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Federal Discrimination Law Online

Chapter 5 The Disability Discrimination Act

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5.1 Introduction to the DDA

5.1.1 Scope of the DDA

The DDA covers discrimination on the ground of disability, including discrimination because of the use of a therapeutic device or aid;[1] accompaniment by a carer or assistant;[2] or accompaniment by an assistance animal.[3]

‘Disability’ is broadly defined and includes past, present and future disabilities as well as imputed disabilities.[4]

The definition of discrimination includes both direct[5] and indirect[6] disability discrimination.

The DDA makes it unlawful to discriminate on the ground of disability in many areas of public life. Those areas are set out in Part II Divisions 1 and 2 of the DDA and include:

Harassment of a person in relation to their disability or the disability of an associate is also covered by the DDA (Part II Division 3) and is unlawful in the areas of employment,[14] education[15] and the provision of goods and services.[16]

The DDA contains a number of permanent exemptions (see 5.[17] The DDA also empowers HREOC to grant temporary exemptions from the operation of certain provision[18]of the Act.

The DDA does not make it a criminal offence per se to do an act that is unlawful by reason of a provision of Part II.[19] The DDA does, however, create the following specific offences:

Note that conduct constituting such offences is also included in the definition of ‘unlawful discrimination’ in s 3 of the HREOC Act (see 1.2.1 above), allowing a person to make a complaint to HREOC in relation to it.

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5.1.2 Limited application provisions and constitutionality

The DDA is intended to ‘apply throughout Australia and in this regard relies on all available and appropriate heads of Commonwealth constitutional power’.[25]

Section 12 of the DDA provides, in part:

12 Application of Act

(1) In this section:

... limited application provisions means the provisions of Divisions 1, 2 and 3 of Part 2 other than sections 20, 29 and 30.

(2) Subject to this section, this Act applies throughout Australia.

...

(8) The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:

(a) give effect to [ILO 111]; or

(b) give effect to the [ICCPR]; or

(c) give effect to the [ICESCR]; or

(d) relate to matters external to Australia; or

(e) relate to matters of international concern.

HREOC considered the operation of s 12(8) in Allen v United Grand Lodge of Queensland[26] (‘Allen’). In that case, the applicant, a person with reduced mobility, complained that he was not able to access the respondent’s premises because those premises could only be accessed by stairs. The applicant alleged that this constituted disability discrimination pursuant to s 23 of the DDA.

In considering whether s 23 related to ‘matters of international concern’, Commissioner Carter QC considered the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities which were adopted by a Resolution of the General Assembly of the United Nations in 1994. Rule 5 identifies access to the physical environment as one of the target areas for equal participation by disabled persons. Commissioner Carter QC concluded that as s 23 has a ‘direct relationship’ with this Rule, it relates to a matter of international concern. He stated:

Clearly the United Nations Resolution and the Rules annexed evidence the joint concern of Member States to promote the equalisation of opportunities for persons with disabilities. The corollary of that proposition is that discrimination by one person against another on the ground of the latter’s disability has to be rejected. The equalisation of opportunities for the disabled is the very antithesis of a regime which condones discrimination on the ground of one’s disability. Therefore one can only conclude that the equalisation of opportunities for the disabled and the avoidance of discrimination on the ground of disability has become a matter of international concern and one manifestation of that concern is the United Nations Resolution referred to in some detail above.[27]

The operation of the limited application provisions of the DDA was raised in the Federal Court in Court v Hamlyn-Harris[28] (‘Court’). In that case, the applicant, who had a vision impairment, alleged that his employer had unlawfully discriminated against him by dismissing him. The employer was a sole-trader carrying on business in two States.

In support of his application alleging discrimination in the course of employment (that is, a breach of s 15, which is a limited operation provision), the applicant relied upon s 12(12) of the DDA. That subsection provides:

(12) The limited application provisions have effect in relation to discrimination in the course of, or in relation to, trade or commerce:

(a) between Australia and a place outside Australia; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 territories.

In his decision, Heerey J considered s 12(12) of the DDA and, in particular, whether the alleged termination of the applicant’s employment was in the course of, or in relation to, trade or commerce. In finding that the alleged termination did not come within the meaning of ‘in trade or commerce’, his Honour relied upon the decision of the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson.[29] Heerey J concluded:

In the present case the dealings between Mr Court and his employer Mr Hamlyn-Harris were matters internal to the latter’s business. They were not in the course of trade or commerce, or in relation thereto ...

That being so, I conclude this Court has no jurisdiction to hear the application. I do not accept the argument of counsel for Mr Court that the [HREOC Act] is not confined to the limited application provisions of the [DDA] but applies to ‘unlawful discrimination in general’. Being a Commonwealth Act, the [DDA] has obviously been carefully drafted to ensure that it is within the legislative power of the Commonwealth.[30]

It does not appear that Heerey J was referred to other sub-sections of s 12, such as s 12(8), or to the decision in Allen to overcome the perceived ‘jurisdictional issue’ in this case.

In O’Connor v Ross (No.1),[31] the applicant complained of discrimination contrary to s 25 of the DDA in the terms and conditions upon which accommodation was offered. Driver FM stated that ‘it is sufficient for the application to come within the purview of the DDA if discrimination in relation to accommodation for disabled persons can be found to be a matter of international concern’.[32] His Honour found that equal access to accommodation for people with disabilities was a matter of international concern and adopted the views expressed by HREOC in Allen.[33]

In Souliotopoulos v La Trobe University Liberal Club,[34] Merkel J also considered the limited application provisions of the DDA. His Honour was satisfied that the prohibition of disability discrimination was a matter of international concern. His Honour held that the limited application provisions in Divisions 1, 2 and 3 of Part 2 of the DDA, but in particular s 27(2), have effect by reason of s 12(8)(e). His Honour also noted that his decision was consistent with that of HREOC in Allen.

His Honour held that, when considering ‘matters of international concern’ to which the limited application provisions of the DDA purport to give effect, the relevant date at which to consider what matters are of international concern is the date of the alleged contravention of the DDA, not the date of commencement of the DDA (March 1993). His Honour stated:

The subject matter with which s 12(8) is concerned is, of its nature, changing. Thus, matters that are not of international concern or the subject of a treaty in March 1993 may well become matters of international concern or the subject of a treaty at a later date. Section 12(8) is ambulatory in the sense that it intends to give the Act the widest possible operation permitted by s 51(xxix).[35]

The approach of Merkel J was followed by Raphael FM in Vance v State Rail Authority.[36]

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5.1.3 Retrospectivity of the DDA

In Parker v Swan Hill Police,[37] the applicant complained of discrimination against her son as a result of events occurring in 1983. North J held that the DDA, which commenced operation in 1993, did not have retrospective operation. The application was therefore dismissed.[38]

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5.1.4 Jurisdiction over decisions made overseas

The issue of whether the DDA applies to decisions made overseas to engage in discrimination in Australia arose for consideration in Clarke v Oceania Judo Union.[39] Mr Clarke alleged that the respondent discriminated against him, contrary to s 28 of the DDA dealing with sporting activities, on the basis of his disability (blindness) when he was prohibited from:

The respondent brought an application for summary dismissal, arguing that the appropriate jurisdiction to hear the matter was that of New Zealand, on the basis that this was where the respondent was incorporated and was where the relevant decision to exclude Mr Clarke from the contest was made. 

