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Federal Discrimination Law: Chapter 5 The Disability Discrimination Act

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Friday 14 December, 2012

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:

  • employment;[7]
  • education;[8]
  • access to premises;[9]
  • the provision of goods, services and
    facilities;[10]
  • the provision of
    accommodation;[11]
  • the sale of land;[12] and
  • the administration of Commonwealth laws and
    programs.[13]

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 5.5[17]below).17 The DDA also empowers HREOC to grant temporary exemptions from the operation of
certain provisions of[18]he
Act.18

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:

  • committing an act of
    victimisation,[20] by subjecting or
    threatening to subject another person to any detriment on the ground that the
    other person:

    • has made or proposes to make a complaint under the DDA or HREOC
      Act;
    • has brought, or proposes to bring, proceedings under those Acts;
    • has given, or proposes to give, any information or documents to a
      person exercising a power or function under those Acts;
    • has attended, or proposes to attend, a conference or has appeared or
      proposes to appear as a witness in proceedings held under those Acts;
    • has reasonably asserted, or proposes to assert, any rights under
      those Acts; or
    • has made an allegation that a person has done an unlawful act under
      Part II of the
      DDA.;[21]
  • inciting, assisting or promoting the doing of an act that is unlawful under
    a provision of Divisions 1, 2 or 3 of Part
    II;[22]
  • publishing or displaying an advertisement or notice that indicates an
    intention by that person to do an act that is unlawful under Divisions 1, 2 or 3
    of Part II;[23] and
  • failing to provide the source of actuarial or statistical data on which an
    act of discrimination was based in response to a request, by notice in writing,
    from the President or
    HREOC.[24]

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]

Note that Australia ratified the United Nations Convention on the Rights
of Persons with
Disabilities
[37] (Disabilities Convention) on 30 March 2008.

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5.1.3 Retrospectivity
of the DDA

In Parker v Swan Hill
Police
,[38] 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.[39]

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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
.[40] 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:

  • competing in the judo Open World Cup tournament held in Queensland;
    and
  • participating in a training camp which followed the tournament unless
    accompanied by a carer.

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.[41]

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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.

(a) Identifying
the disability with precision

The decision of the Full Federal
Court in Qantas Airways Ltd v
Gama
[42] 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,[43] 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.[44]

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.[45]

(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)
[46] (‘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.[47]

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...[48]

This approach was rejected by the High Court. All members of the Court (apart
from Callinan J who did not express a
view)[49] 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.[50]

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’.[51] 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.[52] 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.[53]

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
,[54] 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’.[55] 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.[56]

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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.

(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.[57] 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
[58] (‘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.[59]

In Purvis v New South Wales (Department of Education and
Training)
[60] (‘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.[61]

Motive may nevertheless be relevant to determining whether or not an act is
done ‘because of’
disability.[62] 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’.[63]

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.[64] 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.[65]

In Forbes v Australian Federal Police (Commonwealth)[66] (‘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,[67] 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’.[68]

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.[69] (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.[70]

The reasoning in Forbes was subsequently applied in Hollingdale v
North Coast Area Health
Service
,[71] 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].[72]

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
[73] (‘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.[74]

Similarly, in Ware v OAMPS Insurance Brokers
Ltd
,[75] 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.[76]

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.[77]

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.

(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...[78]

A similar approach was taken by Wilcox J in Tate v
Rafin
.[79] 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.[80]

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.[81]

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:

  • Ms Forbes had lodged a claim for compensation with Comcare alleging that she
    had suffered a depressive illness as a result of an altercation in the
    workplace. Comcare rejected that claim on the basis that the medical evidence
    did not show that she had suffered a compensable injury;
  • Ms Forbes sought review of Comcare’s refusal. Following
    reconsideration of Ms Forbes’ claim, Comcare affirmed its refusal of the
    claim;
  • Ms Forbes had also lodged a formal grievance in relation to the workplace
    incident that had allegedly led to her suffering the depressive illness. An
    internal investigation into her complaint concluded that her allegations were
    unsubstantiated; and
  • a further internal investigation into Ms Forbes’ complaints (carried
    out at Ms Forbes’ behest) also concluded that her allegations were
    unsubstantiated.

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.[82] 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.[83]

(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.

(i) Early
approaches

Sir Ronald Wilson suggested in Dopking v Department of
Defence
[84] 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.[85]

This approach was approved in IW v City of
Perth
[86] (‘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.[87]

A similar approach was adopted by Commissioner Innes in Purvis v The State
of NSW (Department of
Education)
.[88] 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.

(ii) The Purvis
decision

The approach of Commissioner Innes was rejected on review by both Emmett
J[89] and the Full Federal
Court.[90] 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.[91] (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.[92]

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.[93]

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.[94] (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.[95]

(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
,[96] 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.[97]

The same approach had been taken by the FMC in the earlier case of Randell
v Consolidated Bearing Company (SA) Pty
Ltd
.[98] 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.[99] 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
,[100] 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.[101] 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.[102] 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.[103]

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.[104] (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.[105]

The decision in Purvis was also applied in Fetherston v Peninsula
Health
[106] (‘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.[107]

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.[108]

In Trindall v NSW Commissioner of
Police
[109] (‘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.[110]

His Honour found that there was no discrimination in the initial informal
conditions imposed on the applicant pending further medical
assessment.[111] 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.[112]

In Ware v OAMPS Insurance Brokers
Ltd
,[113] 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.[114]

Driver FM held that the respondent had treated the applicant less favourably
by demoting and subsequently dismissing the
applicant.[115] 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).[116] 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.[117]

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.[118]

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.[119]

In Hollingdale v North Coast Area Health
Service
,[120] 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,[121] 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.[122]

In Moskalev v NSW Dept of
Housing
,[123] 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.[124]

In Huemer v NSW Dept of
Housing,
[125] 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.[126] 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.[127]

In Gordon v
Commonwealth,
[128] 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.[129]

It is worth noting that in a decision made under the
SDA,[130] 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’.[131] His Honour
took the view that the Federal Magistrate at first
instance[132] 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’.[133] His
Honour did not, however, discuss the decision in Purvis upon which the
Court at first instance had based its
analysis.[134]

In Razumic v Brite
Industries
,[135] 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.[136]

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.[137]

In Varas v Fairfield City Council (‘Varas’),[138] the applicant alleged that she was discriminated against on the basis of an
imputed disability (histrionic personality disorder) in relation to her
suspension from employment, a requirement that she undergo psychiatric and/or
psychological assessments and her termination from employment. Driver FM
accepted that the respondent had imputed a disability to the
applicant.[139] However, applying Purvis, Driver FM held that the employer’s decision to suspend and
then terminate the applicant’s employment was based the applicant’s
history of workplace incidents, complaints by co-workers and certain
recommendations by a psychologist who had interviewed staff in relation to those
complaints.[140]

In relation to the requirement that the applicant undergo further medical
assessments, Driver FM held that

although the Council’s directions for Ms Varas to attend Dr Korner were
because the Council had imputed to her a histrionic personality disorder (and
hypochondriasis) the requests were reasonable in the circumstances and did not
constitute a detriment for the purposes of the
DDA.[141]

(iv) The
applicant as his or her own comparator?

In Varas, the applicant alleged that the appropriate comparator was
herself, arguing that the required comparison should be between how she was
treated before and after she was imputed to have a mental illness. Driver FM
noted that such an approach was ‘novel’, although open under the
DDA:

Ms Varas asserts that she is her own comparator because her behaviour was
generally consistent throughout her long period of employment with the Council,
where the manner in which she was dealt with by the Council changed markedly
during and after 2005 [when she was allegedly imputed with a psychological
disability]. While the approach is novel, upon reflection, I think that it is an
approach which is open under the DDA. To put the proposition another way, the
proposed comparator is an actual employee (namely Ms Varas) who:

(a) exhibited the same behaviours;

(b) occupied the same position and performed the same duties;

(c) demonstrated the same work performance; and

(d) was not imputed with a disability (prior to
2006).[142]

In applying the above comparator in relation to the termination of the
applicant’s employment, the applicant argued that her workplace behaviour
had not significantly changed during the relevant period. Prior to being imputed
with a disability she was only disciplined for such behaviour whereas after
being imputed with a disability she was dismissed. Driver FM held that the
comparison put forward by the applicant was ‘too
simplistic’,[143] in that it
ignored the fact that the applicant’s work performance and behaviour had
both significantly declined during 2005 and had resulted in a
‘crisis’ which compelled the respondent to take decisive
action.[144] His Honour accepted
that, even if the applicant had not been imputed with a disability, it was

extremely likely that, in the light of the earlier counselling and warnings
given to Ms Varas, further disciplinary action would have culminated in her
dismissal in 2006.[145]

(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)
,[146] 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.[147]

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
,[148] 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.[149]

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.[150]

Callinan
J agreed with their Honours’ reasons with respect to the ‘comparator
issue’,[151] 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.[152] 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’.[153]

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’.[154] 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.[155]

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’.[156]

In Tyler v Kesser Torah
College
,[157] 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.[158]

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.[159] 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).

top | contents

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.

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

In Waters v Public Transport
Corporation
[160] (‘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
[161] (‘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.[162]

In Minns v New South
Wales
[163] (‘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
[164] (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’.[165]

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.[166]

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
[167] and that of Wilcox J in Tate v
Rafin
[168] to suggest that
‘the same facts can be put to both
tests’.[169]

Similarly, in Hollingdale v Northern Rivers Area Health
Service
,[170] 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.[171]

In Purvis v New South Wales (Department of Education and
Training)
[172] (‘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.[173] 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.[174]

(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’.[175]

However, applicants must be careful to ensure that ‘the actual
requirement or condition in each instance [is] formulated with some
precision’.[176] For
example, in Ferguson v Department of Further
Education
,[177] 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.[178] 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.[179]

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.[180]

In making those remarks his Honour referred to the comments of Tamberlin J in Catholic Education Office v
Clarke
[181] (‘CEO v
Clarke
’) concerning the importance of the proper characterisation of
the condition or requirement from the perspective of the person with the
disability.[182]

(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.[183]

The distinction between a condition of a service and the service itself was
raised at first instance in Clarke v Catholic Education
Office
[184] (‘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.[185]

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’.[186] 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
in spoken English or in any other spoken language, although the concept of
conventional classroom education may be accepted as necessarily implying the use
of a spoken language. At least in the circumstances of this case, it was not
inherent, however, that an interpreter would not be supplied, if needed. It is
accepted by the respondents that their schools are and should be open for the
reception and education of pupils with disabilities, including congenital
profound deafness. A person disabled by that condition may, at least for a
significant period of time, be unable, to a tolerable level, to receive or to
offer communication in or by means of spoken English or any other spoken
language, without the aid of an interpreter, at least in some areas of
discourse, knowledge or skill. Effectively to require such a person to receive
education without the aid of an interpreter, while it may or may not be
reasonable in the circumstances, is to place a requirement or condition upon
that person’s receipt of education or educational services that is not
necessarily inherent in classroom instruction. There is nothing inherent in
classroom instruction that makes the provision of silent sign interpretation for
a deaf pupil
impossible...[187]

His
Honour’s decision was upheld on
appeal.[188]

(ii)
Imposition of a requirement or condition

As well as formulating the relevant requirement or condition, an applicant
must also demonstrate that the requirement or condition was actually imposed in
some way. For example in Sluggett v Human Rights & Equal Opportunity
Commission
,[189] Drummond J
commented that ‘the concept of a “requirement or condition”
with which the aggrieved person is required to comply involves the notion of
compulsion or
obligation’.[190]

An applicant does not, however, need to necessarily show that the relevant
requirement or condition was imposed by way of a ‘positive’ act. In Waters,[191] for instance,
Mason CJ and Gaudron J noted that

compliance may be required even if the requirement or condition is not made
explicit: it is sufficient if a requirement or condition is implicit in the
conduct which is said to constitute
discrimination.[192]

Similarly, McHugh J in that case stated:

In the context of providing goods and services, a person should be regarded
as imposing a requirement or condition when that person intimates, expressly or
inferentially, that some stipulation or set of circumstances must be obeyed or
endured if those goods or services are to be acquired, used or
enjoyed.[193]

The inaccessibility of premises or facilities may give rise to the imposition
of a relevant requirement or condition for the purposes of establishing indirect
discrimination. For example, in Access For All Alliance (Hervey Bay) Inc v
Hervey Bay City Council
[194] (‘Access For All Alliance’) the applicant organisation
complained that certain council facilities (a community centre, concrete picnic
tables and public toilets) were inaccessible to members of the organisation who
had disabilities. In relation to the community centre Baumann FM found the
following requirements or conditions to have been imposed:

Persons are required to attend and enjoy entertainment held from the stage at
the Centre viewed from the outside grassed area without:

(a) an accessible path and platform; and

(b) an accessible ramp and path from the grassed area to the toilets situated
inside the Centre.[195]

In relation to the picnic tables, he identified the requirement or condition
as follows:

Persons seeking to enjoy the amenity of the... foreshore are required to use
tables which do not make provision for both wheelchair access to the tables and
are not designed to accommodate the wheelchairs at the
table.[196]

Finally, he identified the requirement or condition in relation to the public
toilets as:

Members of the applicant seeking to enjoy the amenity of the... foreshore are
required to use toilet facilities where wash basins are not concealed from the
public view.[197]

Baumann FM went on to uphold the complaint in relation to the public toilets,
but dismissed the complaint in relation to the community centre and picnic
tables (see 5.2.3(d) and (e) below).

