Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Short v Transport for NSW [2021] NSWCATAD 367 Hearing dates: 3 May 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Prof. J Goodman-Delahunty, General Member Decision: The application is dismissed. Catchwords: HUMAN RIGHTS – anti-discrimination - definition of 'services' – age discrimination – disability related discrimination – government functions – statutory duty Legislation Cited: Anti-Discrimination Act 1977 (NSW) New South Wales Civil and Administrative Tribunal Act 2013 (NSW) Roads Act 1993 (NSW) Transport Administration Act (NSW) 1988 Cases Cited: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Rainsford v Victoria (2007) FCA 1059 State of New South Wales v Whiteoak (2014) NSWCATAP 99 Wright v Commissioner of Police [2014] NSWCATAP 67 Texts Cited: Macquarie Dictionary (Online Ed) Category: Principal judgment Parties: Graham Short and Ann Short (Applicants) Transport for NSW (Respondent) Representation: Graham Short and Ann Short (In person) Ms J Seymour (Counsel for the Respondent) File Number(s): 2020/321549 Publication restriction: None REASONS FOR DECISION 1. In this matter the applicants, Mr Graham and Mrs Ann Short (the 'applicants'), allege the respondent, Transport for NSW (the 'respondent'), discriminated against them on the grounds of age and disability in the area of goods and services, namely the removal of median strips at two pedestrian crossings in Cremorne, in contravention of ss49M and 49ZYN of the Anti-Discrimination Act 1977 (NSW) (ADA). 2. The respondent denies that it provided services to the applicants within the meaning of ss 49M and 49ZYN of the ADA. It further submits that if the Tribunal finds that the respondent provided a service, the applicants have not been subjected to either direct or indirect discrimination in terms of ss 49B and 49ZYA of the ADA. 3. The parties agreed at the commencement of the hearing that the applicants' claim is one of indirect discrimination. Background to the Claim 1. On 30 April 2020, the applicants made a complaint to the President of the then Anti-Discrimination Board of New South Wales (now Anti-Discrimination New South Wales) against the respondent ('the complaint'). The complaint was accepted by the President on 15 May 2020 pursuant to s89B of the ADA. 2. The complaint primarily concerns the removal of median strips at two pedestrian crossings on Military Road at Cremorne, at Cabramatta Road and Spofforth Street. The applicants allege that the removal of the median strips constitutes discrimination against aged and disabled pedestrians who are unable to cross a '4-lane road' in the allocated time. The respondent disputes the two median strips were removed, rather only one was removed from one pedestrian crossing where the tidal flow was installed at Cabramatta Road ('Cabramatta Road pedestrian crossing'). No changes were made at Spofforth Street. 3. In a response to the complaint the respondent on 30 July 2020, said the tidal flow installation on Military Road was the exercise of a statutory function and does not constitute a 'service' under the ADA. However, if the provision of tidal flow was a service, the respondent contends it is not refusing to provide such a service or imposing terms on the applicants to access the service and has not engaged in unlawful discrimination on the grounds of age or disability. 4. Unsuccessful attempts to conciliate the matter led to the complaint, on 4 November 2020, being referred to the Tribunal pursuant to s93C(b) of the ADA. 5. We have adopted a useful summary in relation to the complaint as outlined in the respondent's submissions for ease of reference in these reasons for decision. 'The complaint is about an alteration of traffic management arrangements arising from the installation of a tidal flow on Military Road at Cremorne as part of the B-Line Project undertaken by Transport for New South Wales. One alteration was the removal of a median strip at the Cabramatta Road pedestrian crossing. The applicants assert that this change unlawfully discriminates against aged and disabled persons. The applicants also appear to suggest that Transport NSW should have undertaken other actions at the Cabramatta Road pedestrian crossing, including installation of a puffin crossing (a type of pedestrian crossing that senses traffic moving in the pedestrian crossing); and/or increased enforcement activities through the installation of a red light/speed camera. The B-Line Project was a Transport for New South Wales project with the aim of providing a frequent and reliable bus service operating between Mona Vale and Wynyard with 10 stops at Mona Vale, Warriewood, Narrabeen, Collaroy, Dee Why, Brookvale, Manly Vale, Spit Junction, Neutral Bay Junction and Wynyard. B-Line bus services provide more seats, more on-board comfort and more services, more often. Other benefits include in-seat USB chargers and priority seating for people with access needs. As part of the B-Line Project, alterations were made to traffic management along the B-Line bus route to improve safety and traffic flow at a number of locations along the road corridor, including the Cabramatta Road pedestrian crossing. The intersection of Military Road and Spofforth Streets is signalised with a signal-controlled pedestrian crossing. Contrary