Raphael FM dismissed the respondent’s application. His Honour held where relevant act/s of discrimination occurred within Australia, it is irrelevant where the actual decision to discriminate was made.[40]

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5.2 Disability Discrimination Defined

5.2.1 ‘Disability’ defined

Section 4(1) of the DDA defines ‘disability’ as follows:

disability, in relation to a person, means:

(a) total or partial loss of the person’s bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person’s body; or

(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in
disturbed behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(k) is imputed to a person.

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(a) Identifying the disability with precision

The decision of the Full Federal Court in Qantas Airways Ltd v Gama[41] highlights the need to identify the relevant disability with some precision, as well as identifying how the alleged discrimination is based on that particular disability.

Mr Gama suffered from a number of workplace injuries, as well as depression. At first instance,[42] Raphael FM accepted that a derogatory comment in the workplace that Mr Gama climbed the stairs ‘like a monkey’ constituted discrimination on the basis of race as well as disability. His Honour also held that certain comments about Mr Gama manipulating the workers compensation system constituted discrimination on the basis of disability.

On appeal, the Full Federal Court upheld the findings of race discrimination, but overturned the findings of disability discrimination. Whilst the Court noted that it was not in dispute that Mr Gama had suffered a number of workplace injuries over a long period of time, the Court accepted the submission by Qantas that Raphael FM’s reasons

did not identify the relevant disability nor the particular way in which the remarks constituted less favourable treatment because of the disability. Rather the remarks tend to reflect a belief that Mr Gama had made a claim for workers compensation to which he was not entitled.

In our opinion the learned magistrate’s findings of discrimination of the grounds of disability cannot be sustained.[43]

Nevertheless, as discussed at 7.2.1(b), despite overturning the finding of a breach of the DDA, the Full Court did not disturb the award of damages in Mr Gama’s favour.[44]

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(b) Distinction between a disability and its manifestations

Another issue of contention in interpreting paragraphs (f) and (g) of this definition has been whether, and to what extent, a distinction is to be drawn between a disability and its manifestations.

The issue has been settled as a result of the decision of the High Court in Purvis v New South Wales (Department of Education and Training)[45] (‘Purvis’). The appellant in that matter alleged that his foster son (‘the student’) was discriminated against on the ground of his disability when he was expelled from a school run by the respondent.

The student suffered from behavioural problems and other disabilities resulting from severe brain injury sustained when he was six or seven months old. He was permanently excluded from his school because of incidents of ‘acting out’ which included verbal abuse and incidents involving kicking and punching.

The appellant claimed that the respondent had discriminated against the student by subjecting him to a ‘detriment’ in his education and by suspending and eventually excluding him from the school because of his misbehaviour.

The Court considered whether the definition of disability in paragraph (g) (‘a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour’) refers only to the underlying disorder suffered by the student, that is, his brain injury, or whether it includes the behavioural manifestations of that disorder.[46]

The former approach had been taken by the Full Federal Court, which held:

In our opinion, [the student’s] conduct was a consequence of the disability rather than any part of the disability within the meaning of s 4 of the Act. This is made quite explicit in subs (g), which most appropriately describes the disability in question here and which distinguishes between the disability and the conduct which it causes...[47]

This approach was rejected by the High Court. All members of the Court (apart from Callinan J who did not express a view)[48] found that the definition of disability in s 4 of the DDA can include the functional limitations that may result from an underlying condition.

Kirby and McHugh JJ noted:

It is [the student’s] inability to control his behaviour, rather than the underlying disorder, that inhibits his ability to function in the same way as a non-disabled person in areas covered by the Act, and gives rise to the potential for adverse treatment. To interpret the definition of ‘disability’ as referring only to the underlying disorder undermines the utility of the discrimination prohibition in the case of hidden impairment.[49]

Gummow, Hayne and Heydon JJ held that the paragraphs of the definition of ‘disability’ are not to be read as ‘mutually exclusive categories of disability’ and have an ‘overlapping operation’.[50] They also noted that to identify the student’s disability by reference only to the physiological changes which his illness brought about in his brain, and not the behaviour it causes, would describe his disability incompletely.[51] Furthermore, they stated that:

to focus on the cause of the behaviour, to the exclusion of the resulting behaviour, would confine the operation of the Act by excluding from consideration that attribute of the disabled person (here, disturbed behaviour) which makes that person ‘different’ in the eyes of others.[52]

The majority of the Court went on, however, to hold that the respondent did not unlawfully discriminate against the student ‘because of’ his disability when it suspended and then expelled him from the school by reason of his behaviour. This is discussed further in 5.2.2(a) below.

However, whether or not particular negative behaviour will be attributed to an underlying disability is a question of fact which may vary from case to case. In Rana v Flinders University of South Australia,[53] Lindsay FM noted that the decision in Purvis ‘establishes beyond doubt...that no distinction is to be drawn between the disability and its manifestations for the purposes of establishing whether discrimination has occurred’.[54] However, in deciding the matter before him, Lindsay FM found that there was insufficient evidence that the negative behaviour that had caused the respondent to exclude the applicant from certain university courses was, in fact, a manifestation of his mental illness, rather than having some other cause.[55]

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5.2.2 Direct discrimination under the DDA

Section 5 of the DDA defines what is generally known as ‘direct’ discrimination. It 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.

Three significant issues have arisen in relation to this definition of discrimination:

(a) issues of causation, intention and knowledge;
(b) the ‘comparator’ under s 5 of the DDA; and
(c) the concept of ‘accommodation’ under s 5(2) of the DDA.

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(a) Issues of causation, intention and knowledge

(i) Causation and intention

Those sections which make disability discrimination unlawful under the DDA provide that it is unlawful to discriminate against a person ‘on the ground of’ the person’s disability.[56] Section 5(1) of the DDA provides that discrimination occurs ‘on the ground of’ a disability where there is less favourable treatment ‘because of’ the aggrieved person’s disability. It is well established that the expression ‘because of’ requires a causal connection between the disability and any less favourable treatment accorded to the aggrieved person. It does not, however, require an intention or motive to discriminate.

In Waters v Public Transport Corporation[57] (‘Waters’), the High Court considered the provisions of the Equal Opportunity Act 1984 (Vic). Section 17(1) of that Act defined discrimination as including, relevantly, less favourable treatment ‘on the ground of the status’ of a person, ‘status’ being defined elsewhere in that Act to include disability. Mason CJ and Gaudron J held:

It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations.[58]

In Purvis v New South Wales (Department of Education and Training)[59] (‘Purvis’), McHugh and Kirby JJ reviewed both English and Australian authority and concluded that:

while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.[60]

Motive may nevertheless be relevant to determining whether or not an act is done ‘because of’ disability.[61] In Purvis, Gummow, Hayne and Heydon JJ stated:

we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed ‘because of’ disability. Rather, the central questions will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability. Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.[62]

It appears to be accepted that a ‘real reason’ or ‘true basis’ test is appropriate in determining whether or not a decision was made ‘because of’ a person’s disability.

