updated: 16 October 2002
About this page
Prior to changes made by the Human Rights Legislation Amendment Act 1999 which took effect in April 2000, the Australian Human Rights Commission conducted hearings and made determinations on Disability Discrimination Act complaints referred to it by the Disability Discrimination Commissioner or delegate. Complaints were referred to the Commission because the complaint could not be settled by conciliation or because the nature of the matter was such that it should be determined by the Commission. This procedure has now been replaced by hearings by the Federal Court or Federal Magistrates Service.
Access to Commission determinations under the previous procedure is being maintained on this site as a useful guide to the interpretation and application of the DDA.
McLaughlin v Commonwealth of Australia
Complaint of employment discrimination based on obesity, chronic fatigue syndrome, multiple chemical sensitivities, sleep apnoea, breast cancer, anxiety, depression and hypertension found unsubstantiated and dismissed by Commission.
Eva Wu v. Eli Cohen and Express Embroidery
$17,000 compensation awarded for discrimination against injured worker
v State of Western Australia
$35,000 damages awarded for failure properly to consider a prison officer with a back injury for a stores/laundry position. Dismissal from the position of prison officer found to be not unlawful: the complainant could not perform duties of restraining prisoners which were part of the inherent requirements of the job.
Taylor v State of Western Australia
$5000 damages awarded for an instance of discrimination found against police officer with head injury. Several other claims of discrimination in this matter were rejected by the Commission.
v Internet Resources
Employment discrimination complaint dismissed. Reminder: Decisions of the Commission as a tribunal are subject to review and should not necessarily be taken as authoritative, as binding precedents, or as being invariably correct
v Commonwealth of Australia
$12000 damages awarded for employment discrimination on rehearing of matter returned by Federal Court to Commission for reconsideration
v State of Western Australia (Western Australia Police Service)
Preliminary decision on employment discrimination complaint: The Commission found that service as a police officer is employment for the purposes of the DDA.
Loscialpo v New South Wales Police Service
A man with colour blindness was refused employment as a police officer. The Commission dismissed the complaint, finding on the basis of expert evidence that he was unable to perform the inherent requirements of the job.
Ralph v Pemar Pty Ltd trading as Tuncurry Aluminium Windows
$3000 damages awarded for less favourable treatment at work based on his being an associate of a hepatitis C positive person (his girlfriend).
McDonald v. Hospital Superannuation Board
Discrimination was found against an employee with multiple sclerosis on the basis of derogatory comments found to have been made. A number of other claims of discrimination in this matter were rejected. Damages of $22,000 were awarded.
A public servant with occupational overuse syndrome affecting her ability to use a computer keyboard complained she had been discriminated against in being refused promotion to a senior officer position. The Commission found that data entry was a substantial part of the inherent requirements of the particular job (despite not being emphasised in the selection documents) but that the complainant could have performed this requirement if voice dictation equipment and software had been provided. The employer had not established that use of this software on its network would impose unjustifiable hardship.
v ACT Department of Urban Services
The Commission dismissed a complaint of discrimination against an employee with disabilities resulting from head injuries including dizziness and impaired vision and speech. A reduction in her work to part time was not less favourable treatment in the circumstances as it was undertaken to accommodate the effects of her disability. Other unsatisfactory aspects of management of the employee's situation either were not discriminatory or else had already been adequately remedied by the Merit Protection Review Agency.
v Commonwealth of Australia
Discrimination found against colour blind applicant for employment: $7525 damages awarded.
Garity v Commonwealth Bank of Australia
A vision impaired employee was found to have been discriminated against in not being given equal access to promotional and training opportunities. $153,500 damages were awarded. This decision also emphasises the importance of the principle of reasonable accommodation in disability discrimination law.
Crombie v. Commonwealth of Australia
Discrimination found on basis of colour blindness. The Commission decided that despite medical evidence supporting a ban on colour blind people in the position concerned, other evidence indicated that the complainant could in fact perform the inherent requirements of the job. Compensation of $22,524 was awarded.