to the applicants' evidence, the pedestrian crossing at this location has not been altered as part of the B-Line Project. As part of the tidal flow installation, to enable the implementation and operation of the tidal flow movable medians and the reprioritisation of lanes, the central median forming part of the existing Cabramatta Road pedestrian crossing was removed, including the central median strip and traffic signal posts, lanterns and pedestrian button located on the median strip. …' 1. The applicants have identified that the conditions which were imposed on them included: 'The subject condition, we assert TFNSW made operational decisions that imposed, in the provision of its services, on Military Road at Cremorne, is the ability by us, aged pedestrians, to safely cross the road, in 28 seconds at the two signalised crossings provided, namely Military Road at [deleted] and Military Road at Cabramatta Road.' 1. The applicants submit that the subject condition could not be met because from its outset the service was defective and unsafe. The applicants identify the respondent ignoring guidelines, its audit and a lack of response/refusal to address safety issues raised and three subsequent pedestrian casualties since the commencement of the changes. The applicants submit that the tidal flow has increased their anxiety when crossing Military Road and lowered the semblance of amenity, by increasing traffic speed while removing usual safety features. 2. The applicants seek orders pursuant to s108 of the ADA in the following terms: 1. The complaint substantiated in whole. 2. An order that the respondent pay costs including of the applicants. 3. An order that the respondent decommission the tidal flow system on Military Road at Cremorne and reinstate previously installed safety features which include a raised median strip and median strip push button light signals. Evidence 1. The applicants relied upon the following documentation: 1. Document filed 9 December 2020 - A1. 2. Bundle filed 16 March 2021 - A2. 1. The following amendments were made to A2 following objection from the respondent: * (ii) on page 2 to read 'only in relation to the Cabramatta Road crossing. * Page 3 delete 'Spofforth Street' and 'undulated pavement'. * Delete Annexure F (not probative). * Page 4 delete photos and the paragraph 'Police enforcement … - 28/7/2017'. * Delete Annexure S and Annexure G. * Delete photos (x 4). 1. The respondent relied upon a statement of Mr Carl Yates dated 13 April 2021. 2. Both parties relied upon written submissions. The Relevant Provisions of the ADA 1. The applicants allege the respondent discriminated against them on the grounds of age and disability. Discrimination in respect of age and disability in relation to the supply of goods and services is unlawful pursuant to s49M and 49ZYN of the ADA. 49M Provision of goods and services (1)It is unlawful for a person who provides, for payment or not goods or services to discriminate against a person on the grounds of disability - (a) by refusing to provide the person with those goods or services, or (b) in terms on which the person is provided with the goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 49ZYN Provision of goods and services It is unlawful for a person who provides, for payment or not goods or services to discriminate against another person on the grounds of age - (a) by refusing to provide the person with those goods or services, or (b) in terms on which the person is provided with the goods or services. … 1. Section 4 of the ADA defines 'services' as follows: Services include: (a) services relating to banking, insurance and the provisions of grants, loans, credit or finance, (b) services relating to entertainment, recreational refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. 1. Section 49B of the ADA sets out what constitutes discrimination on disability grounds. (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator— (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability— (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 1. Section 49B of the ADA sets out what constitutes discrimination on disability grounds. (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if the perpetrator— (a) on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group. … The applicants' submissions as to whether the respondent provides a 'service' 1. In the applicants' written submissions in reply and during the hearing they assert that the conduct complained of was that the respondent provided a service. The applicants submit: '1 … that, of TFNSW functions in Schedule 1 of the Transport Administration Act, at least those at 1(c) and 1(d), concerning planning, oversight and delivery of transport infrastructure, and co-ordination of capital works programmes and budgets, involve the provision of a service. Relevantly to the complaint, the applicants submit that the installation of pedestrian crossings and associated lights are a service provided by TFNSW. Pedestrian crossings and associated lights enable pedestrians to cross roads safely, as is made clear by the terms of Transport for NSW Traffic Signal Operation (New South Wales). 2 On the nature of the complaint, the applicants' complaint is one of indirect discrimination. It is not one of direct discrimination. 