In Purvis, McHugh and Kirby JJ stated that the appropriate test is not a ‘but for’ test, which focuses on the consequences for the complainant, but one that focuses on the mental state of the alleged discriminator and considers the ‘real reason’ for the alleged discriminator’s act.[63] Gleeson CJ in Purvis similarly inquired into the ‘true basis’ of the impugned decision. In that case, the antisocial and violent behaviour which formed part of the student’s disability had caused his expulsion from the school. Gleeson CJ held:

The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled ... If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However, ss 5, 10 and 22 [of the DDA] are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil. In the light of the school authority’s responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil’s disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal’s decision was the danger to other pupils and staff constituted by the pupil’s violent conduct, and the principal’s responsibilities towards those people.[64]

In Forbes v Australian Federal Police (Commonwealth)[65] (‘Forbes’), the Full Federal Court had to consider whether the Australian Federal Police (‘AFP’) discriminated against the applicant when it withheld certain information about her depressive illness from a review panel convened to consider her re-employment.

At first instance,[66] Driver FM had held that a relevant issue for the review panel was the apparent breakdown in the relationship between the applicant and the AFP. His Honour held that the information relating to the applicant’s illness would have helped to explain that breakdown. He considered that the AFP was therefore under an obligation to put before the review panel information concerning the applicant’s illness, as its failure to do so left the review panel ‘under the impression that [the appellant] was simply a disgruntled employee’.[67]

On appeal, however, the Full Court found that his Honour had erred in finding discrimination, as he had not made a finding that the decision of the AFP was ‘because of’ the appellant’s disability. The Full Court stated:

It is, however, one thing for the AFP to have misunderstood its responsibilities to the Panel or to the appellant (if that is what the Magistrate intended to convey). It is quite another to conclude that the AFP’s actions were ‘because of’ the appellant’s depressive illness. The Magistrate made no such finding.

In [Purvis], there was disagreement as to whether the motives of the alleged discriminator should be taken into account in determining whether that person has discriminated against another because of the latter’s disability. Gummow, Hayne and Heydon JJ thought that motive was at least relevant. Gleeson CJ thought that motive was relevant and, perhaps, could be determinative. McHugh and Kirby JJ thought motive was not relevant. All agreed, however, that it is necessary to ask why the alleged discriminator took the action against the alleged victim.

In the present case, therefore, it was necessary for the Magistrate to ask why the AFP had withheld information about the appellant’s medical condition from the Panel and to determine whether (having regard to s 10) the reason was the appellant’s depressive illness. His Honour did not undertake that task and therefore failed to address a question which the legislation required him to answer if a finding of unlawful discrimination was to be made. His decision was therefore affected by an error of law.[68] (emphasis in original)

The Court further found that the AFP’s decision to withhold the information about the appellant’s medical condition from the review panel was not because of the appellant’s disability, but rather because the AFP believed that she did not have a disability.[69]

The reasoning in Forbes was subsequently applied in Hollingdale v North Coast Area Health Service,[70] where the applicant was dismissed from her employment because of her refusal to attend work. Driver FM found that the respondent had dismissed the applicant not because of her disability (keratoconus), but because it believed that she was a ‘malingerer’:

Ms Hollingdale refused to attend work ... because she claimed she was unfit for work because of her keratoconus. She had a medical certificate certifying that she was unfit for work. The Area Health Service refused to accept it. I find that the Area Health Service believed that Ms Hollingdale was malingering. No other conclusion is reasonably open on the evidence. It was because the Area Health Service believed that Ms Hollingdale was malingering, and therefore had no medical reason for non attendance at work, that she was dismissed. It necessarily follows that her keratoconus was not the reason for her dismissal. Rather, the reason was the belief of the Area Health Service that Ms Hollingdale had no medical condition which prevented her from working. An employer does not breach the DDA by dismissing a malingerer or someone who is believed to be one [footnote: Forbes v Commonwealth [2004] FCAFC 95].[71]

In cases where the alleged treatment is based on certain facts or circumstances that are inextricably linked to the complainant’s disability, a court may be more inclined to accept that such treatment is ‘because of’ that disability. For example, in Wiggins v Department of Defence – Navy[72] (‘Wiggins’) the Navy argued that its refusal to transfer the applicant to other duties was not because of her disability, but because of her absences from work. McInnis FM rejected this submission, saying that

the absence was clearly due to the depression and the submissions by the Respondent seeking to distinguish the absence from the disability should not be permitted. The leave taken by the Applicant I am satisfied was due almost entirely to her depressive illness for which she required treatment. It is inextricably related to her disability and in turn it was the disability which effectively caused the concern ... and led to the transfer.[73]

Similarly, in Ware v OAMPS Insurance Brokers Ltd,[74] Driver FM stated:

The question is why was Mr Ware demoted? Was it because of or by reason of his disabilities?

...

Mr Ware’s absences from the workplace provided Mr Cocker [of the respondent] with what he regarded as sufficient cause for demotion but the real reason for the demotion was that Mr Cocker had exhausted his capacity to accommodate Mr Ware’s condition. To my mind, this establishes a sufficient causal link between the less favourable treatment and Mr Ware’s disabilities.[75]

In relation to the applicant’s dismissal from employment, his Honour concluded:

To the extent that the termination decision was based upon pre-existing concerns about Mr Ware’s performance and behaviour, it was discriminatory. Mr Ware’s performance and behaviour were influenced by his disabilities. ... Mr Crocker had accepted (grudgingly) that no summary dismissal action would be taken. Mr Ware would be given the chance to prove himself by reference to specified criteria. He was not given a reasonable opportunity to prove himself and he was not assessed against those criteria. The hypothetical comparator would have been judged against those criteria. Mr Ware was not judged against those criteria essentially because Mr Crocker changed his mind. In dismissing Mr Ware, Mr Crocker recanted the consideration that he gave [the applicant] by reference to his disabilities. The dismissal was therefore because of those disabilities.[76]

Whilst the above decisions all concentrated on discerning the causal basis of the alleged discriminatory treatment, it is important to also recall that the DDA provides that a person’s disability does not need to be the sole, or even the dominant reason for a particular decision. Section 10 provides:

10 Act done because of disability and for other reason

If:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);

then, for the purposes of this Act, the act is taken to be done for that reason.

Accordingly, in circumstances where the alleged discriminator’s conduct may be attributable to multiple reasons, only one reason needs to be based on the person’s disability to constitute discrimination.

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(ii) Knowledge

Related to the question of intention and causation is the issue of the extent to which an alleged discriminator can be found to have discriminated against another person on the ground of his or her disability where the discriminator has no direct knowledge of that disability. It appears that, at least in some circumstances, a lack of such knowledge will preclude a finding of discrimination.