Ryan v Neale Dennis and Dennis Deals Pty Ltd
A woman complained she had been discriminated against by being dismissed from a car detailing job after disclosing to her employer that her husband had died of AIDS. The Commission found she had been discriminated against as an associate of a person with a disability and on the basis of imputed disability and awarded $4000.
Ghabche v Bill and Fotini Sclavenitis
Complaint alleging discriminatory dismissal because of back injury dismissed. The Commission rejected the complainant's version of events including the claim that he had in fact been dismissed.
Hill v. Inghams Enterprises Pty Ltd
The Commission dismissed a complaint that an employee had been discriminated against when he was required to provide a medical certificate supporting his claim to be unable to attend compulsory training because of a disability. The requirement was reasonable and was not less favourable treatment than afforded to other employees.
Macpherson v. Telspec Pty Ltd
An electrical engineer complained that he had felt forced to resign when his duties were altered after his employer imputed to him a disability of low tolerance to electricity. The Commission found there had been no discrimination, and the employer had acted reasonably in the interests of health and safety and as it would have done in the case of any employee. This was because the employer had offered him other duties which were within his duty statement and appropriate to his qualifications and had only altered his duties for a brief period until an expert assessment could be obtained to resolve the issue. The Commission said "The imputed requirement with which the complainant was unable to comply, an inability to operate machines without the risk of shock because of his low tolerance to electricity, was perfectly reasonable in the short term until a definitive medical assessment could be obtained."
Woodhouse v. Wood Coffill Funerals Pty Ltd
The Commission accepted evidence that a pallbearer who could not carry coffins safely because of his disability would have been able to perform this requirement if he were provided with a small amount of training, which would not have imposed unjustifiable hardship. He had been discriminated against by being dismissed and $16,730 damages were awarded. This decision also discusses the meaning of inherent requirements.
Humphries and Terry Humphries v. Department of Education Employment Training and
The Commission found that failure to provide adequate equipment for a public servant with a vision impairment to be able to word process properly and to contemplate higher duties was discriminatory.
See also Federal Court decision (Commissioner Charlesworth was in error in basing decision on direct discrimination rather than considering arguments on indirect; case referred back to Commission for reconsideration)
Allender v. Department of Human Services, Victoria
Employee with deteriorating vision found to have been discriminated against in termination of employment. The Commission found that the employer should have conducted a more adequate assessment of the employee's ability to perform job requirements. $33,529 damages were awarded.
v. State of Victoria
The Commission dismissed a complaint by a man who has colour blindness that he had been discriminated against in being refused appointment as a police officer. The Commission accepted evidence that the inherent requirements of the job required colour vision to a better standard than the complainant could meet.
Benedicto Soares v. Bayer Australia Ltd
Complaint of discrimination because of anxiety disorder dismissed. The Commission found that the complainant had not been made redundant because of his poor health but because his position had genuinely been found not to be required, albeit that this had occurred while the complainant was on sick leave.
See also Federal Court decision upholding HREOC procedural decisions
Howard v. CSR Ltd
Complaint of discrimination on basis of diabetes dismissed: no evidence that the complainant's disability was the reason for his failure to be given permanent employment.
v. P Pty Ltd
Commissioner Kohl found that a job applicant had been discriminated against when an interview was scheduled in an inaccessible building that had sixteen steps despite the complainant informing the respondent of her inability to access such a building. The complainant was awarded $2,130 damages in relation to this interview. A complaint about an interview scheduled the next day at an alternative venue was dismissed.