(iii)
Requirement ‘imposed’ by employers

Where the alleged discriminatory requirement or condition arises from the
failure of an employee to follow the proper procedures of his or her employer,
the employer will not ordinarily be regarded as having imposed that requirement
or condition. The employer may, however, be held vicariously liable for the
conduct of the employee, although this involves a different test than that
required under s 6 (see further 5.4.1 below).

The above distinction arose for consideration in Vance v State Rail
Authority
.[198] The applicant,
a woman with a visual disability, complained of indirect disability
discrimination in the provision of services by the respondent. The applicant had
been unable to board a train because the guard had not allowed sufficient time
for her to do so, by closing the doors without warning while the applicant was
attempting to board.

The primary argument pursued under the DDA was that the respondent required
the applicant to comply with a requirement or condition defined as follows:

That in order to travel on the 11.50am train on 8 August 2002 operated by the
Respondent any intending passenger at Leumeah Station had to enter the train
doors promptly which may close without
warning.[199]

Raphael FM found that the guard on the train simply did not notice the
applicant attempting to board the train and closed the doors after a period of
between 10 and 15 seconds believing that no-one was getting
on.[200] It did not follow,
however, that the respondent Authority (the individual guard was not named as a
party) imposed a requirement or condition consistent with that conduct.

The evidence before the Court established that the respondent had detailed
procedures for guards to ensure that all passengers were on board prior to doors
of the train closing. In these circumstances, Raphael FM asked:

Can it be said that this requirement was imposed by virtue of what the
applicant alleged occurred on this day? In other words does the alleged action
of the guard constitute a requirement imposed by his employer. This could only
be the case if the employer was vicariously liable for the acts of the employee.
Such vicarious liability is provided for in the DDA under s 123.

His Honour considered that the respondent was not vicariously liable under s
123 for the conduct of its employee conduct on the basis that the respondent had
taken reasonable precautions and exercised due diligence to avoid the
employee’s conduct. Raphael FM concluded:

If the respondent has no liability under s 123(2), which I have found it does
not, and if all the evidence is that the respondent itself did not impose the
alleged requirement or condition, then I cannot see how there can be any
liability upon it. [201]

Raphael FM accordingly dismissed the application under the
DDA.[202]

(c) Comparison
with persons without the disability

Section 6(a) of the DDA
requires consideration of whether or not a substantially higher proportion of
persons without the disability of the aggrieved person comply or are able to
comply with the impugned requirement or condition. Accordingly, in any indirect
discrimination claim, an applicant must identify a pool of persons with whom the
aggrieved person can be compared.

In the context of sex discrimination cases brought under state legislation
and the former provisions of the
SDA,[203] a number of decisions
have considered the manner in which such comparison is to take place. In Banovic, a majority of the High Court held that it was necessary to first
identify a ‘base group’ or ‘pool’ which will then
‘enable the proportions of complying men and women to be
calculated’.[204] As Dawson
J expressed it:

a proportion must be a proportion of something, so that it is necessary to
determine the appropriate grouping or pool within which to calculate the
proportions which are to be
compared.[205]

Determining the appropriate ‘pool’ will vary according to the
nature and context of the
case.[206] Few cases have
considered this issue in the context of the DDA. One reason for this may be that
in the context of physical disability particularly, compliance or non-compliance
with a requirement or condition (such as the use of stairs) is a matter easily
accepted without the need for complex comparisons or statistical information.

In Daghlian v Australian Postal
Corporation
[207] (‘Daghlian’), for example, Conti J considered a requirement
or condition imposed by the respondent upon its employees that they not be
seated at the retail counter of one of its offices during work hours. His Honour
stated:

No issue arises in relation to ss6(a) or 6(c) of the DD Act, since there is
no evidence that for instance any Manly Post Office employee, other than the
applicant, was not able to comply with Australia Post’s so-called chair
policy.[208]

Raphael FM in Minns suggested that the ‘complex
comparisons’ proposed in cases such as Banovic may not be
appropriate or necessary in the context of disability discrimination cases. His
Honour noted that such an approach is ‘required in cases where it is
necessary to tease out actual discrimination which is not evident at first
blush’. He also noted that the cases ‘in support of the complex
comparisons are sex discrimination cases’, not disability discrimination
cases.[209]

His Honour accepted that ‘it is for the applicant to prove his case and
if that requires a complex, time consuming and undoubtedly expensive exercise in
comparisons then it must be
undertaken’.[210] However,
he referred to the comments of Emmett J (in obiter) at first instance in Purvis[211] and suggested
that his Honour ‘did not appear to be troubled by fitting the applicant
into a pool’.[212]

As discussed above,[213] the
applicant in Minns alleged that a State high school had indirectly
discriminated against him on the basis of his disability by requiring that he
comply with its disciplinary policy and subsequently suspending and expelling
him. He claimed that he was, by virtue of his disabilities (Asperger’s
syndrome, Attention Deficit Hyperactivity Disorder and Conduct Disorder), unable
to comply with the requirement or condition imposed in the form of this
disciplinary policy.

Having considered the authorities on the issue of the comparison required by
s 6(a), Raphael FM found:

There is no evidence in this case that any one else suffered [the
student]’s disabilities although it is known from the evidence of the
teachers and of the school records placed in evidence that the majority of
students in [the student]’s classes did comply with the policies. No
evidence was produced by the respondent that any members of [the
student]’s classes were unable to comply with the policies apart from [the
student].[214]

In Forest v Queensland
Health
[215] (‘Forest’) the applicant alleged that he was unable to comply
with a requirement that, in order to access certain medical premises he was not
allowed to be accompanied by one of his two dogs which he had trained to
alleviate his psychiatric disorder. The respondent argued that there was no
evidence of the proportion of persons with or without the applicant’s
disability who were unable to comply with the relevant condition. Collier J
rejected this argument, stating:

commonsense dictates that the majority of people in the community ... would
have no difficulty accessing the premises without an animal, and do not require
an assistance animal to be able to access the respondent’s premises.
Accordingly, for the purposes of s 6, I am prepared to hold that a substantially
higher proportion of persons without the applicant’s disability are able
to comply with the requirement or condition imposed by the respondent in this
case.[216]

On appeal,[217] the Full
Federal Court unanimously held that Collier J had erred. Black CJ summarised the
correct approach to s 6(a) as follows:

Section 6(a) therefore directs attention at the outset to two groups of
people: persons with the disability that affects the aggrieved person and
persons without that disability. Those with the disability are usually, in this
field of discourse, referred to as comprising the comparator group, and those in
the broader group are referred to as the base group. Discrimination occurs if
the requirement or condition impacts more severely upon persons with a
disability than it does upon persons without the disability. Since the
requirement or condition may impact upon both groups, the Act requires reference
to the proportionate impact and a consideration of whether "a substantially
higher proportion of persons without the disability" can or are able to
comply.[218]

In relation to the decision of Collier J at first instance, Black CJ
continued:

To my mind the learned judge was in error in the present case in failing to
define the comparator group so as to enable the comparison required by the
section to be made. Rather, it seems, her Honour attributed to an undefined
comparator group the alleged difficulties of access that were at the heart of
Mr Forest’s case. Whilst this attribution might well have been
sufficient where, for example, there was an obvious physical disability, there
was no warrant for doing so here. The proportional impact was by no means
self-evident. In the present case, whether the class of persons with
Mr Forest’s disability was large or small, and however broadly or
narrowly his disability might be defined (and this seems to have been a matter
of controversy at the trial), there was no evidence to establish the respective
proportions of persons who could comply with the requirement or
condition.[219]

Similarly, Spender and Emmett JJ observed:

However, there was no evidence before the primary judge to show what
proportion of people in the comparator group, who have Mr Forest’s
disability, are able to comply with the requirement or condition. Accordingly,
on the evidence before the primary judge, no finding could have been made that
the first prerequisite of s 6 was satisfied in relation to the conduct
complained of.[220]

In Penhall-Jones v State of
NSW
,[221] (‘Penhall-Jones’) Raphael FM applied the reasoning of the
Full Federal Court in Forest in rejecting a claim of indirect
discrimination. In Penhall-Jones, the applicant alleged that she had been
indirectly discriminated against contrary to s 6 of the DDA because her employer
required her to attend formal and stressful interviews which a substantially
higher proportion of people without her disability (which was adjustment
disorder) could comply. His Honour rejected Ms Penhall-Jones’ claim
because she had not led any evidence of how other persons with her disability
would have responded to such an interview, nor how persons without her
disability would have responded. In reaching this conclusion his Honour did,
however, note that he accepted that

that there are occasions where one can take the evidence of one complainant
as being typical of all members of the group. One person in a wheelchair who
complained that she was unable to climb the stairs to the Opera House might be
accepted as speaking for all persons in her position, but the very nature of the
complaints made by Ms Penhall-Jones cries out for more particularisation of the
group to which it is said she belongs. In the absence of such particularisation
Ms Penhall-Jones cannot proceed with a claim of indirect
discrimination.[222]

Justice Madgwick in Clarke followed the approach in Banovic. As
outlined above,[223] the case
concerned the complaint that a student, who was deaf, was indirectly
discriminated against by virtue of the ‘model of learning support’
put forward by the respondents as part of the terms and conditions upon which
the offer of admission to their school was made. His Honour stated:

To determine whether there has been discrimination it is necessary to
identify an ‘appropriate base group’ with which to compare the
individual claiming discrimination, and to decide whether a substantial
proportion of those individuals in the base group are able to comply with the
relevant requirement or condition: Australian Iron & Steel Pty Ltd v
Banovic
(1987) 168 CLR 165 at 178-79; 187. The applicant defines the
relevant base group for comparison with [the student] as either those students
attending year seven at the College in 2000 or all students enrolling in classes
at the College in 2000. It is submitted, on either definition, that a
substantial proportion of the base group is able to meet the requirement or
condition (to participate and receive classroom instruction without an
interpreter).

Counsel for the respondents concedes that, if the applicant’s
characterisation is accepted, then the requirements of s 6(a) of the DDA will be
met. However, the respondents submit that the applicant’s choice of a base
group is legally inappropriate, as students without [the student]’s
disability would not, as a matter of law, have been ‘provided with’,
that is: made subject to, the model of support...

The respondent’s contentions as to the appropriateness of the base
group really involve the re-assertion, in another guise, of its proposed
characterisation of the essential nature of the relevant service, which, as
indicated, I reject. [224]

On appeal, the Full Federal Court in CEO v Clarke upheld this
approach. The Court rejected the submission that it was not possible to make
such a comparison ‘simply because the alleged discriminator claims to have
provided a benefit or service not generally available to non-disabled
persons’. Once an aggrieved person established that they were required to
comply with a ‘requirement or condition’, the Court is required to
make the appropriate comparison against an appropriately defined base
group.[225]

In Trindall, Driver FM cited CEO v Clarke as authority for the
comparison required by s 6(a) being not with the applicant personally, but with
a class of persons with the applicant’s disability, which could be a
hypothetical class.[226] As
outlined above,[227] the applicant
in Trindall asserted that because of this condition, sickle cell trait,
unnecessary and unreasonable restrictions were placed upon his employment. His
Honour was satisfied that a higher proportion of persons without the sickle cell
trait would be able to comply with the requirement that they demonstrate their
fitness for service by obtaining a medical report on restrictions upon their
employment.[228]

In Rawcliffe v Northern Sydney Central Coast Area Health
Service,
[229] Smith FM
reviewed a number of authorities on the appropriate approach to undertaking the
comparative analysis required under s
6(a).[230] His Honour noted that
the authorities ‘allow considerable
flexibility’[231] on the
identification of the relevant groups for comparison, including the application
of ‘commonsense’[232] or ‘ordinary human experience of which I can take judicial
notice’,[233] rather than
necessarily requiring statistical or other such
evidence.[234]

(d) Reasonableness

Section
6(b) of the DDA requires that the relevant requirement or condition be
‘not reasonable having regard to the circumstances of the case’.
Unlike the SDA,[235] the DDA does
not provide guidance on the matters to be taken into account in deciding whether
the relevant requirement or condition is reasonable in the
circumstances.[236] Also unlike
the SDA,[237] the onus of
establishing unreasonableness under the DDA rests with the applicant.