3 On the TFNSW's provision of a service, the applicants' complaint is not that TFNSW discriminated by refusing to provide services, but that it discriminated in the terms on which it provided the services. 4 On the relevant requirement or condition, the applicants agree that the requirement or condition that they were required to comply with is: That pedestrians complete their crossing of Military Road at the Cabramatta Road pedestrian crossing, on foot without a motorised wheelchair or other aid, within 24 seconds.' The respondent's submissions as to whether it provides a 'service' 1. The respondent is established under the Transport Administration Act 1988 (NSW) (TAA). As part of its statutory functions, the respondent undertakes statutory traffic management and road functions pursuant to both the TAA and the Roads Act 1993 (NSW). 2. The respondent submits that the works undertaken as part of the B-Line Project of which the applicants complain, including changes to the Cabramatta Road pedestrian crossing, were undertaken pursuant to the respondent's statutory functions. It says that the works undertaken are not 'services' for the purpose of sections 49M and/or 49ZYN of the ADA. 3. The respondent contends: 'The complaint concerns the design of, and decisions made, as part of the B-Line Project and works undertaken by Transport for New South Wales and former Roads and Maritime Services (RMS) which merged with Transport for New South Wales, to alter traffic flow and amend interactions between road users in response to the B-Line Project. Road users include public transport services, private vehicles, freight vehicles, cyclists and pedestrians. … Transport for New South Wales accepts that certain public transportation services provided by the transport group of agencies may fall within s4 of the ADA, particularly where public transport users are required to pay fares and are specifically transported between two destinations of their choosing. However, traffic management more broadly, which addresses the interaction between all types of road users (of which public transportation is only one aspect), is fundamentally different to the provision of public transportation services to passengers. Transport for New South Wales submits that these statutory traffic management functions, including the provision of a pedestrian crossing (in whatever location and form) fall within the category identified by the High Court in IW of government functions which cannot be considered 'services'. The function relating to traffic management (and consequent alterations to pedestrian crossings in the present case) does not meet the test in Rainsford. It is not a function to benefit a particular class of person. Rather, it is a function directed at safely managing the interaction between different classes of road users. If pedestrians are receiving a 'service' from Transport New South Wales in the provision of a pedestrian crossing, then it would follow that persons driving private vehicles on Military Road are also receiving a 'service' from Transport for New South Wales. It is submitted that it is not the intention of the ADA to apply to the provision of these types of government functions.' 1. In relation to other measures sought by the applicants, including a puffin crossing and red light and/or speed cameras, the respondent says these are not 'services'. They involve the discharge of statutory functions in policy/design positions informed by technical experts and guidelines. The relevant law concerning 'services' for the purposes of the ADA 1. In ss 49M and 49ZYN of the ADA, "services" in the plural is used not the singular form of the word. The term "services" is capable of broad application. The Macquarie Dictionary (Online Ed) gives only one relevant definition of the plural form: "12. (often plural) the performance of any duties or work for another; helpful activity: medical services.". That dictionary does provide the following relevant definitions of "service": "1. an act of helpful activity. 2. the supplying or supplier of any articles, commodities, activities, etc., required or demanded. 3. the providing of, or a provider of, a public need, such as communications, transport, etc. ... 5. the supplying or a supplier of water, gas, or the like to the public. ..." 2. Dawson and Gaudron JJ in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at [23] said that "services" should not be given a narrow construction unless that is clearly required by definition or context. Section 4 of the ADA provides an inclusive definition, not what is excluded. Since the matters included in the definition all fall within the ordinary notion of services the definition is to be taken as signifying everything which falls within that notion. And as neither the terms nor the content of ss49M(1) and 49ZYN(1) of the ADA provide any contrary indication, "services" is to be read as having its ordinary and broad meaning: IW at [23]. We adopt these reasons. 3. In IW at [23] the term 'services' has a wide meaning, at [12] the following was said: 'It is to be given 'a fair, large and liberal' interpretation rather than one which is 'literal or technical' (40). Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term 'service', read in the context of the Act and its object, is capable of applying to an activity is a 'service' for the purposes of the Act.' 1. In Rainsford v Victoria (2007) FCA 1059 at [72]; the service must be "helpful or beneficial to a relevant class of persons to which the person alleging discrimination belongs". 2. Not all government functions can be considered 'services'. The High Court in IW found the public benefit derived from the execution of a statutory duty does not equate to the provision of a service (see IW at [29]-[31]). The general application of this reasoning is apposite in this matter. 3. When examining the term "services" Wright J in State of New South Wales v Whiteoak [2014] NSWCATAP 99 said: 156. Although, when "services" are provided, the person to whom they are provided receives a benefit, it does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to "services" provided to that person. Neither the definitions referred to above nor the illustrations given in s 4(1) support the conclusion that merely carrying out activities which may, but also may not, have a consequence which is beneficial for a person should always be said to amount to providing services to that person. Indeed, if such an approach to the construction of "services" were adopted, it might well lead to the error, referred to above, of construing s 19 so broadly that every instance of discrimination constituted by differential, detrimental treatment on the ground of race would be unlawful under that section and the remaining prohibitions in Part 2 of the AD Act would be unnecessary. It could also lead into the error of ignoring the word used in the statute, namely "services", and substituting for them an imprecise definition of "services" such any activity which is helpful or beneficial. Thus, answering the question whether classification of inmates can be said to be helpful or beneficial will not, by itself, determine whether classification of inmates constitutes "services" within the meaning of s 19. 157. Furthermore and as noted above, "services" in s 19 only occurs as something that is or could be provided. The word "provide" is defined in the Macquarie Dictionary as: 1. to furnish or supply. 2. to afford or yield ... 158. Both of these meanings convey the essential notion of making something available. They do not suggest in any way that "provide" includes imposing something on a person. Thus, if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances. 159. Finally, the provisions of s 19 read together with s 7 of the AD Act establish that: (1) It is the alleged perpetrator, to use the language of s 7, who must provide the services; and (2) The services must be provided to the class of persons who are in the same circumstances as, or circumstances which are not materially different from, those of the aggrieved person. 160. Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons. When a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to "services" being "provided". Subject to any contrary requirement or approach in the authorities, providing "services" should be construed accordingly. 161. At this point, it is necessary to consider whether the authorities, including those referred to in grounds 3 and 5 of the appellant's notice of appeal, require a different conclusion to that reached in the preceding paragraph as to the proper construction of "services" in s 19. … 176. Although the majority who dismissed the appeal did not all agree on the construction and application of the word "services", the reasons for judgment of Brennan CJ and McHugh J, Dawson and Gaudron JJ and Gummow J and their conclusions in that particular case do not require a different conclusion on the proper construction of s 19 to be reached from that set out above. 1. Wright J then found at [160]: Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons. 1. The objects of the TAA are: 2A Objects of Act The objects of this Act with respect to the administration of the transport services provided to the people of New South Wales include the following— (a) to provide an efficient and accountable framework for the governance of the delivery of transport services, (b) to promote the integration of the transport system, (c) to enable effective planning and delivery of transport infrastructure and services, (d) to facilitate the mobilisation and prioritisation of key resources across the transport sector, (e) to co-ordinate the activities of those engaged in the delivery of transport services, (f) to maintain independent regulatory arrangements for securing the safety of transport services. 1. The objectives of the respondent are set out in s3D of the TAA as follows: 3D Objectives of TfNSW The objectives of Transport for NSW are as follows— (a) to plan for a transport system that meets the needs and expectations of the public, (b) to promote economic development and investment, (c) to provide integration at the decision-making level across all public transport modes, (d) to promote greater efficiency in the delivery of transport infrastructure projects, (e) to promote the safe and reliable delivery of public transport and freight services. 