The issue did not directly arise in Purvis, as the school knew of the disability of the student. However, at first instance, Emmett J made the following obiter comments:

where an educational authority is unaware of the disability, but treats a person differently, namely, less favourably, because of that behaviour, it could not be said that the educational authority has treated the person less favourably because of the disability...[77]

A similar approach was taken by Wilcox J in Tate v Rafin.[78] In that case, the applicant had his membership of the respondent club revoked following a dispute. The applicant claimed, in part, that the revocation of his membership was on the ground of his psychological disability which manifested itself in aggressive behaviour, although the respondent club was unaware of his disability. Wilcox J concluded that the club had not treated Mr Tate less favourably because of his psychological disability:

The psychological disability may have caused Mr Tate to behave differently than if he had not had a psychological disability, or differently to the way another person would have behaved. But the disability did not cause the club to treat him differently than it would otherwise have done; that is, than it would have treated another person who did not have a psychological disability but who had behaved in the same way. It could not have done, if the club was unaware of the disability.[79]

His Honour’s reasoning is consistent with the decision of the Full Court in Forbes (discussed above), where the Court accepted that the respondent had withheld certain information about the applicant’s medical condition on the ground that it considered that she did not have a disability and that this did not amount to discrimination ‘because of’ disability.[80]

However, it is likely that the reasonableness of a respondent’s purported disbelief of an applicant’s disability will be an important factor in applying the reasoning in Forbes. In Forbes there were a number of significant factors to support the respondent’s disbelief that the applicant had a disability. For example:

In the absence of such factors to support a respondent’s disbelief of an aggrieved person’s disability, it may be difficult for a respondent to convince the court that the purported disbelief of the disability was genuinely the true basis of the less favourable treatment.

Whilst the above cases illustrate that lack of knowledge of the aggrieved person’s disability may preclude a finding of discrimination, it is important to also note that imputed or constructive knowledge of the person’s disability may suffice. For example, in Wiggins the Navy argued that the officer who demoted the applicant did not know the nature and extent of the applicant’s disability, only that the applicant had a medical condition confining her to on-shore duties. On this basis, the Navy submitted that it had no relevant knowledge of the applicant’s disability.

McInnis FM rejected the Navy’s submission. His Honour ‘deemed’ the officer to have known the nature and extent of the applicant’s disability as he could have accessed her medical records if he wanted to. This was sufficient to ‘establish knowledge in the mind of’ the Navy.[81] His Honour stated:

I reject the submission of the Respondent that the Navy does not replace Mr Jager as the actual decision-maker in the context or that the maintenance of information in a file does not equate to operational or practical use in the hands of the discriminator. In my view that is an artificial distinction which should not be permitted in discrimination under human rights legislation. To do so would effectively provide immunity to employers who could simply regard all confidential information not disclosed to supervisors as then providing a basis upon which it could be denied that employees as discriminators would not be liable and hence liability would be avoided by the employer.[82]

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(b) The ‘comparator’ under s 5 of the DDA

Section 5(1) of the DDA requires a comparison to be made between the way in which a person with a disability is treated (or it is proposed they be treated) and the way in which a person ‘without the disability’ is treated or would be treated in circumstances that are the same or not materially different. That other person, whether actual or hypothetical, is often referred to as the ‘comparator’.

The issue of how an appropriate comparator is chosen in a particular case has been complicated and vexed since the commencement of the DDA. While the law appears to have been settled by the decision of the High Court in Purvis, the issue is likely to remain a contentious one.

The focus of much of that controversy has centred around the identification of the circumstances which are the same or not materially different.

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(i) Early approaches

Sir Ronald Wilson suggested in Dopking v Department of Defence[83] that:

It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment ... could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.[84]

This approach was approved in IW v City of Perth[85] (‘IW’) by Toohey J (with Gummow J concurring) and Kirby J, the only members of the Court to consider this issue. In that case the aggrieved person complained of discrimination because of infection with HIV/AIDS. The respondent argued that the comparator should be imbued with the characteristics of a person infected with HIV/AIDS. As a consequence, there would not be discrimination if a person with HIV/AIDS was treated less favourably on the basis of a characteristic pertaining to HIV/AIDS sufferers, such as ‘infectiousness’, so long as the discriminator treated less favourably all persons who were infectious. Their Honours rejected this submission. Cases dealt with under the DDA prior to Purvis also applied this approach.[86]

A similar approach was adopted by Commissioner Innes in Purvis v The State of NSW (Department of Education).[87] The student in that case, whose behavioural problems were an aspect of his disability, was suspended, and eventually expelled, from his school. Commissioner Innes found that the comparator for the purpose of s 5 of the DDA was another student at the school in the same year but without the disability, including the behaviour which formed a part of that disability.

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(ii) The Purvis decision

The approach of Commissioner Innes was rejected on review by both Emmett J[88] and the Full Federal Court.[89] The Full Court found that the proper comparison for the purpose of s 5 of the DDA was

between the treatment of the complainant with the particular brain damage in question and a person without that brain damage but in like circumstances. This means that like conduct is to be assumed in both cases.

....

The principal object of the Act is to eliminate discrimination on the ground of disability (of the defined kind) in the nominated areas (s 3). The object is to remove prejudice or bias against persons with a disability. The relevant prohibition here is against discrimination on the ground of the person’s disability (s 22). Section 5 of the Act is related to the assessment of that issue. It is difficult to illustrate the comparison called for by s 5 by way of a wholly hypothetical example, as it involves a comparison of treatment by the particular alleged discriminator, and requires findings of fact as to the particular disability, as to how the alleged discriminator treats or proposes to treat the aggrieved person, and as to how that alleged discriminator treats or would treat a person without the disability. The task is to ascertain whether the treatment or proposed treatment is based on the ground of the particular disability or on another (and non-discriminatory) ground. There must always be that contrast. To be of any value, the hypothetical illustration must make assumptions as to all factual integers.[90] (emphasis in original)

The Full Court also noted that the decisions of Toohey and Kirby JJ in IW were given in the context of the Equal Opportunity Act 1984 (WA) which has a different structure to the DDA.

The majority of the High Court in Purvis took the same approach as the Full Federal Court. While accepting that the definition of disability includes its behavioural manifestations (see 5.2.1 above), the majority nevertheless held that it was necessary to compare the treatment of the pupil with the disability with a student who exhibited violent behaviour but did not have the disability. Gleeson CJ stated:

It may be accepted, as following from paras (f) and (g) of the definition of disability, that the term ‘disability’ includes functional disorders, such as an incapacity, or a diminished capacity, to control behaviour. And it may also be accepted, as the appellant insists, that the disturbed behaviour of the pupil that resulted from his disorder was an aspect of his disability. However, it is necessary to be more concrete in relating part (g) of the definition of disability to s 5. The circumstance that gave rise to the first respondent’s treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. In his case, that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour. Another pupil ‘without the disability’ would be another pupil without disturbed behaviour resulting from a disorder; not another pupil who did not misbehave. The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour.[91]

Similarly, in their joint judgment, Gummow, Hayne and Heydon JJ stated:

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled...