Melvin v. Northside Community Service Incorporated
Complainant was dismissed after ten years employment with the respondent as a child care worker. The dismissal was based on an optometrist's report that Ms Melvin was "legally blind", which did not however answer the questions the employer had asked, or address Ms Melvin's ability to perform the inherent requirements of the job. Commissioner John Nader QC found that Ms Melvin had been unlawfully discriminated against. He accepted specialist medical and other evidence that she could in fact perform the inherent requirements of the job. Over $56,000 in damages awarded.
v. Australia Post
A man with psychiatric disabilities complained he had been discriminated against by being refused consideration for employment. The respondent considered him unuitable for employment in a job with a team environment and public contact in view of a hisotory of anti-social behaviour. Commissioner Webster held that whilst the respondent had discriminated against Y, the defence in s.15(4) of the DDA applied in that Y could not perform the inherent requirements of the job given his difficulty with social interactions.
Shying v. Australian Nuclear Science and Technology Organisation
While the complainant was on sick leave, a new position was advertised in the area where he worked. The complainant alleged that this meant he had been replaced. After unsuccessful discussions with his employer he resigned and complained of discrimination under the DDA. Commissioner Kevin O'Connor dismissed the complaint, finding that there had been an unfortunate but unsubstantiated assumption on Mr Shying's part that he was being replaced. Commissioner O'Connor noted however that "it is critical that the absence of a person on leave due to disability should not be taken as an opportunity to perpetrate a disadvantage on them".
Susan White v. Daryl Westworth and Firvas Pty Ltd trading as Chicken A Go Go
Complainant found to have misinterpreted the respondent's concern as to the condition of her hands and suggestion she should wear gloves. Her resignation as a result was not a discriminatory dismissal.
McNeill v. Commonwealth of Australia
A public servant with a vision impairment whose probationary appointment was terminated complained that she had been discriminated against in that her poor work performance and difficulties in interpersonal skills resulted from the facts that she did not have the appropriate equipment to do her job and was being more intensely monitored than other employees. The complainant required additional equipment to perform the tasks allocated to her; this equipment included a magnifying lamp and a computer program that magnifies text on a computer screen. Though most of this equipment was requested before or shortly after the complainant commenced work, all of it was not available and fully operational until ten months later. The Commission upheld the complaint. The respondent had failed to implement satisfactorily its Reasonable Adjustment policy. Tthe lack of operational equipment and intense monitoring did have a direct connection with the conduct and communications difficulties of the complainant. The complainant would have been able to fulfil the inherent requirements of the job (and therefore the respondent could not rely upon s.15(4) of the DDA) and only failed to do so because of the lack of equipment and the intense monitoring and supervision. The respondent was ordered to pay the complainant a total of $50,900 consisting of $28,400 for loss of earnings and $22,500 for general damages.
v. Department of Defence
The complainant, whose name was suppressed, was discharged from the Australian Defence Forces (ADF) after testing HIV positive. Commissioner Carter accepted evidence that, in some circumstances in the ADF, in training or in combat duties, there is a risk of transmission from an HIV positive soldier. However, he did not accept that this meant the complainant was unable to perform the inherent requirements of duty in the ADF. The rule that a HIV positive soldier could not be deployed was not itself an inherent requirement of the job, but a rule externally imposed by the employer.
But see Federal Court decision overruling this decision on the meaning of inherent requirements, and returning matter for rehearing; and High Court decision confirming Federal Court and further explaining inherent requirements and safety issues.
v. Dr. McHugh, Auditor-General for the State of Tasmania
A man with a mental illness complained he had ben discriminated against when his appointment was terminated after difficulties relating to colleagues and clients. The employer had not been informed the man had a medical condition but not informed of its specific nature. The President held that the complainant had been discriminated against because of manifestations of a disability. The defence in section 15(4) of the DDA did not apply since the complainant had not been given a fair chance to prove his capacity to carry out the inherent requirements of the job after his return from sick leave.
Bishop v Sports Massage Training School
Discrimination found in failure to accommodate dyslexia in exam procedure by providing extra time; $3000 damages awarded.