It is clear that the issue of reasonableness must be considered having regard
to all relevant circumstances, including the circumstances of the
respondent.[238] In Waters, the Victorian Equal Opportunity Board at first instance had held that the
question of whether the respondent’s scratch ticketing system was
reasonable was to be assessed by having regard solely to the circumstances of
the complainants.[239] In
balancing the relevant considerations, the Board had therefore disregarded the
financial and economic considerations advanced by the respondent. On appeal,
Phillips J rejected this approach, holding that ‘reasonableness’ was
to be assessed by reference to all relevant factors, including the circumstances
of the respondent. The majority of the High Court agreed with that
approach.[240] For example, McHugh
J held:

In a legal instrument, subject to a contrary intention, the term
‘reasonable’ is taken to mean reasonable in all the circumstances of
the case. Nothing in the context of s 17(5)(c) indicates that the term should
not be given its ordinary
meaning.[241]

And further:

In reconsidering whether the imposition of the requirements or conditions was
reasonable, the Board must examine all the circumstances of the case. This
inquiry will necessarily include a consideration of evidence viewed from the
point of view of the appellants [the applicants at first instance] and of the
Corporation [the respondent at first instance]. [242]

Whilst the decision in Waters involved a provision in the Equal
Opportunity Act 1984
(Vic), the broad approach taken to the issue of
‘reasonableness’ has also been applied in relation to s 6(b) of the
DDA.[243]

A comprehensive summary of the relevant principles in relation to the
assessment of reasonableness in the context of s 6(b) was provided in CEO v
Clarke,
[244] as
follows:

(i) The person aggrieved bears the onus of establishing that the condition or
requirement was not reasonable in the circumstances: Commonwealth Bank of
Australia v Human Rights and Equal Opportunity Commission
(1997) 80 FCR 78,
at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the
authorities cited there.

(ii) The test of reasonableness is an objective one, which requires the Court
to weigh the nature and extent of the discriminatory effect, on the one hand,
against the reasons advanced in favour of the condition or requirement, on the
other: Secretary, Department of Foreign Affairs and Trade v Styles (1989)
23 FCR 251, at 263, per Bowen CJ and Gummow J; Waters v Public Transport
Corporation
, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J.
Since the test is objective, the subjective preferences of the aggrieved person
are not determinative, but may be relevant in assessing whether the requirement
or condition is unreasonable: Commonwealth v Human Rights and Equal
Opportunity Commission
(1995) 63 FCR 74, at 82-83, per Lockhart J.

(iii) The test of reasonableness is less demanding than one of necessity, but
more demanding than a test of convenience: Styles, at 263. It follows
that the question is not whether the decision to impose the requirement or
condition was correct, but whether it has been shown not to be objectively
reasonable having regard to the circumstances of the case: Australian Medical
Council v Wilson
(1996) 68 FCR 46, at 61-62, per Heerey J; Commonwealth
Bank v HREOC
, at 112-113, per Sackville J.

(iv) The Court must weigh all relevant factors. While these may differ
according to the circumstances of each case, they will usually include the
reasons advanced in favour of the requirement or condition, the nature and
effect of the requirement or condition, the financial burden on the alleged
discrimination [sic] of accommodating the needs of the aggrieved person and the
availability of alternative methods of achieving the alleged
discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that
there is a reasonable alternative that might accommodate the interests of the
aggrieved person does not of itself establish that a requirement or condition is
unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State
of Victoria v Schou
[2004] VSCA 71, at [26], per Phillips
JA.[245]

(i) Education
cases

The issue of ‘reasonableness’ has frequently arisen in the
educational context.[246] For
example, in Hurst and Devlin v Education Queensland,[247] the
applicants alleged that the respondent imposed a requirement or condition
that they receive their education in English (including in Signed
English[248]) without the
assistance of an Auslan[249] teacher or interpreter. In determining whether that requirement or condition was
‘reasonable’, Lander J followed the approach of Madgwick J in Clarke and stated that the ‘question of reasonableness will always
be considered in light of the objects of the
Act’.[250] His Honour held
that it was reasonable for Education Queensland not to have adopted a
bilingual-bicultural program[251] in relation to the education of deaf students prior to 30 May
2002,[252] stating:

I am satisfied on the evidence ... that Education Queensland has progressed
cautiously but appropriately, towards the introduction of a bilingual-bicultural
program and the use of Auslan as a method of communication for those
programs.

It must be accepted that an education system cannot change its method of
education without first inquiring into the benefits of the suggested changes and
the manner in which those changes might be implemented.

It must be first satisfied that there are benefits in the suggested changes.
It must be satisfied that it can implement those changes without disruption to
those whom it is delivering its service.

It was appropriate, in my opinion, for Education Queensland to take the time
that it did in considering the benefits which would be associated with
bilingual-bicultural program and the use of Auslan.

I accept the respondent’s argument that changes, as fundamental as
those proposed in the bilingual-bicultural program, should be evolutionary
rather than revolutionary. It is too dangerous to jettison a system of education
and adopt a different system without being first sure that the adopted system is
likely to offer increased benefits to the persons to whom the education is
directed.[253]

However, Lander J found that ‘Auslan will still be of assistance to
those who are profoundly deaf even if delivered on a one-on-one
basis’;[254] though the
Total Communication Policy adopted by the respondent did not allow for Auslan as
a method of communication.[255] Consequently, (without making any findings about the reasonableness of the Total
Communication Policy), his Honour held that it was unreasonable for the
respondent not to have assessed the applicants’ needs prior to 30 May 2002
to determine whether they should be instructed in English or in Auslan.
Furthermore, his Honour held that if such an assessment had been undertaken, it
would have established that ‘it would have been of benefit to both of [the
applicants] to have been instructed in Auslan rather than in
English’.[256]

The first applicant (Hurst) successfully appealed the decision of Lander J to
the Full Federal Court.[257] However, that appeal was only in relation to Lander J’s finding that
Hurst, unlike Devlin, was able to comply with the condition of being taught
without the assistance of Auslan (discussed at 5.2.3(e) below). The Court did not disturb or discuss
Lander J’s findings on the issue of reasonableness.

In Hinchliffe v University of
Sydney
[258] (‘Hinchliffe’), Driver FM held that, with the exception of
certain course material, the applicant could comply with the university’s
condition that she use the course materials provided to her. In relation to the
occasional material which was not accessible, his Honour held that the
availability of a disability services officer to deal with such occasional
problems in reformatting course materials was sufficient and adequate and,
accordingly, rendered the university’s requirement
reasonable.[259]

In Travers v New South
Wales
[260] (‘Travers’), Raphael FM considered a requirement or condition
that students in a particular class utilise the toilet in another building,
rather than a toilet outside the classroom. This was a requirement with which
the applicant, a student with a disability that caused incontinence, could not
comply.[261] Raphael FM found the
requirement or condition to be unreasonable, having considered the perspective
of the applicant, the school and other students.

In Minns, the applicant complained about the application of a
school’s disciplinary policy to him (see 5.2.2(b) above). Raphael FM held that the high school
disciplinary policy was reasonable in all of the circumstances. He found that
the classes would not have been able to function if a student could not be
removed for disruptive behaviour and other students would not be able to achieve
their potential if most of the teacher’s time was taken up handling that [262]dent.262

(ii)
Employment cases

The potentially broad scope of the considerations that are relevant to the
question of ‘reasonableness’ has also been confirmed in the
employment context. In Daghlian, the respondent’s ‘no
chair’ policy, which prohibited employees from using stools behind the
retail counter, was found to impose a ‘requirement or condition’
that the applicant not be seated at the retail counter during her work
hours.[263] The applicant had
physical disabilities which limited her ability to stand for long periods.

In finding that the requirement or condition was not reasonable, Conti J
considered a wide range of factors, including:

  • health and safety issues (it was claimed by the respondent that the presence
    of stools created a danger of tripping for other staff);
  • the needs of the applicant (identified in medical and ergonomic reports) to
    assist her to work satisfactorily and efficiently in the performance of her
    duties, notwithstanding her physical disabilities;
  • the applicant’s status as a competent and conscientious employee and a
    dutiful member of the counter staff;
  • the desire of the respondent to create a ‘new image’ for its
    post shops; and
  • the ability for the needs of the applicant to be accommodated through
    structural changes to the counter
    area.[264]

In Trindall (see 5.2.3(c) above), Driver FM accepted that the imposition of
certain requirements were reasonable in light of the applicant’s sickle
cell trait, including the imposition of ‘flexible and informal
restrictions’ and the requirement that the applicant provide a medical
report to justify the lifting of certain work restrictions. However, his Honour
held that it was unreasonable for the respondent to require a further medical opinion before it would lift the relevant
restrictions.[265]

(iii) Access
to premises

The reasonableness of implicit requirements or conditions associated with the
accessibility of public premises and facilities arose for consideration in Access for All Alliance (see 5.2.3(b) above). In that case, members of the applicant
organisation alleged that certain public premises were inaccessible to people
with disabilities. Bauman FM found that the conditions for access to the
community centre and picnic tables were reasonable in all the
circu[266]ances.266 However, his
Honour found that the requirement or condition relating to the public toilets,
namely that the wash basins were outside the toilet and not concealed from
public view, was not reasonable, on the basis that:

some persons with disabilities have personal hygiene difficulties and some
are required to undertake a careful toileting regime... which reasonably
requires use of wash basins out of public view and in
private.[267]

His Honour went on to find that justifications for the placement of the
basins outside the toilets advanced by the respondent were ‘offset by the
community expectation that persons with a disability should be entitled to
complete a toileting regime in
private’.[268] Suggested
alternatives to being able to use the wash basins as part of a toileting regime
(such as carrying ‘Wet Ones’, sponges, clean clothes and paper
towels) were rejected by his Honour as
‘inadequate’.[269]

Baumann FM also considered the relevance of the Building Code of Australia
(‘BCA’) and the Australian Standards. His Honour accepted the
submission of the Acting Disability Discrimination Commissioner, appearing as
amicus curiae, that ‘as standards developed by technical experts in
building, design and construction, the BCA and the Australian Standards are
relevant and persuasive in determining... whether or not a requirement or
condition is
“reasonable”’.[270] His Honour accepted that the Australian Standards and the BCA were ‘a
minimum requirement which may not be enough, depending on the context of the
case, to meet the legislative intent and objects of the
DDA’.[271] In relation to
the toilet facilities, Baumann FM found that the lack of any requirement under
the Australian Standards or the BCA to provide an internal wash basin did not
alter his finding as to
unreasonableness.[272]

(iv) Goods and
services

The issue of reasonableness in relation to goods and services (as well as
access to premises) arose in Forest.[273] The respondent
in that case argued that it was reasonable to prohibit assistance animals, other
than guide and hearing dogs and other animals approved in advance, from the
relevant medical premises (a hospital and a dental clinic) on the grounds of
health and safety and infection
control.[274] Collier J rejected
this argument, noting the beneficial objects of the DDA and the fact that s 9
does not distinguish between guide and hearing dogs and other types of
assistance animals. Her Honour further held that the respondent’s policy
on admission of animals was vague, lacking in objective criteria and effectively
gave complete discretion to the respondent to determine whether the relevant
animal was an assistance animal for the purposes of the
DDA.[275]

On appeal,[276] however, the
Full Federal Court disagreed. Spender and Emmett JJ noted that there was no
suggestion that the policy relating to admission of animals would be exercised
in a capricious or arbitrary
fashion.[277] Their Honours
concluded:

The fact that a judgment was required is not of itself unreasonable. There
was nothing unreasonable, in the circumstances of this case, in requiring the
approval of the management of the hospital or the health centre, as the case may
be, before a dog was permitted entry into the relevant
facility.[278]

Similarly, Black CJ observed in obiter that

it is not per se unreasonable for a health authority to administer
objective criteria to protect those to whom it has a duty of
care.[279]

(e) Inability
to comply with a requirement or condition

Section 6(c) requires
that the applicant ‘does not or is not able to comply’ with the
relevant requirement or conditions.