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘discriminator’. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability ... Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

In the present case, the circumstances in which [the student] was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils.[92]

By contrast, McHugh and Kirby JJ (in dissent) applied the earlier approach noted above, stating:

Discrimination jurisprudence establishes that the circumstances of the person alleged to have suffered discriminatory treatment and which are related to the prohibited ground are to be excluded from the circumstances of the comparator.[93] (emphasis in original)

Their Honours disagreed with the majority that the application of the comparator test in the circumstances of the case called for a comparison with a person without the student’s disability but who had engaged in the same violent behaviour, on the basis that:

[the student’s] circumstances [are] materially different from those of a person who is able to control his or her behaviour, but who is unwilling to do so for whatever reason. In [the student’s] circumstances, the behaviour is a manifestation of his disability – for the ‘normal’ person it is an act of freewill.[94]

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(iii) Applying Purvis

In applying Purvis, courts have had close regard to the particular facts of the case in considering how the comparator should be constructed, and how that comparator would have been treated by the respondent in the same or similar circumstances to the applicant. The following cases illustrate the challenges raised by Purvis in applying the comparator element of direct discrimination.

In Power v Aboriginal Hostels Ltd,[95] Selway J followed the approach set out by Gummow, Hayne and Heydon JJ in Purvis. His Honour considered the correct approach to a claim of discrimination in which an applicant was dismissed from work following absences for illness, concluding:

If the employer would treat any employee the same who was absent from work for some weeks (whether or not the employee had a disability or not) then this would not constitute discrimination under the DDA. On the other hand, if the employer terminates the employment of an employee who has a disability (including an imputed disability) in circumstances where the employer would not have done so to an employee who was not suffering a disability then this constitutes discrimination for the purpose of the DDA.[96]

The same approach had been taken by the FMC in the earlier case of Randell v Consolidated Bearing Company (SA) Pty Ltd.[97] The applicant, who had a mild dyslexic learning difficulty, was employed by the respondent on a traineeship to work in the warehouse sorting and arranging stock for delivery. The applicant was dismissed after seven weeks on the basis of his poor work performance.

Raphael FM found that the appropriate comparators were other trainees employed by the respondent who had difficulties with their performance.[98] The evidence established that in the past the respondent had sought assistance in relation to such difficult trainees from Employment National but, in the case of the applicant, it had failed to do so. Raphael FM concluded that the applicant had been discriminated against on the basis of his disability.

In Minns v New South Wales,[99] the applicant had been a student at two State schools. The applicant alleged that those schools had directly discriminated against him on the basis of his disabilities (Asperger’s syndrome, Attention Deficit Hyperactivity Disorder and Conduct Disorder) by requiring that he attend part-time, by suspending him and by eventually expelling him.

In determining whether the allegation of direct discrimination had been made out, Raphael FM applied the reasoning of Emmett J in Purvis.[100] As it was not submitted by either party that an actual comparator existed in this case, Raphael FM held that the appropriate comparator was a hypothetical student who had moved into both high schools with a similar history of disruptive behaviour to that of the applicant.[101] His Honour ultimately found that there was no direct disability discrimination. In respect of most of the allegations he could not conclude that the treatment of the applicant had been ‘less favourable’ than that of this hypothetical student.[102]

In Forbes, the appellant contended that the decision of the review panel not to reemploy her was based on her absence from work and that this absence was in turn a manifestation of her depressive illness. It was therefore argued that the decision not to reemploy her discriminated against her on the ground of her disability. The Full Court rejected this argument:

The Magistrate found that the appellant’s absence from work for a period of over two years was ‘clearly important in establishing [the] breakdown’ of the relationship between herself and the AFP. If the [DDA] makes it unlawful to refuse re-employment to someone because of their lengthy absence from work, where that absence is due to a disability, the appellant’s submission would have force. The difficulty is that the appellant must establish that the AFP treated her less favourably, in circumstances that are the same or are not materially different, than it treated or would have treated a non-disabled person. The approach of the majority in [Purvis] makes it clear that the circumstances attending the treatment of the disabled person must be identified. The question is then what the alleged discriminator would have done in those circumstances if the person concerned was not disabled.

Here, the appellant was not reappointed because the history of her dealings with the AFP, including her absence from work for nearly three years, showed that the employment relationship had irretrievably broken down. There is nothing to indicate that in the same circumstances, the AFP would have treated a non-disabled employee more favourably. On the contrary, the fact that the Panel did not know of the appellant’s medical condition indicates very strongly that it would have refused to reemploy a non-disabled employee who had been absent from work for a long period and whose relationship with the AFP had irretrievably broken down.[103] (emphasis in original)

The Full Court also made the following comments, with reference to the decision of the High Court in Purvis, in relation to the appropriate comparator (see 5.2.2(a) above):

The circumstances attending the AFP’s treatment of the appellant would seem to have included the AFP’s genuine belief that the appellant, despite her claims to have suffered from a serious depressive illness, did not in fact have such an illness. That belief was in fact mistaken, but it explains the AFP’s decision to regard the information concerning the appellant’s medical condition as irrelevant to the question of her re-employment. This suggests that the appropriate comparator was an able-bodied person who claimed to be disabled, but whom the AFP genuinely believed (correctly, as it happens) had no relevant disability. If this analysis is correct, it seems that the AFP treated the appellant no less favourably than, in circumstances that were the same or were not materially different, it would have treated a non-disabled officer.[104]

The decision in Purvis was also applied in Fetherston v Peninsula Health[105] (‘Fetherston’) in which a doctor’s employment was terminated following the deterioration of his eyesight and related circumstances. Heerey J identified the following ‘objective features’ relevant for the comparison required under s 5, noting that ‘one should not “strip out” [the] circumstances which are connected with [the applicant’s] disability: Purvis at [222], [224]’:

(a) Dr Fetherston was a senior practitioner in the ICU, a department where urgent medical and surgical skills in life-threatening circumstances are often required;

(b) Dr Fetherston had difficulty in reading unaided charts, x-rays and handwritten materials;

(c) There were reports of Dr Fetherston performing tracheostomies in an unorthodox manner, apparently because of his visual disability;

(d) Medical and nursing staff expressed concern about Dr Fetherston’s performance of his duties in ways apparently related to his visual problems;

(e) In the light of all the foregoing Dr Fetherston attended an independent eye specialist at the request of his employer Peninsula Health but refused to allow the specialist to report to it.[106]

His Honour went on to consider how the respondents would have treated a person without the applicant’s disability in those circumstances and held:

The answer in my opinion is clear. Peninsula Health and any responsible health authority would have in these circumstances treated a hypothetical person without Dr Fetherston’s disability in the same way. An independent expert assessment would have been sought. A refusal to allow that expert to report must have resulted in termination of employment.[107]