Cowell v A School (procedure, re suppression order)
Cowell and Cowell v A School
Complaint of direct discrimination in education rejected after matter returned to Commission by Federal Court for reconsideration. Commissioner McEvoy interpreted DDA section 5, which deals with less favourable treatment because of disability, as requiring a "reasonably proportionate" response to disability because of the adjustment requirements of subsection 5(2), rather than being satisfied by purely identical treatment, but in this case found the school had responded appropriately.
Sluggett v Flinders University of South Australia
Complaints of discrimination through difficulties in access to premises dismissed. Alternative access routes with lifts had been available on the university's premises and it had been the complainant's choice whether to use them. Access difficulties at the premises of a course placement had resulted fom the complainant' informed choice of placement not from the University's requirement to perform a course placement.
v NSW (procedure)
Inquiry discontinued after death of complainant
v Hills Grammar School
(decision on damages)
$42628 damages awarded for discrimination in refusing enrolment
Murphy and Burkhard Grahl on behalf of themselves and Sian Grahl v. The
State of NSW (NSW Dept of Education) and Houston
Discrimination on grounds of physical disabilities found in initial refusal to accept application for enrolment and in a series of incidents after enrolment
v Hills Grammar School
Independent School found to have discriminated in refusing enrolment of girl with spina bifida. Defence of unjustifiable hardship not established.
See now also Federal Court decision upholding Commission decision
on behalf of Hoggan v State of NSW
Application refused to dismiss matter as having more appropriate remedy available
J on behalf of herself and AJ v. A School
A complaint that a girl with severe difficulties climbing stairs had been discriminated against by a school refusing to move her home classroom downstairs was rejected. The school had offered a change to another "house" with a downstairs home room and it was the girl and her family's decision to reject this, rather than a condition of being able to climb stairs being imposed by the school. The Commission did find discrimination in some other elements of the school's meeting of the girl's needs.
But see Federal Court decision overruling finding of discrimination
v. Flinders University of South Australia
The Commission found that a complaint of discrimination in education because of psychiatric disabilities was not substantiated. Problems in satisfying course requirements may have resulted from the complainant's disability but this did not mean there had been discrimination. Where accommodations of disability had been requested they had been granted where this was consistent with the academic integrity of the course. A requirement which the complainant could not comply with, to complete a four day practical teaching component, was reasonable in the circumstances and thus not discriminatory under the DDA.
John Kinsela v. Queensland University of Technology
A student who uses a wheelchair, complained that on completion of his degree he would not be able to participate on the same basis as his colleagues in the graduation ceremony which was to be held in an inaccessible venue. Even though some arrangements could be made to accommodate him on the stage, he would not be able to participate in the procession with his year group and be part of the experience of receiving his degree in the same way as everybody else. Commissioner Atkinson ordered that the graduation ceremony be moved to an accessible venue. She found that the requirement that graduands be able to use steps to participate fully in the ceremony was not reasonable, and that there was an alternative venue which could be used. In considering the "unjustifiable hardship" provisions of the DDA, she found that there were other benefits that may accrue to participants and their families and friends, in the use of the more accessible venue, and that these outweighed the possible disadvantages. She pointed out that, despite the inaccessible venue having been the traditional venue for these ceremonies, "the legislation has changed, and the rights that are expected by and afforded to persons with a disability have changed and so expectations must themselves change".
A university student alleged he had been discriminated against when he was denied access to a building on campus because of his disability, a personality disorder. The respondent agreed that it had imposed restrictions on H but said that it had done so because of complaints made by staff about H's threatening behaviour and harassing manner. Commissioner Webster found that there had not been direct nor indirect unlawful discrimination. In relation to s.5 of the DDA, Commissioner Webster held that anyone who displayed H's behaviour (whether or not they had a disability) would have had restrictions placed on them. He also held that the requirement and condition that S placed on H - that he be excluded from certain areas and from approaching staff - was reasonable having regard to the circumstances of the case.