The courts have emphasised the need to take a broad and liberal approach to
the question of whether the complainant is able to comply with the relevant
condition.[280] It would now
appear to be relatively settled that the relevant question is not whether the
complainant can technically or physically comply with the relevant requirement
or condition, but whether he or she would suffer ‘serious
disadvantage’ in complying with the requirement or
condition.[281]

(i) Serious
disadvantage

In Clarke, Madgwick J held that ‘compliance’ with a
requirement or condition ‘must not be at the cost of being thereby put in
any substantial disadvantage in relation to the comparable base
group’.[282] In concluding
that a deaf student would not have been able to ‘comply’ with a
requirement or condition that he participate in classroom instruction without an
Auslan interpreter, his Honour stated:

In my opinion, it is not realistic to say that [the student] could have
complied with the model. In purportedly doing so, he would have faced serious
disadvantages
that his hearing classmates would not. These include:
contemporaneous incomprehension of the teacher’s words; substantially
impaired ability to grasp the context of, or to appreciate the ambience within
which, the teacher’s remarks are made; learning in a written language
without the additional richness which, for hearers, spoken and
‘body’ language provides and which, for the deaf, Auslan (and for
all I know, other sign languages) can provide, and the likely frustration of
knowing, from his past experience in primary school, that there is a better and
easier way of understanding the lesson, which is not being used. In substance,
[the student] could not meaningfully ‘participate’ in classroom
instruction without Auslan interpreting support. He would have
‘received’ confusion and frustration along with some handwritten
notes. That is not meaningfully to receive classroom
education.[283] (emphasis
added)

The ‘serious disadvantage’ approach was also adopted by the Full
Federal Court in Hurst v State of Queensland (‘Hurst’).[284] In that case, the respondent was found to have imposed a requirement or
condition upon the applicants that they receive their education in English
without the assistance of an Auslan teacher or interpreter. At first
instance,[285] Lander J stated
that whether the applicant had complied, or could comply, with the requirement
or condition was a ‘matter of
fact’.[286] In relation to
the application by Devlin, his Honour held that the evidence that he had fallen
behind his hearing peers academically established that he could not comply with
the requirement or condition imposed on him by the respondent, even though the
respondent’s conduct was not the only reason he had fallen
behind.[287]

However, Lander J held that Hurst had not established that she could not
comply with the requirement or condition that she be instructed in English. This
was because there was no evidence that she had fallen behind her hearing peers
academically as a result of receiving her education in
English.[288] While his Honour
accepted that that may be as a result of the ‘attention which she receives
from her mother and the instruction which she no doubt receives from her mother
in Auslan’,[289] he stated
that it was ‘a matter on which the experts have not
discriminated’.[290]

The finding of Lander J that Hurst was able to comply with the
respondent’s condition as she could ‘cope’ without the
assistance of Auslan was reversed on
appeal.[291] The Full Federal
Court unanimously held that Lander J had incorrectly focused on the comparison
between the academic performance of Hurst and that of her
peers.[292] Rather, the Court held
that the critical issue was:

whether, by reason of the requirement or condition that she be taught in
English without Auslan assistance, she suffered serious
disadvantage.[293]

The Full Federal Court further held that a child may be seriously
disadvantaged if ‘deprived of the opportunity to reach his or her full
potential and, perhaps, to
excel’.[294] In summary, the
Court held:

In our view, it is sufficient to satisfy that component of s 6(c) (inability
to comply) that a disabled person will suffer serious disadvantage in complying
with a requirement or condition of the relevant kind, irrespective of whether
that person can ‘cope’ with the requirement or condition. A disabled
person’s inability to achieve his or her full potential, in educational
terms, can amount to serious disadvantage. In Tiahna’s case, the evidence
established that it had done
so.[295]

By
contrast to the above decisions, an arguably narrower approach was taken in Hinchliffe (see 5.2.3(d) above).
Driver FM held that the applicant and those assisting her were able to reformat
the university course materials and, accordingly, she was able to comply with
the university’s condition that she use the course materials provided to
her. Whilst there was a limited amount of material which could not be
reformatted in an accessible format, which imposed a condition with which the
applicant could not comply, his Honour had accepted that this condition was
‘reasonable’ in all of the circumstances of [296] case.296 Accordingly, the
applicant’s case failed.

(ii)
Practicality and dignity

In considering whether a complainant is able to comply with the relevant
requirement or condition, it is also relevant to consider whether he or she can
comply reasonably, practically and with dignity. In Access for All
Alliance
, Baumann FM cited with apparent approval a submission by the Acting
Disability Discrimination Commissioner, appearing in the matter as amicus
curiae, that:

in determining whether or not an applicant can ‘comply’ with a
requirement or condition for the purposes of s 6(c), the Court should look
beyond ‘technical’ compliance to consider matters of practicality
and reasonableness.[297]

His Honour found that the relevant condition was that members of the
applicant use toilet facilities where wash basins were not concealed from view.
He accepted that this condition could not be complied with by people with
disabilities who were ‘required to undertake a careful toileting regime...
which reasonably requires use of wash basins out of public view and in
private’.[298]

Similarly, in Travers (see 5.2.3(d) above), the applicant was a 12-year-old girl
with spina bifida and resultant bowel and bladder incontinence. She claimed that
she was denied access to an accessible toilet which was near her classroom. It
was argued by the applicant that requiring her to use toilets further away from
her classroom imposed a condition with which she was unable to comply because
she was unable to reach the toilet in time to avoid a toileting accident.[299] In considering an
application for summary dismissal, Lehane J held that while it was not literally impossible for the applicant to comply with the condition, the
consequences would have been seriously embarrassing and distressing. In those
circumstances, the applicant was not able to comply with the requirement or
condition in the
relevant sense.[300]

top | contents

5.2.4 Other
grounds: Aids, assistants and assistance animals

In addition to
prohibiting direct and indirect discrimination, the DDA contains separate
provisions dealing with less favourable treatment because of the fact that the
aggrieved person:

  • is accompanied by, or possesses, a palliative or therapeutic device or an
    auxiliary aid (s 7);
  • is accompanied by an interpreter, a reader, an assistant or a carer (s 8);
    or
  • is accompanied by or possesses a guide dog, hearing dog or ‘any other
    animal trained to assist the aggrieved person to alleviate the effect of the
    disability’ (s 9).

(a) Interaction
between ss 5 - 9

The interaction between ss 5 and 6 on the one
hand, and ss 7, 8 and 9 on the other, is potentially unclear. Whilst the former
sections define direct and indirect discrimination with general application to
the DDA, the latter sections are tailored to more specific modes of
discrimination.

In Forest v Queensland
Health,
[301] the applicant had
personally trained two dogs, a border collie/kelpie cross-breed and a boxer, to
assist him in alleviating his psychiatric condition. He claimed discrimination
contrary to s 23 (access to premises) and s 24 (provision of goods of services)
when he was refused permission to attend medical and dental premises operated by
the respondent whilst accompanied by one or other of his dogs.

At first instance, after outlining the overall structure of ss 5 to 9 of the
DDA, Collier J observed:

It is difficult to discern the intention of Parliament from this structure,
in view of the fact that it would be expected that discrimination against a
person with a disability could generally be considered as either
‘direct’ or ‘indirect’ depending on the circumstances of
the case.[302]

Her Honour went on to conclude that ss 5 to 9 operated independently and
‘it may be possible for a person to have been the subject of
discrimination under two or more of these
sections’.[303] Her Honour
further held that Mr Forest had been discriminated against contrary to ss 23 and
24, based on the respondent’s breach of both s 6 and s 9.

On appeal,[304] the Full
Federal Court unanimously overturned the decision of Collier J. However, the
Court was divided as to whether a breach of s 9 was sufficient to constitute
discrimination, or whether the applicant must also prove that the alleged
treatment was on the ground of his or her disability. Spender and Emmett JJ
observed that ss 23 and 24 provide that it is unlawful to ‘discriminate
against another person on the ground of the other person’s
disability’. In their Honour’s opinion, this required an applicant
to establish both that they had been discriminated against and that such
discrimination was ‘on the ground’ of their disability. Their
Honours held that ss 7 to 9 were concerned only with defining certain
circumstances of discrimination, but an applicant must still establish that such
discrimination was on the ground of their disability:

That is to say, ss 7, 8 and 9 are concerned only with defining what
constitutes discriminating by one person against another. None of them
speaks of the ground on which discrimination takes place. In contrast,
both s 5 and s 6 define, for the purposes of the Act, when one person
discriminates against another person on the ground of a disability of the
second person.

Accordingly, before there can be a finding of unlawful conduct under s 23 or
s 24, by reason of one person discriminating against another within ss 7, 8 or
9, it is also necessary to make a finding as to the ground on which the
discrimination occurs. Thus, for example, even if there is discrimination within
s 9, because a discriminator treats an aggrieved person less favourably because
of the fact that the aggrieved person possesses or is accompanied by a relevant
animal, that discrimination will not be unlawful unless it is established that
the discrimination is on the ground of the aggrieved person’s
disability. That is of critical significance in the present
case.[305] (emphasis in
original)

By contrast, whilst agreeing with the majority in allowing the
appeal, Black CJ disagreed with their approach to s 9 as being contrary to the
broader objects of the DDA.[306] His Honour agreed with the approach of Collier J at first instance that it was
sufficient to find a breach of s 9 in assessing the application of ss 23 and 24,
without the additional need to consider whether the discrimination was also
‘on the ground’ of the person’s
disability.[307] His Honour
concluded that ‘s 9 discrimination is a deemed instance of discrimination
on the ground of
disability’.[308] His Honour
added that the same would also be true of ss 7 and
8.[309]

(b) Assistance
animals

Section 9 of the DDA provides that a person will be
taken to have discriminated against an aggrieved person with a disability, if
the aggrieved person is treated less favourably because he or she is accompanied
by a guide dog,[310] hearing
assistance dog[311] or any other
animal ‘trained to assist the aggrieved person to alleviate the effect of
the disability’[312] or
‘because of any matter related to that
fact’.[313]

(i) Guide and
hearing dogs

Early cases decided by HREOC in relation to s 9 involved persons with visual
or hearing disabilities and their officially trained guide or hearing dogs. For
example, in Jennings v
Lee
,[314] the respondent was
found to have discriminated against the applicant, who has a visual impairment,
under s 9 of the DDA by refusing to permit her to be accompanied by her guide
dog when she ate in his restaurant.

Similar findings of unlawful discrimination were made in the context of the
refusal to provide accommodation in a caravan park to an applicant with a
hearing impairment because he was accompanied by his hearing
dog[315] and the refusal to allow
an applicant with a visual impairment to enter a store because she was
accompanied by her guide
dog.[316]

(ii) Other
types of assistance animals

Subsequent decisions have considered the more contentious issue of how s 9
applies in relation to ‘assistance
animals’[317] that are
neither guide dogs nor hearing assistance dogs. For example, in Sheehan v Tin
Can Bay Country Club
[318] (‘Sheehan’), the respondent club was found to have
discriminated unlawfully against the applicant, who suffered from an anxiety
disorder, when it refused to permit the applicant’s unleashed dog on the
premises. Raphael FM gave s 9 a wide application, finding:

The symptoms of Mr Sheehan’s disability include a concern about meeting
people and a concern about the way in which people will react to him. He
therefore sought, in approximately 1997, to relieve these symptoms by training a
dog to be an animal assistant. He thought that utilising the dog to break the
ice between himself and people he would meet for the first time would enable him
to overcome the concerns which he felt. The use of the dog in this manner would
qualify the dog to be an ‘assistance dog’ within [s 9(1)(f)]:

...

Mr Sheehan trained the dog Bonnie himself and he described to the Court a
number of ways in which the dog assisted him, both as I have previously
described and also in other
matters.[319]

The meaning of ‘assistance animal’ arose again in Forest.[320] In considering
whether the applicant’s dogs met the description of ‘assistance
animals’, Collier J held that the word ‘trained’ in s 9(1)(f)
should be given its ordinary meaning:

In my view s 9(1)(f) contemplates an animal which has been
‘trained’ in the sense of having been disciplined and instructed to
perform specified actions, not by any particular person or organisation, nor to
any standard of accreditation by any
organisation.[321]

Her Honour also held that ‘there is no pre-requisite as to the type of
animals that can be assistance animals for the purposes of s
9(1)(f)’.[322]

The decision of Collier J was overturned on
appeal.[323] However, her
Honour’s finding that Mr Forest’s dogs were ‘assistance
animals’ was not disturbed. Black CJ held that this was a finding that was
open to her Honour on the
evidence.[324] By contrast,
Spender and Emmett JJ, having decided the case on other grounds, concluded that
it was unnecessary to consider this
issue.[325] Their Honours did
observe, however, that:

The question is not whether the dogs do in fact assist Mr Forest to alleviate
the effects of a disability but whether they were trained with that purpose
or object in mind
.[326] (emphasis added)

Nevertheless, the approach taken by the Full Court in allowing the appeal
would appear to leave little room for s 9(1)(f) to operate. As discussed
above,[327] Spender and Emmett JJ
held that it was not sufficient for an applicant to establish a breach of s 9 to
demonstrate unlawful discrimination within a protected area of public life, such
as access to premises or the provision of goods or services. Rather, an
applicant must also establish that the relevant treatment was ‘on the
ground of’ their
disability.[328] This would appear
to absorb instances of s 9 discrimination within the broader definition of
direct discrimination under s 5.