In Trindall v NSW Commissioner of Police[108] (‘Trindall’) the applicant complained of disability and race discrimination in his employment as a NSW police officer. The applicant had an inherited condition known as ‘sickle cell trait’. He asserted that because of this condition he was given restricted duties and subjected to unnecessary and unreasonable restrictions in his employment. Driver FM held that the appropriate hypothetical comparator was:

(a) a New South Wales police officer without the sickle cell trait;

(b) who is generally healthy but who has concerns about his health; and

(c) who has a low risk of injury of a similar nature to that of a person with the sickle cell trait and who should take reasonable precautions to avoid that risk of injury.[109]

His Honour found that there was no discrimination in the initial informal conditions imposed on the applicant pending further medical assessment.[110] However, the formal conditions subsequently imposed were not compelled by the applicant’s medical certificate and were discriminatory, in breach of ss 5 and 15(2)(a) of the DDA.[111]

In Ware v OAMPS Insurance Brokers Ltd,[112] the applicant, who suffered from Attention Deficit Disorder and depression, claimed that the respondent had directly discriminated against him in his employment on the basis of his disability contrary to ss 15(2)(c) and 15(2)(d) of the DDA. The respondent claimed that its treatment of the applicant had been because of his poor work performance, not his disability.

Applying Purvis, Driver FM held that the proper comparator in this case was:

(a) an employee of OAMPS having a position and responsibilities equivalent of those of Mr Ware;

(b) who did not have Attention Deficit Disorder or depression; and

(c) who exhibited the same behaviours as Mr Ware, namely poor interpersonal relations, periodic alcohol abuse and periodic absences from the workplace, some serious neglect of duties and declining work performance, but with a formerly high work ethic and a formerly good work history.[113]

Driver FM held that the respondent had treated the applicant less favourably by demoting and subsequently dismissing the applicant.[114] This was because the respondent had not demoted or dismissed the applicant with reference to the criteria it had indicated to the applicant by letter that his future performance would be assessed, but some other criteria (namely, his unauthorised absences from the workplace for which he was subsequently granted sick leave).[115] His Honour noted that the applicant’s ‘relaxed attitude to his attendance’ had been ‘tolerated’ by the respondent for a long time and a work place culture of ‘long lunches’ was also ‘tolerated’ by the respondent. His Honour then held that if unauthorised absence was to be ‘the predominant consideration’ for the future treatment of the applicant, that should have been made clear to the applicant in the respondent’s letter which specified the criteria against which the applicant’s future performance would be assessed.[116]

Consequently, his Honour held that the applicant had been treated less favourably than the hypothetical comparator in being demoted and subsequently dismissed, as the hypothetical comparator would have been assessed against the specified performance criteria:

If the hypothetical comparator had had the same work restrictions placed on him ... it is reasonable to suppose that those work restrictions would have reflected the concerns of OAMPS and that the hypothetical comparator’s performance would have been judged against the criteria stipulated. In the case of [the applicant], the employer, having accepted his return to work on a restricted basis, having regard to his disabilities, treated him unfavourably by demoting him by reference to a factor to which no notice was given in the letter ... setting out the conditions which [the applicant] must meet and the criteria against which his performance would be assessed. I find that the hypothetical comparator would not have been treated in that way.[117]

To the extent that the termination decision was based upon [the applicant’s] absence from the workplace on 22 and 24 September 2003, this was less favourable treatment than the hypothetical comparator would have received in the same or similar circumstances because of [the applicant’s] disabilities, for the same reasons I have found the demotion decision was discriminatory. The absences were properly explained after the event and a medical certificate was provided. The hypothetical comparator would not have been dismissed for two days absence for which sick leave was subsequently granted.[118]

In Hollingdale v North Coast Area Health Service,[119] Driver FM held that it was not discriminatory for the respondent to require the applicant to undergo a medical assessment following a period of serious inappropriate behaviour caused by the applicant’s bi-polar disorder. His Honour held that a hypothetical comparator, being an employee in a similar position and under the same employment conditions as the applicant who behaved in the same way but did not have bi-polar disorder,[120] would have been treated the same way:

If such a hypothetical employee had exhibited the inappropriate behaviour of Ms Hollingdale to which a medical cause was suspected (as it was here) medical intervention would almost certainly have been sought. I have no reason to believe that the hypothetical comparator would have been treated any differently than Ms Hollingdale. It was untenable for the Area Health Service to have a mental health employee exhibiting behaviours which might stem from a mental disability and which adversely impacted upon other employees at the workplace.[121]

In Moskalev v NSW Dept of Housing,[122] the applicant alleged that the Department directly discriminated against him by refusing to put him on its priority housing register. Driver FM held that the proper comparator was a person without the applicant’s disability, who was seeking accommodation of the same kind and who asserted a medical or other reason for requiring that accommodation.[123]

In Huemer v NSW Dept of Housing,[124] the applicant alleged that his tenancy was terminated by the Department because of his mental illness. In rejecting the claim, Raphael FM held that the Department’s action was a consequence of numerous complaints about the applicant’s anti-social behaviour and the decision to evict him was made by the Consumer Trade and Tenancies Tribunal on the basis that he had breached his tenancy agreement.[125] In relation to whether the applicant was treated less favourably due to anti-social behaviour caused by his disability, Raphael FM applied Purvis and concluded that:

The course of action taken in dealing with the manifestation of Mr Huemer’s disabilities was taken for the protection of the other tenants of the estate and the staff of [the Department]. It was action of a type similar to that discussed in Purvis.[126]

In Gordon v Commonwealth,[127] the applicant’s provisional employment as a field officer with the Australian Tax Office (ATO) was withdrawn whilst he was completing induction, based on medical reports which showed (inaccurately, as it turned out) that he had severe high blood pressure which was said to affect his ability to drive. The ATO argued that the applicant was dismissed, not because of his high blood pressure, but because he failed to meet one of the pre-employment conditions, namely being certified fit for the position. Heerey J rejected that submission, stating:

viewed in a practical way, the inescapable conclusion from the evidence is that the real and operative reason for withdrawing the offer was Mr Gordon’s imputed hypertension.[128]

It is worth noting that in a decision made under the SDA,[129] Gordon J noted that ‘the test of discrimination is not whether the discriminatory characteristic is the “real reason” or the “only reason” for the conduct but whether it is “a reason” for the conduct’.[130] His Honour took the view that the Federal Magistrate at first instance[131] had ‘impermissibly emphasised the motive or driving reason behind the [employer’s] conduct, instead of focusing on whether the conduct occurred because of [the employee’s] sex, pregnancy or family responsibilities’.[132] His Honour did not, however, discuss the decision in Purvis upon which the Court at first instance had based its analysis.[133]

In Razumic v Brite Industries,[134] the Court had to consider the application of the reasoning in Purvis to a disability discrimination complaint brought against an employer which predominantly employed staff with disabilities. The applicant sought to argue that the relevant comparator was a person with a disability. Ryan J rejected this argument holding that this argument

ignores the fact that not all the other disabled employees of the respondent suffered from the same disability as she does. It also ignores the point of the test formulated by the majority in Purvis which erects, as the relevant comparator, a person, without the applicant’s disabilities, who exhibits the same behaviour as the applicant.[135]

Ryan J rejected the applicant’s claim of direct disability discrimination holding that he was satisfied that

had a person without the applicant’s disabilities caused the same degree and disruption within the respondent’s unique workplace, he or she would have been dismissed long before that decision was taken in relation to the applicant.[136]

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(c) ‘Accommodation’ under s 5(2) of the DDA

Section 5(2) of the DDA provides that for the purposes of the comparison required by subsection (1):

[The] 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.