Beattie (on behalf of Kiro and Lewis Beattie) v. Maroochy Shire Council
Exclusion of non-immunised children from child care centre found reasonably necessary in interests of public health
Decisions on other areas covered by the DDA, including access to premises, goods services and facilities, and clubs.
v CAMS (Sport)
The Commission found that a racing driver with vision in one eye had been discriminated against when his licence was suspended, in view of evidence of defects in the licensing body's rules such as requiring one eyed drivers to have a greater field of vision than is normal for tow eyed drivers and expert evidence that the complainant's field of vision was in fact sufficient.
Cooper v Coffs Harbour City Council
This decision resulted from the rehearing of a complaint remitted by the Federal Court to the Commission (see Cooper v Coffs Harbour Council, 1998, below) on the basis that the respondent Council would have to be held liable for permitting the discriminatory act of developing an inaccessible cinema unless the Council could establish that it had operated under an honest and reasonable mistake of fact. Commissioner Carter found that in this case "the Council did little if anything to properly inform itself of the relevant matters so that its belief could be supported on reasonable grounds" and was liable accordingly.
and Cooper v New South Wales (Services; access to premises and facilities)
Two people with physical disabilities complained they had been discriminated against in 1994 by lack of provision of access for people who use wheelchairs to serve as jurors in certain courts in Sydney and at Coffs Harbour. Commissioner Street found there had been a refusal to provide the service of assisting an eligible person to perform jury duty when Ms Druett was directed against her wishes to apply for exemption from duty. Damages of $5000 were awarded accordingly. However, both in relation to services and to access to premises the Commissioner found in both cases that it would have imposed unjustifiable hardship to achieve accessibility of jury rooms by 1994 given the commencement of the DDA only in 1993, notwithstanding the earlier existence of equivalent NSW statutory obligations. He referred in this context to plans and actions put in place to achieve accessibility of NSW courts over time. This decision also examines the distinction between premises and facilities.
and Francey v Hilton Hotels (number 2) (Access to premises/services)
Smoke removal technology not ordered - no feasible approach identified on inquiry
( see also Francey and Meeuwissen v. Hilton Hotels, 1997)
Lee v Nova Cinemas and Rundle East Company
Pty Ltd (services; access to premises)
A woman who uses a wheelchair complained that she had been discirminated against on the basis that the only seating provided for people who use wheelchairs is located in the first three rows of the cinema. At a preliminary hearing the Commission accepted the argument of the second respondent, Rundle East Company Pty Ltd, that as it leased only the shell of a building to the first respondent and is not responsible for the subsequent fit-out of that building, there had been no discriminatory act by the second respondent or responsibility for any discriminatory act by other persons.
v Ability Options (services; accommodation; Commonwealth programs)
A man with physical and intellectual disabilities complained that he had been discriminated against when his residential service provider transferred him from a facility which did not provided 24 hour care to one which did. Commissioner Mahoney rejected the complaint, finding there had not been any less favourbale treatment of the complainant because of his disability and that no unreasonable requirement which he could not comply with had been imposed.
and Nagy v Cuna Mutual Group (insurance)
The brother and sister of a man who had died complained that an insurer was discriminating on grounds of their late brother's HIV status in failing to pay on a loan insurance policy. In a preliminary hearing Commissioner Innes decided that the beneficiaries of a deceased persons estate could be persons aggrieved by discrimination on grounds of the person's disability in a case such as this. He also held that the complainants should be regarded as able to complain of discrimination against them as associates of a person with a disbailty despite that person's death, because to decide otherwise would be contrary to the objects of the legislation.