On the question of whether there had been a breach of s 9, Spender and Emmett
JJ accepted that this may have been the case, although held that this was
insufficient to establish unlawful discrimination:

While it may be that Queensland Health discriminated against Mr Forest within
the meaning of section 9(1), because it treated him less favourably because of
the fact that he was accompanied by his dogs, it did not do so on the ground
of
his psychiatric disability. The ground on which Queensland Health
discriminated against Mr Forest, within the meaning of s 9(1), is that his dogs
were ill-behaved and ill-controlled and there was inadequate evidence of proper
assistance dog training. Thus Queensland Health did not discriminate against Mr
Forest on the ground of his disability, even though it may have discriminated
against Mr Forest within s9 of the
Act.[329]

Their Honours added that

there are some places where access in the company of a dog or other animal is
simply inappropriate. There are also places where a dog should be permitted only
if it behaves appropriately for that
place.[330]

Black CJ disagreed with majority’s approach to the construction of s
9,[331] although agreed with their
result in allowing the appeal. In considering the question of whether s 9 had
been breached, Black CJ held that Collier J had erred in her application of s 9.
Applying Purvis v New South Wales (Department of
Education)
[332] his
Honour held that the court must ask why the applicant was treated as
alleged – was it because of being accompanied by an assistance animal or
some other reason?[333] His Honour
reasoned that it was not inconsistent with s 9, or the beneficial objects of the
DDA generally, that a person could be lawfully refused admission to premises
because they were accompanied by a dangerous animal. In such circumstances, the
basis for the refusal would not necessarily lie in the person being accompanied
by the animal per se, but because of a desire to avoid
harm.[334] His Honour
concluded:

The object of eliminating discrimination on the ground of disability and the
further object of ensuring, as far as practicable, that persons with
disabilities have the same rights to equality before the law as the rest of the
community, are not advanced by a construction of such width as, in effect, to
allow any animal into any public premises under any circumstances. Such extremes
may have nothing to do with discrimination and indeed could frustrate the
objects of the Act by impeding the increasing acceptance of the important
functions not only of guide dogs but of other appropriately trained assistance
animals.[335]

Unlike the majority, which made final orders disposing of the matter, Black
CJ would have directed that the matter be remitted for re-hearing, to enable the
court to consider the true basis of Queensland Health’s decision to refuse
Mr Forest and his dogs.[336]

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5.2.5 Disability
standards

The DDA provides that the Minister may formulate
‘disability standards’ in relation to:

  • the employment of persons with a
    disability;[337]
  • the education of persons with a
    disability;[338]
  • the accommodation of persons with a
    disability;[339]
  • the provision of public transportation services and facilities to a person
    with a disability;[340]
  • the administration of Commonwealth laws and programs in respect of persons
    with a disability;[341] and
  • the access to or use of premises by persons with a
    disability.[342]

It is
unlawful for a person to contravene a disability
standard.[343] The exemption
provisions (Part II Division 5) generally do not apply in relation to a
disability standard.[344] However,
if a person acts in accordance with a disability standard the unlawful
discrimination provisions in Part II do not apply to the person’s
act.[345]

(a) Transport
Standards

The Disability Standards for Accessible Public
Transport 2002
(‘the Transport Standards’) were formulated under
s 31 of the DDA and came into effect on 23 October 2002. The Transport Standards
apply to operators and providers of public transport services, and set out
requirements for accessibility of the premises, conveyances and infrastructure
that are used to provide those
services.[346] The application and
operation of the Transport Standards is yet to be squarely considered by the
courts at the date of publication.

However, brief mention of the Transport Standards was made in Access For
All Alliance (Hervey Bay) Inc v Hervey Bay City
Council
.[347] The applicant, a
disability rights organisation, alleged that the respondent council had built or
substantially upgraded a number of bus stops since the commencement of the
Transport Standards which did not comply with those standards.

The application was summarily dismissed by Collier J on the basis that the
applicant, as an incorporated association, was not itself
‘aggrieved’ by the alleged non-compliance with the Transport
Standards and therefore lacked standing to commence the
action.[348] However, her Honour
did accept that individual members of the applicant organisation may have had
standing to bring proceedings in relation to the same
facts.[349]

The respondent Council had also sought to have the matter summarily dismissed
on a separate ground relating to the ‘equivalent access’ provisions
under the Transport
Standards.[350] The Council
claimed that no individual instance of discrimination had been alleged and
therefore the applicant had not proven that the respondent had failed to provide
equivalent access to an individual who could not negotiate the relevant bus
stops by reason of the Council’s failure to comply with the Transport
Standards. Although unnecessary to decide this issue, Collier J made the
following obiter comments:

I do not accept the submission of the respondent that the applicant’s
claim should be dismissed unless the applicant proves that the respondent has
failed to provide equivalent access to an individual, who cannot negotiate the
public transport infrastructure by reason of a failure of the respondent to
comply with the Standards. In my view, as submitted by the applicant, the
provisions in the Disability Standards as to equivalent access go to conduct
which may be raised in defence of alleged failure of the respondent to comply
with the Disability
Standards.[351]

However, her Honour did not elaborate further on the application of the
Transport Standards more generally.

(b) Education
Standards

The Disability Standards for Education 2005 (‘Education Standards’), also formulated under s 31 of the DDA, came
into effect on 18 August 2005. The purpose of the Education Standards is to
‘clarify, and make more explicit, the obligations of education and
training service providers under the DDA and the rights of people with
disabilities in relation education and
training’.[352]

The Education Standards apply to ‘education providers’, defined
to include:[353]

  • educational institutions, meaning a school, college, university or other
    institution at which education or training is provided;
  • persons or bodies administering an educational institution; and
  • organisations whose purpose is to develop or accredit curricula or training
    courses used by other education providers.

The above categories
include Commonwealth, State and Territory governments and agencies, as well as
private organisations and
individuals.[354]

The Education Standards cover the following areas relevant to education:

  • enrolment;
  • participation;
  • curriculum development, accreditation and delivery;
  • student support services; and
  • elimination of harassment and victimisation.

Perhaps the most
significant feature of the Education Standards is the introduction of a positive
obligation on education providers to make ‘reasonable adjustments’
to accommodate the needs of students with
disabilities.[355] The Standards
also impose an obligation on education providers to consult with affected
students or their associates in relation to such
adjustments.[356]

In relation to harassment and victimisation, for example, part 8 of the
Education Standards imposes a positive obligation on education providers to

develop and implement strategies and programs to prevent harassment or
victimisation of a student with a disability, or a student who has an associate
with a disability, in relation to the
disability.[357]

Education providers must also take ‘reasonable steps’ to ensure
that its staff and students are informed about the prohibition against
harassment and victimisation, as well as the appropriate action to be taken if
it occurs and the complaint mechanisms
available.[358] The Standards also
provide guidance on the types of measures that education providers should
implement in order to fulfil their obligations in relation to victimisation and
harassment.[359]

A number of exceptions to the Standards are provided in Part 10. Most
importantly, education providers are not required to comply with the Standards
to the extent that compliance would impose ‘unjustifiable
hardship’.[360]

At the time of publication, the application of the Education Standards had
not yet been considered by the courts.

(c) Proposed
access to premises standards

The Australian Building Codes
Board, along with disability advocates, design professionals, and members of
Government and the property industry have been preparing a new disability
standard in relation to access to premises. This has also involved the Board
revising the relevant parts of the Building Code of Australia (BCA) and drafting
an Access Code for Buildings which seeks to ensure minimum compliance with the
DDA in relation to access to
buildings.[361] It is intended
that the relevant parts of the BCA and the Access Code will be consistent and
the Access Code will then form the basis of a new disability standard, pursuant
to s 31(1)(f) of the DDA, in relation to access to premises.

The rationale behind developing the disability standard on access to premises
in tandem with amendments to the BCA was described by the Commissioner
responsible for Disability Discrimination as follows:

This will mean that when developers and designers create buildings that
comply with the BCA they will also be complying with the Disability Standard and
will be protected from DDA
complaints.[362]

However, as at the date of publication, the proposed disability standard on
access to premises had not yet been
enacted.[363]

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5.2.6 Harassment

Division
3 of Part 2 of the DDA contains separate provisions that make it unlawful to
‘harass’ a person with a disability (or an associate of a person
with a disability) in relation to that disability. For example, s 35(1)
provides:

(1) It is unlawful for a person to harass another person who:

(a) is an employee of that person; and

(b) has a disability;

in relation to the disability.

The harassment provisions are limited to the following areas of public
life:

  • employment;[364]
  • education;[365] and
  • the provision of goods, services and
    facilities.[366]

‘Harass’
is not defined in the DDA. In McCormack v
Commonwealth,
[367] (‘McCormack’) Mowbray FM adopted the following definition
from the Macquarie Dictionary:

Harass 1. to trouble by repeated attacks, incursions, etc., as
in war or hostilities; harry; raid. 2. to disturb persistently; torment, as with
troubles, cares, etc.[368]

In Penhall-Jones v State of
NSW
,[369] Raphael FM concluded
that the little authority that there is on what constitutes
‘harassment’ under s 35(1) identifies it as something which is
repetitious or occurs on more than one
occasion.[370]

In relation to the meaning of the phrase ‘in relation to the
disability’, his Honour applied the following statement of McHugh J in O’Grady v The Northern Queensland Company Ltd:

The prepositional phrase ‘in relation to’ is indefinite. But,
subject to any contrary indication derived from its context or drafting history,
it requires no more than a relationship, whether direct or indirect, between two
subject matters.[371]

On the basis of these authorities, Simpson FM concluded that for a finding of
harassment to be made out, an applicant must not only prove on the balance of
probabilities that disparaging or other comments have been made about him/her,
but also that the disparaging comments were made in relation to the
applicant’s disability and to the applicant
personally.[372]

In King v
Gosewisch
[373] the
applicants alleged that they were subjected to disability harassment by several
attendees of a public meeting when they advocated for disability rights. The
alleged harassment was also said to be linked to the delay in the starting time
of the meeting due to the need to transfer the meeting to the ground floor to
accommodate the applicants who used wheelchairs.

The court accepted that the applicants were probably subjected to hostile
remarks as alleged.[374] However,
the court did not accept that the remarks were based on the applicants’
disability or even the fact that the meeting had been transferred to the ground
floor to accommodate them.[375] Rather, the harassing comments were held to have been motivated by other
factors, such as the behaviour of the applicants during the meeting and a
perception that the meeting was intended for local residents and the applicants
had dominated the meeting for their own
purposes.[376] For, example, the
court observed:

Rightly or wrongly, some of the members and the public regarded the behaviour
and intervention in the meeting of the Applicants as disruptive. Political type
public gatherings often engender robust sharing of views and comments with
asides that can be, either directly or indirectly, focused on personalities
rather than issues.

As the Applicants during the meeting continued to advocate for an exchange of
views with candidates about their case of interest, namely access issues for the
disabled across the city, some of the public became heated and disrespectful.
However, those remarks were, in my view, in relation to the perceived behaviour
of the Applicants in the meeting, not ‘in relation to the
disability.’ In those circumstances, the remarks do not, in my view,
constitute harassment within the meaning of ss 39 and
40.[377]

The relationship between harassment and discrimination is yet to have
received much judicial consideration. There is certainly considerable overlap
between these two concepts, given that harassment of a person with a disability
in relation to that disability will typically also constitute less favourable
treatment because of that disability for the purposes of establishing direct
discrimination. Indeed, the sub-heading of Division 3 of Part 2 is entitled
‘Discrimination involving harassment’, which suggests that
harassment is to be regarded as a discrete kind of discrimination, albeit with
separate statutory force.

However, there may also be circumstances in which the discrimination and
harassment provisions operate independently. In McDonald v Hospital
Superannuation Board
,[378] for
example, Commissioner Johnston accepted that one employee had made disparaging
comments to another employee in relation to the applicant’s disability.
The Commissioner held that the relevant comments could not amount to harassment,
as they had not been made to the applicant. However, he held that that the
comments amounted to discrimination, on the basis that:

To address a derogatory comment to a fellow worker about aspects of another
worker by reference to a disability of the latter, and thereby to lower the
dignity and regard of other persons toward that worker is to treat the latter
differentially.[379]

Commissioner Johnston went on to accept that certain other disparaging
comments, which had been made in the presence of the applicant, did amount to
harassment.[380]

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5.3 Areas of
Discrimination

5.3.1 Employment
(s 15)

Section 15 of the DDA deals with discrimination in
employment, as follows:

15 Discrimination
in employment

(1) It is unlawful for an employer or a person acting or purporting to act on
behalf of an employer to discriminate against a person on the ground of the
other person’s disability or a disability of any of that other
person’s associates:

(a) in the arrangements made for the purpose of determining who should be
offered employment; or

(b) in determining who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

(2) It is unlawful for an employer or a person acting or purporting to act on
behalf of an employer to discriminate against an employee on the ground of the
employee’s disability or a disability of any of that employee’s
associates:

(a) in the terms or conditions of employment that the employer affords the
employee; or

(b) by denying the employee access, or limiting the employee’s access,
to opportunities for promotion, transfer or training, or to any other benefits
associated with employment; or

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment.

(3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to
discriminate against another person, on the ground of the other person’s
disability, in connection with employment to perform domestic duties on the
premises on which the first-mentioned person resides.

(4) Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an
employer against a person on the ground of the person’s disability, if
taking into account the person’s past training, qualifications and
experience relevant to the particular employment and, if the person is already
employed by the employer, the person’s performance as an employee, and all
other relevant factors that it is reasonable to take into account, the person
because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular
employment; or

(b) would, in order to carry out those requirements, require services or
facilities that are not required by persons without the disability and the
provision of which would impose an unjustifiable hardship on the employer.