This section has been said to acknowledge that people with disabilities may require different treatment to achieve equality. In AJ & J v A School (No 1),[137] Sir Ronald Wilson stated:

It will be remembered that s 5(2) of the Act ensures that it is not just a question of treating the person with a disability in the same way as other people are treated; it is to be expected that the existence of the disability may require the person to be treated differently from the norm; in other words that some reasonable adjustment be made to accommodate the disability.[138]

In subsequent cases, however, it has been made clear that s 5(2) does not impose a positive obligation to accommodate a person’s disability. For example, in Commonwealth v Humphries,[139] the complainant, who was visually impaired, alleged that she had been discriminated against on the basis of her disability by her employer as it had failed to provide her with equipment to perform her job. Kiefel J held that there was no general implied obligation on employers to take such steps as were necessary to enable disabled employees to fulfil their employment duties. Her Honour stated:

I do not think the stated objects of the DDA go that far. ... The obligation on employers, then, is not to discriminate against disabled employees because of their disability. An unreasonable refusal to assist them may amount to wrongful conduct in a particular case. Section 5 however, does not permit the question, as to whether there is discrimination, to be answered in the affirmative on each occasion where an employer has in some way failed to assist a disabled employee.[140]

In Purvis, Gummow, Hayne and Heydon JJ expressly rejected a suggestion that s 5(2) imposed an obligation to accommodate or had the effect that a failure to provide accommodation would itself constitute ‘less favourable treatment’. They stated:

What is meant by the reference, in s 5(1) of the Act, to ‘circumstances that are the same or are not materially different’? Section 5(2) provides some amplification of the operation of that expression. It identifies one circumstance which does not amount to a material difference: ‘the fact that different accommodation or services may be required by the person with a disability’. But s 5(2) does not explicitly oblige the provision of that different accommodation or those different services. Rather, s 5(2) says only that the disabled person’s need for different accommodation or services does not constitute a material difference in judging whether the discriminator has treated the disabled person less favourably than a person without the disability.

The Commission submitted that s 5(2) had greater significance than providing only that a need for different accommodation or services is not a material difference. It submitted that, if a school did not provide the services which a disabled person needed and later expelled that person, the circumstances in which it expelled the person would be materially different from those in which it would have expelled other students. In so far as that submission depended upon construing s 5, or s 5(2) in particular, as requiring the provision of different accommodation or services, it should be rejected. As the Commonwealth rightly submitted, there is no textual or other basis in s 5 for saying that a failure to provide such accommodation or services would constitute less favourable treatment of the disabled person for the purposes of s 5.[141]

Callinan J agreed with their Honours’ reasons with respect to the ‘comparator issue’,[142] which would appear to extend to their Honours’ construction of s 5(2). McHugh and Kirby JJ also rejected the suggestion that s 5(2) imposes an obligation to provide accommodation.[143] However, unlike the majority, their Honours suggested that the effect of s 5(2) was that ‘as a practical matter the discriminator may have to take steps to provide the accommodation to escape a finding of discrimination’.[144]

In Forbes, the appellant argued that the AFP had refused to act on medical reports in relation to the appellant’s disability. The Full Court suggested that this submission may have proceeded on the unstated assumption that ss 5 and 15 of the DDA ‘require an employer to provide different or additional services for disabled employees’.[145] The Court commented:

If this were correct, the failure to provide a seriously depressed employee with appropriate counselling services might constitute less favourable treatment for the purposes of s 5(1). Purvis, however, firmly rejects such a proposition. It is true that s 5(2) provides that a disabled person’s need for different accommodation or services does not constitute a material difference in judging whether the alleged discriminator has treated a disabled person less favourably than a non-disabled person. However, s 5(2) cannot be read as saying that a failure to provide different accommodation or services constitutes less favourable treatment of the disabled person for the purposes of s 5(1): Purvis, at 164 [218], per Gummow, Hayne and Heydon JJ; at 158 [104], per McHugh and Kirby JJ.[146]

Similarly, in Fetherston, Heerey J applied Purvis in holding that a failure to provide aids specifically requested by an employee with a visual disability did not contravene the DDA, as the Act ‘does not impose a legal obligation on employers, or anyone else, to provide aids for disabled persons’.[147]

In Tyler v Kesser Torah College,[148] a student with behavioural difficulties was temporarily excluded from the respondent school. The school’s regular discipline policy was not applied to the student and the Court noted as follows:

To that extent, Rabbi Spielman treated Joseph differently from how he would have treated a student without Joseph’s disabilities. However, that fact by itself does not establish unlawful discrimination. The College had already decided in consultation with the Tylers that Joseph had special needs that required a special educational programme. These were special educational services for the purposes of s 5(2) of the DDA. The non application of the College’s usual discipline policy to Joseph was an element of those special services. It follows, in my view, that the non application of the school’s discipline policy to Joseph could not, of itself, be discriminatory for the purposes of s 5(1) of the DDA.[149]

Of course, it must also be remembered that a failure by a respondent to provide reasonable accommodation to meet the needs of a person’s disabilities may nevertheless amount to indirect discrimination. This is considered further below.

Furthermore, in the educational context, the Disability Standards for Education 2005 (‘Education Standards’) now impose a positive obligation on education providers to make ‘reasonable adjustments’ to accommodate the needs of students with disabilities.[150] Accordingly, to the extent that the decisions discussed above suggest that education providers are not under an obligation to provide reasonable accommodation to students with disabilities, those comments would seem to have been overtaken by the Education Standards (see 5.2.5(b) below).

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5.2.3 Indirect discrimination under the DDA

Section 6 of the DDA 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;

(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.

Note that the onus of showing that the impugned requirement or condition is not reasonable rests on the person aggrieved by it (see 5.2.3(d) below).

The following issues have arisen in the context of indirect discrimination under the DDA:

(a) the relationship between ‘direct’ and ‘indirect’ discrimination;

(b) defining the ‘requirement or condition’;

(c) section 6(a) – comparison with persons without the disability;

(d) section 6(b) - ‘reasonableness’; and

(e) section 6(c) - inability to comply with a requirement or condition.