v SOCOG (goods, services and facilities)
A man who is blind complained that he had been discriminated against by the failure to produce the Sydney Olympic Games ticketing book in Braille.The Commission found that discrimination had occurred, either on the basis of less favourable treatment or on the basis that a condition or requirement had been imposed which the complainant could not comply with and which was unreasonable. The complexity of the ticket book was such that having the print version read out either by SOCOG's telephone help line or by friends or relatives was not an effective substitute. The electronic version provided at a late stage did not provide effective access because of defects in formatting for accessibility. The Commission also rejected an argument of unjustifiable hardship, noting that the cost of printing and distributing the ticket book was $7.18 million compared to a cost of up to $17,500 on the preparation of perhaps 200 copies in Braille.The Commission found that a dominant issue on this point was the fact that the complainant and perhaps others similarly disabled were effectively denied access to the ticketing process. As a result of the discriminatory act found, the complainant could not and did not apply for tickets in the first round of allocation. The Commission ordered, however, that the second and subsequent ticket books be provided in Braille and that the respondent take other steps to ensure the complainant an effective opportunity to choose and secure tickets.
v Queensland Cyclists Association Incorporated (clubs, sport)
A man with a vision impairment complained he had been discriminated against when he was excluded from competitive cycling after an accident. Section 28 of the DDA regarding sport provides an exception in subsection 3 "if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity". After considering expert evidence the Commission found that the complainant is not reasonably capable of performing the actions reasonably required in relation to the sport of competitive road racing because on account of his impaired vision there is a serious risk that, given the exigencies of competitive road cycling, there is a real risk of harm not only to the complainant himself but also to others.
v Coffs Harbour and District Ex-Servicemen & Women's Memorial Club
Discrimination not found to have occurred on basis of addiction
but see now Federal Court decision returning matter to HREOC for reconsideration
v United Grand Lodge of Queensland; Allen v Kingaroy Masonic Lodge
(access to premises, clubs)
Premises decided not to be public premises covered by section 23; clubs provision held inapplicable. Reminder: Decisions of the Commission as a tribunal are subject to review and should not necessarily be taken as authoritative, as binding precedents, or as being invariably correct
v Young Furniture Traders
(access to premises; goods, services and facilities):
$1000 damages awarded for refusal to allow guide dog in shop
See now also Federal Court decision upholding and enforcing HREOC decision
v. Odyssey House Victoria
(goods, services and facilities)
A man with a psychiatric disability complained he had been discriminated against by a service provider when it failed to admit him into its drug and alcohol rehabilitation program and when it failed to appear to give evidence at a sentencing hearing before a Magistrate. The Commission rejected the complaints. Although giving evidence could be a service under the DDA, it could not be said that the respondent failed or refused to attend to give evidence, because it had not in fact been asked to do so. It was not possible for Odyssey House to admit the complainant because the magistrate had decided in favour of a prison sentence rather than in favour of a program such as that provided by Odyssey House.In any event, the complainant had required psychiatric services which were not within the services Odyssey House was in the business of providing. If he had been refused drug rehabilitation services (which were within Odyssey House's services) because of his psychiatric disability, the Commissioner found that to provide services to the complainant would have imposed unjustifiable hardship, because of the financial consequences of providing additional psychiatric support and the impact of the complainant's disability on the therapeutic community within the centre.
v. Linegar and State of Tasmania
A nurse who had previously lodged a complaint of disability discrimination complained she had been victimised when her supervisor reported her to the relevant professional standards body. The Commission rejected the complaint. The reporting had occurred because of genuine concerns regarding performance and public safety and not because of the earlier complaint.
v. Nunawading Tennis Club
A man with a psychological disorder complained he had been dicriminated against when he was suspended from membership after non-participation in club events and inappropriate behaviour. Commissioner Dodson rejected the complaint. There had been no less favourable treatment because of disability and thus no direct discrimination. So far as indirect discrimination went, while the complainant may have been less able than people without his disability to comply with a condition that he control his behaviour, the Commissioner found no evidence that this requirement was unreasonable in the circumstances.