1. The functions of the respondent are set out in Schedule 1 to the TAA as follows: Schedule 1 Functions of Transport for NSW Part 1 General functions 1 General functions of TfNSW TfNSW has the following general functions— (a) Transport planning and policy Transport planning and policy, including for integrated rail network, road network, maritime operations and maritime transport and land use strategies for metropolitan and regional areas. (b) Transport public funding The administration of the allocation of public funding for the transport sector, including the determination of budgets and programs across that sector. (c) Transport infrastructure The planning, oversight and delivery of transport infrastructure in accordance with integrated transport and land use strategies and available financial resources, including prioritising of expenditure and projects across the transport system. (d) Capital works programs and budgets Co-ordination of capital works programs and budgets across the transport sector. (e) Contracting for the delivery of transport services Contracting, on behalf of the State, with public transport agencies or the private sector, for the delivery of transport services, including the setting of performance targets and service standards. (f) Transport services co-ordination The co-ordination of transport services, including timetabling for transport services and providing for effective transport interchanges. (g) Incident management The management of incidents affecting the efficiency of road and public transport networks, including the co-ordination of communications with and responses by relevant agencies. (h) Transport information The provision of information about transport services and transport infrastructure to assist people to use those services or infrastructure. (i) Provision and deployment of staff and services The provision of corporate and shared services to TAHE, RTC and public transport agencies and the deployment of staff to TAHE, RTC, public transport agencies and the Department of Transport. (j) Ticketing for transport services The provision of integrated ticketing arrangements for transport services, and regulating the types of tickets and other ticketing arrangements for the setting of fares for transport services. … 1. When considering the objects and functions of the TAA particularly s2A (c), s3D(a) and Schedule 1(c) the decisions in IW, Rainsford and Whiteoak generally support the view that the respondent was not providing a 'service' within the meaning of the ADA. 2. We accept the respondent's argument that: "The alterations to traffic management as part of the B-Line Project were pursuant to Transport for NSW's statutory functions to promote traffic management, road safety and transport efficiency. They are not provided to help or benefit a particular type of road user or class of persons." 3. The same reasoning as set out in Whiteoak can be applied to ss49M and 49ZYN of the ADA. We find the primary functions of the statutory provisions in the TAA and the impact on all stakeholders, does not satisfy us that the discharge of the respondent's statutory function could be characterised as "providing" a "service" for the purposes of the ADA. In this application, the respondent is required to administer a governmental function or perform a statutory duty and the outcome is imposed on, rather than made available to the applicants, which would render it unlikely that "services" are being "provided". 4. The installation of tidal flow as part of traffic management and consequent removal of the median strip was performed pursuant to the respondent's statutory duties and functions and as a government function in furtherance of sections 2A, 3D and Schedule 1 of the TAA. We accept the respondent's submission that the primary purpose of the changes at the intersection which is the subject of the applicants' complaint was to regulate the interaction between the different road users as a result of the installation of the B-Line service and as an overall government function. We find the infrastructure project was not intended nor designed to be for the benefit of any class of individuals or type of road user. Similar to the reasoning in Whiteoak, any benefit to pedestrians was not part of the purpose, rather any benefit would be a contingent and consequential benefit as part of regulating between the differing interests of different road users as part of the overall traffic management function. We find that the removal of the Cabramatta Road pedestrian crossing as part of the overall infrastructure project was not part of any 'service' provided by the respondent to the applicants, or any other member of the public. In so finding, the Tribunal's jurisdiction is not enlivened and the application is dismissed. 5. Despite our finding on the question of whether the respondent is providing a 'service', the application in our view would have also been dismissed for the following reasons. Indirect discrimination 1. The matters which the applicants must prove to substantiate a complaint of indirect disability discrimination in the provision of services are as follows: 1. they have a 'disability' as defined in the ADA; 2. the respondent has refused to provide them with a service, or provided a service on unfavourable terms; and 3. in refusing to provide services or providing services on unfavourable terms, the respondent required them to comply with a requirement or condition with which a sustainably higher proportion of persons who do not have their disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances, and with which the applicants do not or are not able to comply. 