter dated 31 March 2000.
· Its failure to provide the statements of its witnesses as directed by the Commission.
· Its failure/refusal to reply to correspondence or to return telephone calls in the period 17 May 2000 - 20 June 2000.
· Its attempt to vacate the hearing dates set for 3 and 4 July 2000.
· Its stated intention to pursue an unmeritorious point in the Federal Court at the hearing on 3 July 2000 and its abandonment of the same just weeks later.
· Its failure to provide statements of its expert witnesses on 4 August 2000 - less than one week prior to the adjourned hearing.
· Its unsworn attempt to establish the truth of facts alleged by it as the basis for its claim of unjustifiable hardship on the very last date set for hearing of the matter.
Rather, the question whether a respondent can properly allege and rely upon a claim of unjustifiable hardship has to be considered within a more reasonable time frame. The respondent might have considered its position in relation to the provision of an accessible web site which complied with W3C Guidelines:
· in the course of considering the preparation and implementation of an action plan under the DDA in the course of its organisation of the Sydney Olympic Games; or
· upon receipt of the complaint or on about 7 June 1999; or
· at any time subsequent to the notice by the Commission in February 2000 of its intention to continue to inquire into this part of the complaint.
Had the respondent sought to consider its position in relation to unjustifiable hardship at one or other of those times the evidence of the respondent relied upon at the hearing would not have been sufficient to support the requirements of section 11 of the DDA. It cannot now be seen to be advantaged by its own default on account of the matters set out above. In the Commission's view the issue whether unjustifiable hardship can in a particular case relieve against a finding of discrimination cannot be seen to vary or alter with the passage of time. Whether there has been discriminatory conduct and whether relief is available under section 24(2) has to depend upon the relevant matrix of fact which is at the source of the complaint. It is the making of the complaint which activates the inquiry not only in relation to the issue whether there has been discrimination but also whether hardship can be relied upon. It would seem absurd to hold that the "defence" may not be available at one point but be a decisive factor at a later time.
The only relevance of time in this context is in relation to the form of relief which might be considered appropriate. But finally on this point it is necessary to confirm the view that on the acceptable evidence of Mr Worthington and Ms Treviranus there is no good reason to conclude that the sought after access cannot be available to the complainant either by or during the course of the Sydney Olympic Games.
The only remaining matter is that raised by the respondent namely that any discriminatory conduct in respect of the web site was not that of the respondent but that of its contractor IBM and there has been no complaint against IBM. The web site is the respondent's site. It has engaged within its organisation a person who is identified as the person in charge of its information technology. Clearly it has the control of the information to be posted on the site. All relevant matters in relation to the site are within its control. In the course of one Directions Conference (20 June 2000) the solicitor for the respondent sought to vacate the set hearing dates because of the unavailability of its relevant IT personnel. In the Commission's view there is no sound basis for the respondent's attempt to avoid an adverse finding against it. The fact that it engaged a consultancy to assist it in furnishing information does not avoid the fact that it was the respondent's site, the information was within its control, it was its information which it seeks to distribute via its site. No evidence was given by the respondent which contests those issues of fact.
Accordingly, the complaint is substantiated and it is proper for the Commission to make the following determination pursuant to s.103(1) of the DDA:
1. A declaration that the respondent has engaged in conduct that is unlawful under section 24 of the DDA in that it has provided for the use of the complainant
a web site which because of his blindness is to a significant extent inaccessible.
2. A declaration that the respondent do all that is necessary to render its web site accessible to the complainant by 15 September 2000 by:
(i) including ALT text on all images and image map links on its web site;
(ii) providing access to the Index of Sports from the Schedule page; and
(iii) providing access to the Results Tables to be used on the web site during the Sydney Olympic Games.
If the respondent does not comply with the above declaration either by the commencement of the Games or in the course thereof it is apparent that the complainant will suffer loss and damage for which compensation might be assessed and awarded. Accordingly, in the event of non compliance or only partial compliance by the respondent, the complainant should have the opportunity of reopening the question of the appropriate relief which the Commission should order. Therefore, having made the above determination, I adjourn this matter in case it is necessary for the complainant to consider whether compensation should be ordered and I grant the complainant leave to approach the Commission to have the matter relisted to consider this issue were that necessary.
I certify that this and the preceding twenty three (23) pages is a true copy of the Reasons for Decision of the
Honourable W. J. Carter QC, Inquiry Commissioner.
Date: 24 August 2000