Cooper and Others v. Holiday Coast Cinema Centres Pty Ltd
(access to premises)
The complainants alleged unlawful discrimination in the building of a new cinema in an existing complex with access being only by means of stairs. The Commission noted that this in effect imposed a condition or requirement of being able to negotiate stairs or else being prepared to be carried, and that this would be unlawful indirect discrimination unless the unjustifiable hardship defence were established. Commissioner Keim rejected arguments that provision of access was not permitted in the circumstances under the Buidling Code of Australia. He found that to be required to install platform lifts immediately would involve unjustifiable hardship in the present financial circumstances of the respondent but to do so within five years would not. Accordingly he decided that the respondent should be required to enter into a deed undertaking to provide access by 2002.
v. Birss Nominees Pty Ltd
(access to premises; goods, services and facilities)
$1000 damages awarded for refusal of access to caravan park for man with hearing dog.
v. Crown Ltd
(access to premises; goods, services and facilities)
The complainant suffers from an Acquired Brain Injury, (ABI) such that on occasions his gait and speech make him appear intoxicated when in fact he is not. The complaint relates to two occasions when the complainant attempted to enter Crown Casino (owned by Crown Limited) and had difficulties entering the Casino. The Commission found there had been no unlawful discrimination. The Commissioner held that there was no direct discrimination because if a person without ABI had manifested the same symptoms as Mr White the casino would have reacted in the same fashion on the two occasions that Mr White was either denied entry or delayed at entry, so that there was no less favourable treatment than would have been afforded to a person without a disability in similar circumstances. There was no indirect discrimination because the need for the Casino to comply with the Liquor Act made reasonable a requirement to be sober, and for entry by a person who did not appear sober to be subject to further examination rather than being immediate and automatic. The casino was found to have applied its requirements reasonably in the circumstances.
v. Northern Territory of Australia
(goods, services and facilities)
The complainant, who has a paranoid mental illness, alleged that he was discriminated against by being denied access to his medical file. Commissioner McEvoy found that the respondent denied Mr Holmes access to his medical file because of his disability but she did not find that this constituted unlawful discrimination. Commissioner McEvoy held that where a respondent refuses to provide a service (in this case providing medical records to a patient) because a clinical assessment has been made that to do so would lead to deleterious effects on the complainant, then it does not necessarily amount to "less favourable treatment". Further, the facts did not fit the definition of discrimination in section 5: that is, the circumstances of a person with the complainant's disability seeking access to a medical file are materially different from those of a person without that disability. The Commissioner also held that there was no indirect discrimination as the requirement or condition (that the release of the information not be prejudicial to the patient's health) was a reasonable one. If there was in fact unlawful discrimination, then the respondent would have succeeded on raising a defence of unjustifiable hardship because to release the file would cause detriment to the respondent and its staff.
See also Federal Court decision
and Meeuwissen v. Hilton Hotels
(access to premises; goods services and facilities)
Requirement to be able to tolerate cigarette smoke found unreasonable and discriminatory; $2000 damages
(see now also Meuwissen and Francey v Hilton Hotels (number 2)
v. Arizona Bay Pty. Ltd., Charlie Habib and Bunge Pty Ltd
(goods, services and facilities)
Discrimination and harassment found in provision of taxi services to person with physical disability
McLean v. Airlines of Tasmania Pty Ltd
(goods, services and facilities)
Mr McLean has a severe mobility disability such that he uses a wheelchair. He cannot wheel this himself, or get into or out of it without assistance. He complained that Airlines of Tasmania (AT) would not allow him to travel unaccompanied. Mr McLean, who had previously travelled unaccompanied on large domestic airlines, alleged that AT had discriminated against him on the grounds of his disability. AT argued that their aircraft was very small with an aisle too narrow for a wheelchair, inappropriate emergency exits and equipment and, because it seated only 19 passengers, no flight attendant to assist Mr McLean. Mr McLean stated he was willing to risk being left behind in an emergency. Commissioner Webster considered that human nature would not allow Mr McLean's fellow passengers to abandon him and they may be put at risk themselves in assisting him. Hence his unaccompanied presence might endanger the crew, the other passengers and even rescue workers. On balance the Commissioner considered that AT's discrimination against Mr McLean was not unlawful as his presence on the flight would impose an unjustifiable hardship on the Airline.