This section considers the following issues that have arisen under s 15 of
the DDA:

(a) the meaning of ‘employment’;

(b) the meaning of ‘arrangements made for the purposes of determining
who should be offered employment’;

(c) the meaning of ‘benefits associated with employment’ and
‘any other detriment’; and

(d) the ‘inherent requirements’ defence.

The issue of ‘unjustifiable hardship’, which arises in s 15(4)(b)
and elsewhere in the DDA, is considered separately below: see 5.5.1.

(a) Meaning
of ‘employment’

The issue of whether a priest was in
the ‘employment’ of a church for the purposes of s 15 was considered
in Ryan v Presbytery of Wide Bay Sunshine
Coast
.[381] The applicant had
been forced to resign from a position as Minister with the respondent Church.
The nature of that ‘resignation’ was a matter of dispute and
followed the respondent ‘severing the pastoral tie’ with, or
‘demissioning’, the applicant.

Baumann FM considered an application to allow an extension of time for the
commencement of proceedings pursuant to s 46PO(2) of the HREOC Act. In
dismissing the application, Baumann FM considered the prospects of success of
the application, including whether or not the applicant and respondent were in a
relationship of employer and employee for the purposes of s 15 of the DDA.

Based on common law authorities, Baumann FM found that the applicant would
have ‘some difficulty in establishing, as a matter of law, that he was an
employee of the Church at the time’. This was because the relationship
with the church was ‘a religious one, based on consensual compact to which
the parties were bound by their shared faith, based on spiritual and religious
ideas, and not based on common law
contract’.[382]

(b) ‘Arrangements
made for the purposes of determining who should be offered
employment’

Section 15(1)(a) prohibits discrimination
‘in the arrangements made for the purposes of determining who should be
offered employment’. Importantly, the ‘inherent requirements’
defence under s 15(4) (see 5.3.1(d) below) is not available in the case of a breach of s 15(1)(a).

In Y v Human Rights & Equal Opportunity
Commission
,[383] the applicant
complained of disability discrimination after having been unsuccessful in his
application for a job. The applicant sought to characterise the discrimination
as being discrimination ‘in the arrangements made for the purpose of
determining who should be offered employment’, contrary to s 15(1)(a) of
the DDA. Finkelstein J rejected the applicant’s argument, finding that the
section:

seeks to outlaw the established ground under which persons with a disability
will not even be considered for employment. It is not apt to cover the situation
where a particular individual is refused employment, or an interview for
employment, because of that person’s particular
disability.[384]

A
similar issue arose in Vickers v The Ambulance Service of
NSW
[385] (‘Vickers’). The applicant applied for a position as
an ambulance officer and passed the initial stages of the respondent’s job
application process, including interview. He was then referred for an
independent medical assessment. During that assessment, the applicant disclosed
that he suffered from Type 1, insulin-dependent diabetes. Despite the applicant
providing a letter supporting his application from his treating endocrinologist,
his application was refused. The applicant claimed that the respondent had
discriminated against him pursuant to s 15(1)(a) ‘in the arrangements made
for determining who should be offered employment’ on the basis that it had
effectively applied a blanket policy of excluding all persons with diabetes
without taking into account their individual
characteristics.[386]

Raphael FM found that there was insufficient evidence to infer that either
the respondent or the organisation that had carried out the medical assessment
had applied a blanket policy of all excluding applicants with
diabetes.[387] His Honour also
held that the respondent’s process of selection, including the medical
assessment stage, was the same for the applicant as for
others.[388] Accordingly, he
rejected the applicant’s claim under s 15(1)(a).

However, his Honour ultimately found in favour of the applicant on the basis
that the respondent had breached s 15(1)(b) (discrimination in determining
who should be offered employment) and had failed to make out any of the defences
under s 15(4) (see further 5.3.1(d) below).

(c) ‘Benefits
associated with employment’ and ‘any other
detriment’

The meaning of the expressions ‘benefits
associated with employment’ and ‘any other detriment’ was
considered in McBride v Victoria (No
1)
.[389] The applicant, a
prison officer, had complained to a supervisor about rostering for duties which
were inconsistent with her disabilities (which had resulted from work-related
injuries). The supervisor was found to have responded: ‘What the fuck can
you do then?’[390]

McInnis FM accepted an argument by the applicant that this behaviour denied
the applicant ‘quiet enjoyment’ of her employment which was a
benefit associated with employment, in breach of s 15(2)(b) of the
DDA.[391] He further held that the
conduct was sufficient to constitute ‘any other detriment’ under s
15(2)(d).

In Ware v OAMPS Insurance Brokers
Ltd
,[392] the applicant, who
suffered from Attention Deficit Disorder and depression, claimed that the
respondent had directly discriminated against him in breach of s 15(2)(d) by
virtue of the following measures:

  • unilaterally changing his duties;
  • removing his assistant;
  • placing restrictions on his performance of duties;
  • setting new performance criteria without providing him with any opportunity
    to fulfil those criteria or any realistic or fair timeframe for doing so; and
  • demoting him.[393]

In relation to the first measure, Driver FM found that, on the
evidence, whilst the applicant’s duties were unilaterally altered by the
respondent, this did not constitute a detriment as the applicant had not
objected to the changes. On the contrary, the applicant had expressed
satisfaction with the changes and they had been a measure to ‘better fit
[the applicant’s] duties with his
capacity’.[394]

However his Honour held that the remaining measures did constitute
‘detriments’ within the meaning of s
15(2)(d).[395]

In Penhall-Jones v State of
NSW
,[396] Raphael FM held that
the making of a sarcastic remark by one employee to another employee because of
the other person’s disability constituted disability discrimination. His
Honour did not specifically identify the section of the DDA that the conduct
breached, however, given the context of the claim it seems that it is likely to
have been one of the subsections of s 15 and most likely s 15(2)(d).

(d) Inherent
requirements

Section 15(4) provides a defence to a claim of
unlawful discrimination in circumstances where a person is unable to
‘carry out the inherent requirements of the particular employment’.
The defence is only available in relation to a breach of s 15(1)(6) (determining
who should be offered employment) and s 15(2)(c) (dismissing the employee). The
onus of proving the elements of the defence is on the
respondent.[397]
Another
significant issue in relation to s 15(4) has been the meaning of
‘unjustifiable hardship’, which is discussed separately at 5.5.1.

(i) Meaning of
‘inherent requirements’

The meaning of ‘inherent requirements’, albeit in a different
statutory context, was considered by the High Court in Qantas Airways Ltd v
Christie
.[398] The applicant
in that case had complained that he was terminated from his employment as a
pilot by reason of his age (60 years) contrary to s 170DF(1) of the Industrial Relations Act 1988 (Cth). Section 170DF(2) of that Act
provided a defence if the reason for termination was based on the
‘inherent requirements of the particular position’. In considering
the meaning of ‘inherent requirements’, Brennan CJ stated:

The question whether a requirement is inherent in a position must be answered
by reference not only to the terms of the employment contract but also by
reference to the function which the employee performs as part of the
employer’s undertaking and, except where the employer’s undertaking
is organised on a basis which impermissibly discriminates against the employee,
by reference to that
organisation.[399]

Gaudron J held that an ‘inherent requirement’ was something
‘essential to the
position’[400] and suggested
that:

A practical method of determining whether or not a requirement is an inherent
requirement, in the ordinary sense of that expression, is to ask whether the
position would be essentially the same if that requirement were dispensed
with.[401]

The High Court subsequently considered the meaning of ‘inherent
requirements’ in the context of s 15(4) in X v
Commonwealth.
[402] The
appellant, X, was discharged from the Army upon being diagnosed HIV-positive
(although he enjoyed apparent good health and was ‘symptom free’).
The Commonwealth argued that it was an inherent requirement of the
applicant’s employment that he be able to be deployed as required by the
Defence Force. This requirement arose out of considerations of operational
effectiveness and efficiency. The Commonwealth maintained that the appellant
could not be deployed as needed because, whether in training or in combat, he
may be injured and spill blood with the risk of transmission of HIV infection to
another soldier.

McHugh J noted that it is for the trier of fact to determine whether or not a
requirement is inherent in a particular employment. A respondent is not able to
organise or define their business so as to permit discriminatory
conduct.[403] However, his Honour
suggested that ‘appropriate recognition’ must be given ‘to the
business judgment of the employer in organizing its undertaking and in regarding
this or that requirement as essential to the particular
employment’.[404]

McHugh J also noted that the concept of ‘inherent requirements’
must be understood in the context of the defence of ‘unjustifiable
hardship’ (see 5.5.1 below) such that an employer may be required to
provide assistance to an employee to enable them to fulfil the inherent
requirements of a job. He stated:

Section 15(4) must be read as a whole. When it is so read, it is clear enough
that the object of the sub-section is to prevent discrimination being unlawful
whenever the employee is discriminated against because he or she is unable
either alone or with assistance to carry out the inherent requirements of the
particular employment. If the employee can carry out those requirements with
services or facilities which the employer can provide without undue hardship, s
15(4) does not render lawful an act of discrimination by the employer that falls
within s 15. For discrimination falling within s 15 to be not unlawful,
therefore, the employee must have been discriminated against because he or she
was:

(a) not only unable to carry out the inherent requirements of the particular
employment without assistance; but was also

(b) able to do so only with assistance that it would be unjustifiably harsh
to expect the employer to
provide.[405]

In Williams v
Commonwealth
,[406] it was held
that the ‘inherent requirements’ of a position did not include
‘theoretical’ or ‘potential’ requirements of the
position. The applicant was discharged from the RAAF on the ground of his
insulin dependent diabetes. His discharge followed the introduction of a
directive requiring every member of the RAAF to be able to be deployed to
‘Bare Base’ facilities (which imposed arduous conditions and
provided little or no support) and undertake base combatant duties.

The Commonwealth argued that the applicant was unable to carry out these
‘inherent requirements’ by virtue of his diabetes. This was due to
problems with ensuring a regular supply of insulin, potential complications
relating to diabetes and the conditions under deployment including arduous
conditions and irregular meals. Alternatively, it was argued that in order for
the applicant to carry out the inherent requirements of the employment, he would
require services or facilities which would impose unjustifiable hardship on the
respondent.

At first instance, McInnis FM applied X v
Commonwealth
[407] and upheld
the application, finding that deployment of the type suggested by the
Commonwealth was not part of the inherent requirements of the applicant’s
particular employment. In doing so he distinguished the ‘theoretical
potential requirements’ of the employment from its inherent
requirements:

On the material before me I am not prepared to find that in analysing the
particular employment of this Applicant that there are inherent requirements of
that employment that he should perform combat or combat related duties in any
real or actual day to day sense. At its highest there is a requirement or
minimum employment standard which has been artificially imposed on all defence
personnel which cannot in my view simply apply to each and every occupation
regardless of the practical day to day reality of the inherent requirements of
the particular employment of the member concerned ... I reject [the
respondent’s submission] that the theoretical potential requirements of
members of the RAAF should be used as a basis upon which an analysis of the
particular employment and inherent requirements of the particular employment can
be assessed for this
Applicant.[408]

The decision of McInnis FM was overturned by the Full Federal Court in Commonwealth v
Williams
[409] on the basis of
the exemption in s 53 of the DDA (considered below in 5.5.2(b)). His Honour’s findings in relation to
inherent requirements were not considered.

The relevance of pre-employment training or induction periods in applying the
inherent requirements defence was considered by Heerey J in Gordon v
Commonwealth.
[410] In that
case, the applicant had been offered employment as a field officer with the
Australian Tax Office (ATO), a position which required a significant amount of
driving. His offer of employment was subsequently withdrawn whilst he was
completing induction, based on medical assessments revealing that he had very
high blood pressure which was said to affect his ability to drive.

