Fittler v New South Wales Electoral Commission and anor (No.2) [2008] NSWADT 116

The Electoral Commission discriminated against Mr Fittler by providing the service of enabling private voting on terms that required him to mark an ink-printed ballot paper, a requirement he could not comply with because he was blind and which was not reasonable in the circumstances. The requirement deprived him of voting privately, a Braille ballot paper for his ward could practically have been provided at low cost, the Local Government Act 1993 (NSW) and Local Government (Elections) Regulation 1998 (NSW) did not make ink-print paper voting necessary, and providing a Braille ballot paper would not have caused unjustifiable hardship. Randwick City Council did not aid or abet the...

Jurisdiction: Australia
Judgment Date: 18 April 2008
Procedural Posture: Disability Discrimination Complaint Concerning Goods and Services / Principal Matter; Final Decision After Hearing
Outcome: Complaint against the New South Wales Electoral Commission substantiated; complaint against Randwick City Council not substantiated and dismissed; compensation awarded against the Electoral Commission.
Legal Topics: ['provision of Services' 'indirect Disability Discrimination' 'private Voting by Blind Elector' 'braille Ballot Papers' 'statutory Necessity' 'unjustifiable Hardship' 'aiding and Abetting Discrimination' 'compensation for Hurt and Humiliation']

['anti Discrimination Law' 'disability Discrimination' 'electoral Law' 'administrative Law'] ['provision of Services' 'indirect Disability Discrimination' 'private Voting by Blind Elector' 'braille Ballot Papers' 'statutory Necessity' 'unjustifiable Hardship' 'aiding and Abetting Discrimination' 'compensation for Hurt and Humiliation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1

Procedural Posture

Disability Discrimination Complaint Concerning Goods and Services / Principal Matter; Final Decision After Hearing

Legal Issues

1 ['Whether the Electoral Commission provided a service within section 49M of the Anti-Discrimination Act 1977 by enabling electors to vote privately.' 'Whether requiring Mr Fittler to mark his vote on an ink-printed ballot paper was a requirement with which he could not comply because of blindness and which a substantially higher proportion of non-blind people could comply with.' 'Whether the requirement was reasonable in the circumstances.' 'Whether the requirement was necessary to comply with the Local Government Act 1993 (NSW) or the Local Government (Elections) Regulation 1998 (NSW) within section 54 of the Anti-Discrimination Act 1977.' 'Whether providing a Braille ballot paper to Mr Fittler would have imposed unjustifiable hardship on the Electoral Commission.' "Whether Randwick City Council aided and abetted the Electoral Commission's unlawful discriminatory conduct." 'What compensation or other orders should be made.']

Ratio Decidendi

Court Disposition

Complaint against the New South Wales Electoral Commission substantiated; complaint against Randwick City Council not substantiated and dismissed; compensation awarded against the Electoral Commission.

Orders

['The complaint against the first respondent, the New South Wales Electoral Commission, is substantiated.' 'The complaint against the second respondent, Randwick City Council, is not substantiated and is dismissed.' "The first respondent will pay the applicant $5,000 as compensation for damage he suffered by reason...