1. Similarly, the applicants must prove the following matters to substantiate a claim of indirect age discrimination in the provision of services as follows: 1. they are of a particular age, or belonging to a particular age group; 2. the respondent has refused to provide them with a service, or provided a service on unfavourable terms; and 3. in refusing to provide services, or providing services on unfavourable terms, the respondent required them to comply with a requirement or condition with which a substantially higher proportion of persons who are not of their age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances and with which the applicants do not or are not able to comply. 1. The applicants bear the onus of proving each element of unlawful indirect discrimination, including that the requirement or condition is not reasonable (see Wright v Commissioner of Police [2014] NSWCATAP 67 at [24]). A refusal to provide a 'service' or provide 'service' on certain terms 1. We have set out our reasons above with respect to our finding that the respondent did not provide a 'service' to the applicants. However, if we are incorrect in this finding the 'service' that was provided was a facility for pedestrians to cross Military Road. The evidence establishes that the Cabramatta Road pedestrian crossing remains in place and is available for public use. All members of the public, including the applicants, may access that crossing. This issue was not in contest during these proceedings. The applicants' evidence establishes that their complaint relates to safety concerns and anxiety they have in using the Cabramatta Road pedestrian crossing to cross Military Road. 2. There is no evidence that there is any actual or constructive refusal to provide the 'service', namely the Cabramatta Road pedestrian crossing, on the grounds of the applicants' disability, age or otherwise. We, therefore, find that the applicants have failed to establish that the respondent refused to provide the pedestrian facility to the applicants. 3. As it relates to whether the respondent provided the Cabramatta Road pedestrian crossing 'service' to the applicants or other pedestrians on any 'terms', we find that there were no relevant terms attached by the respondent to any pedestrian or other person including the applicants' use of the Cabramatta Road pedestrian crossing facility. Despite the method of use by pedestrians of the Cabramatta Road pedestrian crossing, they were able to enter the crossing, activate the signal button on one side, and move to cross the road by foot, bicycle or other mechanical vehicle, and exit the crossing on the opposite side of the road. 4. As set out in the applicants' written submissions filed 27 April 2021 they concede that their complaint is not one of a refusal to provide services, but discrimination on the terms on which the services were provided. The applicants do not specify the particular terms they contend were required of them by the respondent. However, the appellant's argument that the issue of a requirement or condition, namely 'that pedestrians complete their crossing of Military Road at the Cabramatta Road pedestrian crossing, on foot without a motorised wheelchair or other aid, within 24 seconds.' appears to be conflated with what may be 'terms' on which the service was provided. 5. We adopt a useful part of the respondent's submissions as follows: 'There are no 'terms' on which members of the public use pedestrian crossing facilities. They are facilities made available to all pedestrians, which form part of the infrastructure made publicly available by Transport for NSW as an instrumentality of the NSW Government. The terms on which a service is provided is distinct from the manner in which a service is provided. The scope of s49M(b) of the ADA (and corresponding provisions relating to other grounds of discrimination) has been held by the Tribunal (and its predecessor Tribunals) to not extend to the manner in which the service is provided; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28], citing Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [49], Turner v State Transit Authority [2004] NSWADT 89 at [59]-[77] and Whitfield v State of New South Wales (NSW Police Force) NSWADT 265 at [92].' 1. We find that the complaint by the applicants relates to the manner in which pedestrians cross the Cabramatta Road pedestrian crossing rather than terms on which members of the public are expected to use the crossing. There are no 'terms' on which the service is provided as all pedestrians use the crossing in the same manner. 2. We, therefore, find that the applicants have not proved that the elements of indirect discrimination on the basis either of a refusal to provide a service or that the service is provided on certain terms. 3. For these reasons, even if we were incorrect in our finding that the respondent did provide a service to the applicants, their claim would have in any event failed and be dismissed. Orders 1. The application is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 21 December 2021 - Pursuant to s 63 Civil and Administrative Tribunal Act at [5] 'Cabramatta' inserted to replace 'Canterbury'. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2021