Heerey J noted that the applicant would not have been required to drive
during the 16 week induction program, during which time his blood pressure could
have been satisfactorily brought under control with medication. Accordingly, by
the completion of the induction program, he would have been able to comply with
the requirement of the position to be able to
drive.[411]

(ii) Extent to
which an employer must assist an aggrieved person to be able to carry out
inherent requirements

In X v Commonwealth, the High Court made it clear that s 15(4) does
not require an employer to modify the nature of a particular employment, or its
inherent requirements, to accommodate a person with a disability. Gummow and
Hayne JJ (with whom Gleeson CJ and Callinan J agreed) observed:

the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some
identified type or some different employment modified to meet the needs of a
disabled employee or applicant for
work.[412]

This point was central to the decision in Cosma v Qantas Airways
Ltd
[413] (‘Cosma’). The applicant in that matter was employed by the
respondent as a porter in ramp services at Melbourne Airport. It was accepted
that he was not able to perform the ‘inherent requirements’ of his
position due to a shoulder injury. His application was dismissed by Heerey J
because the applicant failed to identify any services or facilities which might
have been provided by the employer pursuant to s 15(4)(b) to enable him to
fulfil the inherent requirements of the particular employment. His Honour
noted:

this provision does not require the employer to alter the nature of the
particular employment or its inherent requirements. Rather it is a question of
overcoming an employee’s inability, by reason of disability, to perform
such work. This is to be done by provision of assistance in the form of
‘services’, such as providing a person to read documents for a blind
employee, or ‘facilities’ such as physical adjustment like a wheel
chair ramp. The ‘services’ or ‘facilities’ are external
to the ‘particular employment’ which remains the
same.[414]

The decision in Cosma was distinguished in the case of Barghouthi v
Transfield Pty Ltd,
[415] where
Hill J found that an employee had suffered unlawful discrimination when he was
constructively dismissed from his employment after advising his employer that he
was unable to return to work on account of a back injury. Hill J held that,
unlike the position in Cosma, there was no evidence that the applicant
‘could not continue his employment with [the respondent] working in an
office or in some capacity not inconsistent with his disability’. His
Honour went on to find that:

The failure to explore such possibilities means that the respondent’s
dismissal cannot fall within the terms of s 15(4) and the dismissal amounts to
discrimination in
employment.[416]

While the decision would appear to blur the
distinction between factors which accommodate the needs of a person with a
disability and those which require a modification of the nature of a particular
employment, the decision highlights that the onus is on the respondent to make
out this defence to a claim of discrimination.

(iii) ‘Unable
to carry out’

Another
issue relevant to the ‘inherent requirements’ defence is the extent
to which an aggrieved person must be unable to carry out the relevant inherent
requirements.

In X v Commonwealth, it was held at first instance by
HREOC[417] that the ability to
carry out the inherent requirements of the employment should be understood as
referring to the employee’s physical ability to perform the characteristic
tasks or skills of the particular employment. Given that the employee was able
to perform the requisite tasks, the complaint was upheld. The inability to
deploy the complainant was found to result not from the personal consequence of
the complainant’s disability, but from the policy of the ADF.

This reasoning of HREOC was rejected by the majority of the High Court.
McHugh J stated:

‘the inherent requirements’ of a ‘particular
employment’ are not confined to the physical ability or skill of the
employee to perform the ‘characteristic’ task or skill of the
employment. In most employment situations, the inherent requirements of the
employment will also require the employee to be able to work in a way that does
not pose a risk to the health or safety of fellow
employees.[418]

Similarly, Gummow and Hayne JJ (with whom Gleeson CJ and Callinan J agreed)
held:

It follows from both the reference to inherent requirements and the reference
to particular employment that, in considering the application of s 15(4)(a), it
is necessary to identify not only the terms and conditions which stipulate what
the employee is to do or be trained for, but also those terms and conditions
which identify the circumstances in which the particular employment will be
carried on. Those circumstances will often include the place or places at which
the employment is to be performed and may also encompass other considerations.
For example, it may be necessary to consider whether the employee is to work
with others in some particular way. It may also be necessary to consider the
dangers to which the employee may be exposed and the dangers to which the
employee may expose
others.[419]

A similar issue arose in Vickers, where the applicant was refused a
position as an ambulance officer because of his Type 1, insulin-dependent
diabetes. The respondent argued that the applicant’s diabetes posed a
grave risk to the safety of himself, his patients and the community at large due
to the risk of him suffering a hypoglycaemic event whilst driving an ambulance
at a high speed or whilst treating a patient. Accordingly, it argued, he was
unable to safely carry out the inherent requirements of the
employment.

Raphael FM applied X v Commonwealth and held that mere technical
ability to comply with the inherent requirements of a position was not
sufficient; the aggrieved person must be able to do so safely.[420] However, his
Honour held that the safety risk posed by a person’s disability must be
considered in light of that person’s individual characteristics, rather
than assumptions about that person’s disability based on stereotypes. In
addition, that risk must be balanced against other relevant factors, including
the likelihood of that risk eventuating. His Honour held that there is no
requirement on an employer to ‘guarantee’ the safety of a potential
employee and others, as this would be ‘far too exclusionary of persons
with diabetes’.[421]

His Honour accepted the evidence that the applicant’s diabetes was very
well controlled and a hypoglycaemic event was therefore very
unlikely.[422] His Honour further
held that the chances were even more remote that the applicant would suffer a
hypoglycaemic event whilst driving an ambulance or treating a patient in
circumstances where a delay of 30 – 60 seconds to consume some glucose
would be critical to the care of his patient or to the safety of co-workers or
members of the public.[423]

In Power v Aboriginal Hostels
Ltd
[424] (‘Power’), Brown FM referred to the distinction that needed
to be drawn between ‘inability’ and ‘difficulty’
exhibited by the person concerned in the performance of the inherent
requirements of the
employment.[425] His Honour noted
that whilst the applicant may have found it difficult to perform the tasks of
the position of assistant manager of the hostel because of his psychiatric
illness, ‘difficulty’ is not sufficient for the purposes of s 15(4):

Rather it must be shown that the person’s disability renders him or her incapable of performing the tasks required of the
position.[426] (emphasis
added)

Applying X v Commonwealth, Brown FM noted that ‘such inability
must be assessed in a practical
way’.[427] In his view the
only practical way to make the assessment in this case was to examine the
medical evidence.[428] Having made
that assessment he accepted that the applicant was not incapable of performing
the inherent requirements of his position of assistant manager, regardless of
the workplace environment, and s 15(4) therefore had no
application.[429]

(iv) Imputed
disabilities

Another issue which has arisen in the context of s 15(4) is whether ability
to carry out the inherent requirements of the position should be assessed by
reference to the aggrieved person’s actual disability or imputed
disability.

This issue arose in Power. The applicant had been dismissed from his
employment after the respondent imputed to him the disability of depression and
determined that that disability rendered him unable to perform the inherent
requirements of the position of assistant manager at one of its hostels. At
first instance, Brown FM accepted that the defence under s 15(4) was made out,
because: ‘[i]n essence, the respondent was entitled to consider that Mr
Power was not cut out for the particular
job...’.[430]

On appeal, Selway J held that Brown FM had erred, stating:

The requirement of s 15(4) of the DDA in the current context is to determine
whether or not the employee ‘because of his or her disability would be
unable to carry out the inherent requirements of the particular
employment’. It is not relevant to that determination to consider whether
the termination may have been justifiable for other reasons or
not.[431]

His Honour also considered the issue of whether the aggrieved person’s
actual or imputed disability was relevant when applying s 15(4), observing:

The next question is whether the appellant is unable to perform those duties
‘because of his disability’. That question was not addressed by the
learned Federal Magistrate. In my view the failure to address that question was
an appealable error. If the question had been addressed then there are two
possibilities. The first is that the ‘imputed disorder’ of
depression is the relevant disability. Alternatively, his actual condition of an
adjustment disorder (from which he seems to have recovered) is the relevant
disability.

The appellant’s submissions assumed that the relevant disability was
the actual condition of the appellant at the time of his termination. On that
basis the appellant submitted that he could perform the inherent requirements of
the position - indeed, he was doing so for the four weeks before his employment
was terminated. Consequently, he argued, s 15(4) of the DDA had no application.

On the other hand the respondent’s submissions assumed that the
relevant disability was the imputed disorder of depression, notwithstanding that
the appellant was not suffering from that disability. On this basis the
respondent argued that in light of the report of Dr Ducrou the appellant was
unable to comply with the inherent duties of the position.

So far as my research reveals, there is no authority directly on point. The
definition of ‘disability’ in s 4 of the DDA purports to be an
exhaustive definition, ‘unless the contrary intention appears’.
There is no obvious contrary intention disclosed by s 15(4). Nor is there any
obvious reason to imply one. The DDA is principally directed to the elimination
as far as possible of ‘discrimination against persons on the ground of
disability’ in relevant areas (s 3 DDA). It is not directed at achieving
‘fair outcomes’ as such. Consequently what is prohibited is
discriminatory behaviour based upon disability. ‘Imputed’ disability
is sufficient for this purpose. What the DDA prohibited in this case was not the
dismissal of the appellant for a reason which was wrong, but the dismissal of
the appellant who had a disability (albeit an imputed one) in circumstances
where a person without a disability would not have been dismissed. When it is
understood that the DDA is directed at the ground of discrimination (which
includes imputed disability) and not ‘fair outcomes’ then there
seems no reason to imply that ‘disability’ appearing in s 15(4) of
the DDA does not include imputed
disability.[432]

On remittal from the Federal
Court,[433] Brown FM noted that
the applicant had been dismissed on the basis of a disability (depression) that
he did not have. The applicant did, however, have another disability (adjustment
disorder) which had ‘resolved’ prior to his dismissal. Brown FM
concluded that it was the aggrieved person’s actual disability that
was to be considered when applying s 15(4), stating that ‘it would be
absurd if the exculpatory provisions of section 15(4) were to be implied to the
imputed disability per
se’[434] such that an
employer could lawfully dismiss an employee on the basis that they were unable
to carry out the inherent requirements of the position because of a disability
that they did not have.

Interestingly, in the more recent decision of Gordon v
Commonwealth
[435] (‘Gordon’), Heerey J took a different view in relation to
Selway J’s comments in Power. In Gordon, the applicant had
been offered a position as a field officer with the Australian Tax Office
(‘ATO’), which involved a significant amount of driving. The offer
had been made subject to a satisfactory medical assessment during the induction
phase of the position. The offer was subsequently withdrawn whilst the applicant
was completing his induction on the basis of certain medical reports showing him
to have very high blood pressure which was said to affect his ability to drive.

Heerey J held that the relevant medical reports did not paint an accurate
picture of the applicant’s blood pressure, as additional medical evidence
demonstrated that he suffered from ‘white coat syndrome’ (anxiety
when undergoing medical assessments), which temporarily raised his blood
pressure when the readings were taken. Accordingly, the ATO had essentially
withdrawn the offer based on an imputed disability (severe hypertension) that
the applicant in fact did not have, or at least not to the extent believed by
the ATO and its medical adviser.

In considering the application of s 15(4), Heerey J cited the passage from
Selway J’s judgment in Power (quoted above), which his Honour
regarded as authority for the proposition that, when applying s 15(4), it is the
applicant’s imputed disability that must be
considered.[436] His Honour does
not appear to have been referred to the decision of Brown FM, on remittal,
taking the contrary view. His Honour added that the word
‘disability’ should logically be interpreted consistently throughout
s 15, such that if the alleged discrimination under s 15(1) or (2) was based on
an imputed disability, then the defence under s 15(4) should also be applied by
reference to that same imputed disability. His Honour concluded:

Since s 15 as a whole is setting up a norm of conduct, it is to be read as
addressed to employers as at the time they are contemplating potentially
discriminatory conduct. Subsections (1) and (2) tell employers what they must
not do. Subsections (3) and (4) tell them in what circumstances they may
lawfully do what would otherwise amount to unlawful discrimination. This
suggests that what subs (4) is concerned with are circumstances known to the
employer at the time. However, consistently with the philosophy of
anti-discrimination legislation (see [58] above), the criterion is an objective
one – as is indicated by the reference to ‘all other factors that it
is reasonable to take into account’. The relevant circumstances include
the nature of the imputed disability in light of such medical investigation as
may be reasonable and the availability of reasonable
treatment.[437]

In the circumstances of the case, his Honour held that the respondent had
failed to show that the applicant was unable to carry out the inherent
requirements of the position ‘by reason of his imputed (or indeed actual)
hypertension’.[438] This was
on account of the fact that at the time of the alleged discrimination it was
reasonably apparent that:

  • the applicant may have been affected by ‘white coat
    syndrome’;
  • ‘ambulatory testing’ (using a device to record blood pressure
    over a 24 hour period) would have likely revealed that his blood pressure was
    significantly lower than first thought; and
  • in any event, even with elevated blood pressure, this could have been
    satisfactorily brought under control within the period of his induction, during
    which time the applicant would not have been required to drive a
    vehicle.[439]

Interestingly,
his Honour’s reasoning appears to suggest that where medical
investigations or treatment are reasonably available that would have revealed
the person’s imputed disability to be less severe (or possibly even false)
than was imputed, it is that disability rather than the imputed disability that
is relevant when applying s 15(4). In most cases, this would presumably equate
with the person’s actual disability (or lack thereof).

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5.3.2 Education

A
number of significant cases under the DDA have related to disability
discrimination in education.[440] Section 22 of the DDA provides:

22 Education

(1) It is unlawful for an educational authority to discriminate against a
person on the ground of the person’s disability or a disability of any of
the other person’s associates:

(a) by refusing or failing to accept the person’s application for
admission as a student; or

(b) in the terms or conditions on which it is prepared to admit the person
as a student.

(2) It is unlawful for an educational authority to
discriminate against a

student on the ground of the student’s disability or a disability
of

(a) any of the student’s associates:by denying the student access, or
limiting the student’s access, to any benefit provided by the educational
authority; or

(b) by expelling the student; or

(c) by subjecting the student to any other detriment.