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(a) The relationship between ‘direct’ and ‘indirect’ discrimination

In Waters v Public Transport Corporation[151] (‘Waters’), Dawson and Toohey JJ considered, in obiter comments, whether or not the provisions of the Equal Opportunity Act 1984 (Vic) relating to direct and indirect discrimination (on grounds including ‘impairment’, as was the subject of that case) were mutually exclusive. Citing the judgments of Brennan and Dawson JJ in Australian Iron & Steel Pty Ltd v Banovic[152] (‘Banovic’), which had considered the sex discrimination provisions of the Anti-Discrimination Act 1977 (NSW), their Honours concluded:

discrimination within s 17(1) [direct discrimination] cannot be discrimination within s 17(5) [indirect discrimination] because otherwise the anomalous situation would result whereby a requirement or condition which would not constitute discrimination under s 17(5) unless it was unreasonable could constitute discrimination under s 17(1) even if it was reasonable ... there are strong reasons for ... concluding that s 17(1) and s 17(5) deal separately with direct and indirect discrimination and do so in a manner which is mutually exclusive.[153]

In Minns v New South Wales[154] (‘Minns’), the applicant alleged direct and indirect disability discrimination by the respondent. The respondent submitted that the definitions of direct and indirect discrimination are mutually exclusive and that the applicant therefore had to elect whether to pursue his claim as a direct or indirect discrimination complaint.

Raphael FM cited the views of Dawson and Toohey JJ in Waters, as well as the decision of the Federal Court in Australian Medical Council v Wilson[155] (a case under the RDA), in holding that the definitions of direct and indirect discrimination are mutually exclusive, stating: ‘that which is direct cannot also be indirect’.[156]

However, Raphael FM stated that this does not prevent an applicant from arguing that the same set of facts constitutes direct and indirect discrimination:

The complainant can surely put up a set of facts and say that he or she believes that those facts constitute direct discrimination but in the event that they do not they constitute indirect discrimination.[157]

His Honour relied upon the approach of Emmett J at first instance in New South Wales (Department of Education & Training) v Human Rights and Equal Opportunity Commission[158] and that of Wilcox J in Tate v Rafin[159] to suggest that ‘the same facts can be put to both tests’.[160]

Similarly, in Hollingdale v Northern Rivers Area Health Service,[161] the respondent sought to strike out that part of the applicant’s points of claim that sought to plead the same incident in the alternative as direct and indirect discrimination. Raphael FM said:

There is, in my view, no obligation upon an applicant to make an election between mutually exclusive direct and indirect disability claims. If both claims are arguable on the facts, they may be pleaded in the alternative. The fact that they are mutually exclusive would almost inevitably lead to a disadvantageous costs outcome for the applicant, but that is the applicant’s choice.[162]

In Purvis v New South Wales (Department of Education and Training)[163] (‘Purvis’), the case was only argued before the High Court as one of direct discrimination and the question of the relationship between direct and indirect discrimination was not addressed. The possible factual overlap between the two grounds of discrimination was, however, highlighted in the decision of McHugh and Kirby JJ in an example given in the context of considering ‘accommodation’ under s 5(2) of the DDA.[164] Their Honours cited the example of a ‘student in a wheelchair who may require a ramp to gain access to a classroom while other students do not need the ramp’. In such a case, they stated that s 5(2) makes clear that the circumstances of that student are not materially different for the purposes of s 5(1). However, they continued:

This example also illustrates the unique difficulty that arises in discerning the division between s 5 and s 6 of the Act because s 5(2) brings the requirement for a ramp, normally associated with indirect discrimination, into the realm of direct discrimination.[165]

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(b) Defining the ‘requirement or condition’

The courts have emphasised that the words ‘requirement or condition’ should be construed broadly ‘so as to cover any form of qualification or prerequisite’.[166]

However, applicants must be careful to ensure that ‘the actual requirement or condition in each instance [is] formulated with some precision’.[167] For example, in Ferguson v Department of Further Education,[168] the applicant claimed that the respondent had discriminated against him on the basis of his disability by requiring him to comply with a requirement or condition that he substantially attend his classes, undertake resource based learning and communicate with other students, lecturers and support officers with limited assistance from an Auslan interpreter.[169] Raphael FM ultimately dismissed the application on the basis that, even if the applicant had had the benefit of more assistance there was no evidence that it would have allowed him to complete his course any earlier, as he claimed.[170]

In the course of his reasoning, however, Raphael FM criticised the manner in which the applicant had formulated the relevant requirement or condition in the case:

It may be that if the applicant had somehow incorporated the failure to provide the needs assessment as part of the actual requirement or condition rather than limiting the requirement or condition to attending his classes etc with only limited assistance from an Auslan interpreter a case might have been capable of being made out. An example of such a claim would have been:

TAFE required Mr Ferguson to comply with the requirement or condition that he undertake his learning and complete his course within a reasonable time without the benefit of a needs assessment.

That seems to me to [be] a facially neutral requirement or condition which [the applicant] could have proved that a substantially higher proportion of persons without the disability were able to comply with. He could also have proved that it was not reasonable having regard to the circumstances of his case.[171]

In making those remarks his Honour referred to the comments of Tamberlin J in Catholic Education Office v Clarke[172] (‘CEO v Clarke’) concerning the importance of the proper characterisation of the condition or requirement from the perspective of the person with the disability.[173]

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(i) Distinguishing the requirement from the inherent features of a service

In defining a requirement or condition in the context of goods or services being provided, it is necessary to distinguish the relevant requirement or condition from the inherent features of the particular goods or services. In Waters, Mason CJ and Gaudron J explained this distinction as follows:

the notion of ‘requirement or condition’ would seem to involve something over and above that which is necessarily inherent in the goods or services provided. Thus, for example, it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands.[174]

The distinction between a condition of a service and the service itself was raised at first instance in Clarke v Catholic Education Office[175] (‘Clarke’). The applicant contended that his son (‘the student’), who was deaf, was subjected to indirect discrimination by virtue of the failure of the respondent school to provide Australian Sign Language (‘Auslan’) interpreting assistance. Instead, the school had relied upon the use of note-taking as the primary communication tool to support the student in the classroom. The applicant alleged that this did not allow the student to adequately participate in classroom instruction.

Madgwick J referred to the principle set out in Waters that the DDA is beneficial legislation which is to be broadly construed, noting that:

it would defeat the purpose of the DDA if a narrow interpretation [of the expression ‘requirement or condition’] were to be taken.[176]

His Honour found that the requirement or condition was correctly defined as being a requirement that the student was ‘to participate in and receive classroom instruction without the assistance of an interpreter’.[177] His Honour did not accept the argument by the respondent that it was an intrinsic feature of the respondent’s ‘education’ or ‘teaching’ service that it be conducted in English.

Madgwick J held that a characterisation of the requirement or condition as being participation in classroom instruction without an Auslan interpreter

makes a cogent and fair distinction between the service provided, namely education by classroom instruction or teaching, and an imposed requirement or condition, namely that [the student] participate in such instruction without the assistance of an Auslan interpreter. It is not necessarily inherent in the education of children in high schools that such education be undertaken without the aid of an interpreter. It is not perhaps even necessarily inherent, in an age of computers and cyberspace, that it be conducted to any particular degree