Jennings v. Guan Lee
(access to premises; goods, services and facilities)
A woman with a vision impairment complained that a restaurant proprietor would not allow her guide dog to remain inside. At hearing the proprietor did not contest the matter but told Commissionthat he had not understood that guide dogs were allowed in his restaurant. He gave Mrs Jennings an unreserved public apology. Commissioner Nader awarded the complainant the sum of $3,000 by way of compensation for injured feelings, distress and embarrassment caused to her by the respondent's conduct.
and Y v. The State of Western Australia
(goods, services and facilities)
Two HIV positive prisoners alleged denial of educational opportunities, work opportunities, sport and recreation, and on one occasion, access to medical treatment due to a policy of segregation of HIV positive prisoners. The Commissioner rejected arguments that segregation was necessary in the interests of public health and accepted evidence that it was not. The Commissioner further found that the policy ought to have been fully reviewed in the time between when it was put in place in 1985 and the time of the decision considering the growth in knowledge regarding HIV transmission.
Association of the Deaf and Disabled People s International (Australia)
Ltd v. Telstra Corporation Ltd (goods, services and facilities)
This is the decision on remedies following the earlier decision in Scott v Telstra on liability under the DDA. Sir Ron Wilson decided, and Telstra agreed, that Telstra would supply to persons who are profoundly deaf (and not eligible for a TTY under the Government's Disability Strategy Policy) the following: a voucher for $600 for the acquisition of a TTY; not less than five years later another voucher for a replacement TTY; and if within 5 years of the first voucher, the TTY needs replacing, a further voucher for a replacement TTY. If a TTY is purchased that is less than $600 the balance may be put towards maintenance costs. The vouchers to be supplied by 1 March 1996.
Scott v. Telstra Corporation (goods, services
The complainants alleged that Telstra discriminated against profoundly deaf people in that it does not supply TTYs (teletypwriters) whereas it provides access to the telecommunications network to persons with hearing by way of a standard touchtone telephone. The respondents argued that it was not part of their service to provide TTYs and that to do so would involve unjustifiable hardship. The President found it artificial for the respondent to limit the definition of its service to the products it supplies (the line and touchtone phone) rather than what those products achieve (communication over the network). He held that there was indirect discrimination pursuant to s.6 in that: (a) the requirement of gaining access to the service is to be able to use a touchtone phone; (b) substantially more persons without profound deafness can comply with this requirement than those who are profoundly deaf; and (c) and the condition is unreasonable. In relation to unjustifiable hardship, the complainants produced evidence that if the respondent had to supply TTYs to 21,000 profoundly deaf persons, any loss suffered could be recovered by imposing an additional 30 cents charge on each of the respondents' annual accounts. The respondents produced evidence (most of which was the subject of a suppression order as it was commercial-in-confidence) that it would suffer a substantial financial loss if it had to supply TTYs to deaf people. It also relied upon evidence that the loss would be even greater if, as a result of a finding of unlawfulness, it had to provide equipment to all people with disabilities. The President thought that unjustifiable hardship should be determined by: (1) identifying what magnitude of difficulty would confront the respondent (from the point of view of the respondent and the objective bystander); and (2) establishing whether or not imposing the relevant obligation is justified by the benefits of fairness that would come from imposing it. The President accepted the calculations of the complainants as being the more accurate indication of the financial impact the respondent would experience. He applied these calculations in the test outlined above and found that the hardship was not unjustifiable in all the circumstances. Furthermore, the President rejected the respondent's attempt to rely upon the financial impact that would result from any far-reaching effect of the finding of unlawfulness. The ultimate finding, therefore, was that the complaints of discrimination were substantiated.