Recommended decision on application for exemption under Disability Discrimination Act section 55: Employers Making A Difference
Application
By email received on 14 August 2001, Employers Making A Difference have requested an exemption under section 55 of the Disability Discrimination Act from liability under the Act, for a period of five years, to permit them to advertise positions as being only open to people with a disability.
Process for consideration notice of inquiry and submissions
The Commission's published policy on exemption applications under the DDA indicates that "the Commission will seek to give interested parties, including people with a disability (through their representative organisations and/or more directly), effective opportunities to participate in decisions regarding applications for exemption".
In general this involves seeking submissions in response to a notice of inquiry and/or a draft decision. This policy also indicates that the procedure may be varied in cases of urgency and/or where the Commission considers that sufficient opportunities have already occurred for parties to put evidence and arguments before it.
In my view the present application is a case where the usual consultation procedure is not required before refusing to grant an exemption, because it turns entirely on a simple and clear point of law rather than on any assessment of facts and their merits.
I also consider that, having regard to the objects of the Act, the Commission should accept the applicant's submission that the matter deserves urgent consideration so that employment opportunities for people with disabilities should not continue to slip by pending resolution of this matter.
Recommended decision
I recommend that the requested exemption be refused, because there is simply no arguable basis for any view that the conduct in question is unlawful under the DDA so as to require an exemption.
The Commission has decided on a number of occasions that it ought not to grant exemptions where there is no substantial prospect of the conduct concerned being held to be unlawful in the absence of an exemption. Other bodies responsible for similar powers have taken the same view. I refer in particular to the decision of the Victorian Equal Opportunity Board in Re Fernwood Fitness Centre ([1996] EOC 92-782), adopted and summarised by the Victorian Civil and Administrative Tribunal (VCAT) in Doveton North Primary School, where it was noted that "an exemption will not be granted unnecessarily - that is, where another statutory exception in the Act clearly applies, or where there is no arguable case of discrimination".
It should be obvious that in the present matter there is no arguable case of discrimination.
The Disability Discrimination Act provides for complaints only where a person alleges discrimination on the basis of a disability which that person has (or which is imputed to him or her, or he or she had in the past or may have in the future or the disability of an associate). A complaint that a person has been discriminated against because he or she does not have a disability or the particular disability which is a criterion for eligibility for a program or opportunity would lack any valid basis in the Disability Discrimination Act - or for that matter under its State and Territory equivalents, each is which is in similar terms in relevant respects.
The applicants have indicated that they require this exemption because the Department of Employment, Workplace Relations and Small Business will not permit "disability only" positions to be advertised on its main jobseeking service, the Australian Jobseeking Site without such an exemption. However, it would not in my view be proper for the Commission to base its own decisions on plainly incorrect views of the Disability Discrimination Act which might be held by other parties.
Adoption and publication of a decision in the terms I recommend is more likely to be effective in correcting such incorrect views and avoiding the time of all concerned being wasted in making similar applications in future to protect beneficial programs targeted to people with a disability.
GRAEME INNES AM
Deputy Disability Discrimination Commissioner
14 August 2001