(2A) It
is unlawful for an education provider to discriminate against a person on the
ground of the person’s disability or a disability of any of the
person’s associates:

(a) by developing curricula or training courses having a content that will
either exclude the person from participation, or subject the person to any other
detriment; or

(b) by accrediting curricula or training courses having such a content.

(3) This section does not render it unlawful to discriminate
against a person on the ground of the person’s disability in respect of
admission to an educational institution established wholly or primarily for
students who have a particular disability where the person does not have that
particular disability.

(4) This section does not make it unlawful for an education provider to
discriminate against a person or student as described in subsection (1), (2) or
(2A) on the ground of the disability of the person or student or a disability of
any associate of the person or student if avoidance of that discrimination would
impose an unjustifiable hardship on the education provider concerned.

As discussed above at 5.2.5(b), since
18 August 2005 disability discrimination in education is subject to the Disability Standards for Education 2005. These Standards clarify the
obligations and responsibilities of education providers in avoiding unlawful
discrimination on the basis of disability in education.

(a) Changes made
to s 22 and availability of defence of unjustifiable hardship

It
should be noted that, as originally drafted, the defence of unjustifiable
hardship in s 22(4) only applied to admission of students to educational
institutions.[441] The defence was
not available in relation to the treatment of students once they had been
admitted. This distinction was of some importance in the decision of the High
Court in Purvis v New South Wales (Department of Education and
Training)
[442] (see 5.2.1 above). The case involved the expulsion of a
child with behavioural problems from a school. Given that the case was brought
as one of direct discrimination, it was not open to the respondent to argue that
its expulsion of the child was not unreasonable under s 6(b). Similarly, due to
the way s 22(4) was then worded, it was also not open to the respondent to argue
that permitting the child to remain at the school would have imposed an
unjustifiable hardship. Accordingly, the case fell to be decided on the question
of whether the school’s expulsion of the child was ‘on the ground
of’ the student’s disability for the purposes of establishing direct
discrimination under s 5.

In their dissenting joint judgement, Kirby and McHugh JJ argued that the
absence of an ‘unjustifiable hardship’ defence in relation to
admitted students was ‘anomalous’ and required Parliament’s
correction, rather than the court’s imposition of an artificial
construction of s 5 to cure the apparent defect in the legislation on the facts
before them:

As we have already indicated, the unjustifiable hardship provisions in
relation to education operate only in relation to a refusal or failure to accept
a student's enrolment and not the way in which that person, once admitted, must
be treated. The appropriate course, however, is to accept that the limited
operation of s 22(4) is anomalous and requires correction by Parliament, rather
than to impose on the definitional provisions an artificial construction in an
attempt to resolve the
anomaly.[443]

By contrast, as discussed above at 5.2.2(b), the majority resolved the matter in the
respondent’s favour based on their construction of the appropriate
comparator for the purposes of s 5.

Notwithstanding the approach taken by the majority in Purvis, s 22 of
the DDA was subsequently amended in 2005 to, amongst other things, extend the
unjustifiable hardship defence to s 22(2) (as well as the newly created s
22(2A)).[444]

(b) ‘Educational
authority’

Another issue that has arisen in relation to s
22 is the scope of the expression ‘educational authority.’ In Applicant N v Respondent
C
,[445] the respondent argued
that it was a child care centre, not an ‘educational authority’ and
therefore not subject to s 22 of the DDA. McInnes FM held that the expression
‘educational authority’ should be interpreted broadly and would
include a child care centre.[446] His Honour held:

On the evidence and the pleadings before this court, at the very least, in my
view, the Respondent can be said to manage an institution which provides for
education of children in the development of mental or physical powers and/or
the moulding of some aspects of
character.
[447] (emphasis
added)

(c) Education as
a service?

One matter that remains unresolved in relation to s
22 is whether an education authority or institution is the provider of a
‘service’, so as to also trigger the application of s 24 (provision
of goods, services and facilities).

In Clarke v Catholic Education
Office
,[448] the
applicant’s complaint related to the terms and conditions under which his
son was offered enrolment at the respondent’s school. This was argued as
being unlawful discrimination contrary to s 22(1)(b) or alternatively unlawful
discrimination in the provision of educational services, contrary to s 24(1)(b).
Madgwick J was prepared to permit this alternative claim to be included as part
of the proceedings.[449] However,
in upholding the applicant’s claim, his Honour did not make it clear under
which specific provision the discrimination was found to be
unlawful.[450]

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5.3.3 Access
to premises

Section 23 of the DDA deals with discrimination in
relation to access to premises, as follows:

23 Access to premises

(1) It is unlawful for a person to discriminate against another person on the ground of the other person’s disability or a disability of
any of that other person’s associates:

(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or

(c) in relation to the provision of means of access to suchpremises; or

(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or

(f) by requiring the other person to leave such premises or cease to use such facilities.

(2) This section does not render it unlawful to discriminate against a person on the ground of the person’s disability in relation to the provision of access to premises if:

(a) the premises are so designed or constructed as to beinaccessible to a person with a disability; and

(b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.

Premises are defined by s 4 of the DDA as follows:

premises includes:

(a) a structure, building, aircraft, vehicle or vessel; and

(b) a place (whether enclosed or built on or not); and

(c) a part of premises (including premises of a kind referred to in
paragraph (a) or (b)).

The scope of the expression ‘terms and conditions’ for the
purposes of s 23 was considered in Haar v Maldon
Nominees
.[451] The applicant,
who was visually impaired and had a guide dog, complained that she had been
discriminated against when she was asked to sit outside on her next visit to the
respondent’s premises. McInnis FM upheld the complaint, finding:

In my opinion the imposition of terms and conditions for the purpose of s 23
of the DDA does not have to be in writing or in precise language. So long as the
words uttered are capable of meaning and were understood to mean that the
Applicant would only be allowed access to the premises in a restricted manner
and/or use of the facilities in a restricted manner then in my view that is
sufficient to constitute a breach of the
legislation.[452]

Other examples of cases concerning access to premises
include:[453]

  • Sheehan
    v Tin Can Bay Country
    Club,
    [454]
  • where Raphael FM
    decided that a man with an anxiety disorder that required him to have an
    assistance dog in social situations was discriminated against when his local
    club imposed the condition that his dog not be allowed into the club unless it
    was on a leash.[455] See 5.2.4(b).
  • Access For All Alliance (Hervey Bay) Inc v Hervey Bay City
    Council,
    [456] where the
    applicant organisation complained that certain council facilities (a community
    centre, concrete picnic tables and public toilets) were inaccessible to members
    of the organisation who had disabilities. Baumann FM found that the three areas
    the subject of the application all fell within the definition of
    ‘premises’ for the purposes of s 4 of the
    DDA.[457] However, only the claim
    in relation to the toilet facilities (specifically, the fact that wash basins
    were located outside the toilet) was successful. See 5.2.3(b) and 5.2.3(e).
  • Queensland (Queensland Health) v
    Forest
    ,[458] where the Full
    Federal Court accepted that the applicant had not been discriminated against by
    the respondent’s refusal to allow him entry to certain medical premises
    whilst accompanied by his assistance animals.

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5.3.4 Provision
of goods, services and facilities

Section 24 of the DDA deals
with discrimination in relation to the provision of goods, services and
facilities, as follows:

24 Goods, services and facilities

(1) It is unlawful for a person who, whether for payment or not, provides
goods or services, or makes facilities available, to discriminate against
another person on the ground of the other person’s disability or a
disability of any of that other person’s associates:

(a) by refusing to provide the other person with those goods or services or
to make those facilities available to the other person; or

(b) in the terms or conditions on which the first-mentioned person provides
the other person with those goods or services or makes those facilities
available to the other person; or

(c) in the manner in which the first-mentioned person provides the other
person with those goods or services or makes those facilities available to the
other person.

(2) This section does not render it unlawful to discriminate against a person
on the ground of the person’s disability if the provision of the goods or
services, or making facilities available, would impose unjustifiable hardship on
the person who provides the goods or services or makes the facilities
available.

(a) Defining a
‘service’

(i)
Council planning decisions

In IW v City of
Perth
[459] (‘IW’), the High Court considered the meaning of
‘services’ in s 4(1) of the Equal Opportunity Act 1984 (WA).[460] In that matter, People
Living With Aids (WA) Inc (‘PLWA’) had applied to Perth City Council
for approval to use premises in an area zoned for shopping as a day time drop-in
centre for persons who were HIV positive. The respondent Council rejected the
application and it was argued that this amounted to discrimination on the
grounds of impairment.

A majority of the High Court dismissed the appeal (Toohey and Kirby JJ
dissenting). However, of the majority, only Brennan and McHugh JJ based their
reasoning on a conclusion that there was no service. Their Honours held that:

when a council is called on as a deliberative body to exercise a statutory
power or to execute a statutory duty, it may be acting directly as an arm of
government rather than a provider of services and its actions will be outside
the scope of the Act.[461]

They stated further:

when a council is required to act in a quasi-judicial role in exercising a
statutory power or duty it may be inappropriate to characterise the process as
the provision of a service for the purpose of the Act even in cases when the
product of the process is the provision of a benefit to an
individual.[462]

In dissenting or obiter comments the other members of the Court said that
there was a ‘service’ being provided by the Council. Dawson and
Gaudron JJ said that ‘services in its ordinary meaning, is apt to include
the administration and enforcement by the City of Perth of the Planning
Scheme’.[463] Similarly,
Gummow J said that the Council was providing ‘services’ when it
granted or refused a particular application for
consent.[464] Toohey J said the
‘service’ in this case could be seen as the consideration and
disposition of the application for planning
approval.[465] Kirby J also said
that ‘services’ read in its context includes the provision by a
local government body of a planning decision to alter the permissible use of
premises.[466]

(ii) Prisons
as a service

The extent to which a prison may be regarded as the provider of a service
arose in Rainsford v Victoria (No
2).
[467] The applicant,
who suffered a back condition, was a prisoner at Port Philip Prison. He
complained that prison transport arrangements which involved lengthy journeys in
uncomfortable vehicles would leave him in pain and with limited movement. He
also complained that he had been locked down in a Management Unit of Port Philip
Prison for 23 hours a day for 9 days during which he was unable to access
exercise facilities. The applicant alleged this treatment constituted unlawful
discrimination contrary to the DDA.

Raphael FM concluded that the respondents had not provided a
service.[468] His Honour stated:

In the case of these particular prison ‘services’ they cannot be
separated from the duty of incarceration. A place must be provided for a
prisoner to sleep and in order to move the prisoner from the place of trial to
the place of incarceration transport must be
used.[469]

His Honour referred to IW, authorities reviewed
therein[470] and other Australian
authorities[471] and stated:

If, in the case of services of the kind provided by a government one
distinguishes the statutory duty element from the services element by assessing
whether the alleged services element is intended to provide a benefit to the
complainer then it can be seen that the decided cases are
consistent.[472]

His Honour then proceeded to draw a distinction between a government
authority acting under the authority of statute deciding whether or not to
extend a service to an individual, compared with the case before him in which no
discretionary element existed. He stated that ‘incarceration is the result
of the coercive power of the State following judicial determination, and is a
decision imposed on both the prisoner and the provider of correctional
services’.[473]

An appeal against Raphael FM’s decision was successful on procedural
grounds, namely that his Honour had incorrectly applied the separate question
procedure under Part 17, r 17 of the Federal Magistrates Court Rules 2001 (Cth).[474] However, in obiter
comments, Kenny J (with whom Hill and Finn JJ agreed), rejected the distinction
sought to be drawn by Raphael FM between the provision of a service pursuant to
a statutory discretion and the situation where no discretion existed. Her Honour
held:

The Federal Magistrate erroneously relied on a distinction that he drew
between the provision of services pursuant to a statutory discretion and
‘the situation ... where no discretionary element exists’.

In addition to the management and security of prisons, the purposes of the Corrections Act 1986 (Vic) include provision for the welfare of
offenders. The custodial regime that governs prisoners under this Act is
compatible with the provision of services to them: see, for example, s 47.
Indeed this proposition is fortified by the provision of the Prison Services
Agreement to which counsel for Mr Rainsford referred on the hearing of the
appeal. In discharging their statutory duties and functions and exercising their
powers with respect to the management and security of prisons, the respondents
were also providing services to prisoners. The fact that prisoners were unable
to provide for themselves because of their imprisonment meant that they were
dependent in all aspects of their daily living on the provision of services by
the respondents. Although the provision of transport and accommodation would
ordinarily constitute the provision of services, whether the acts relied on by
Mr Rainsford will constitute services for the DDA will depend upon the findings
of fact, which are yet to be made and, in particular, the identification of the
acts that are said to constitute such
services.[475]

The Full Court remitted the matter back to Federal Magistrates Court, where
it was subsequently transferred to the Federal Court for hearing before Sundberg
J.[476]

Sundberg J confirmed that whether the particular services alleged by the
applicant fell within the DDA was a question of fact. His Honour held that it
was necessary to identify the alleged service with some precision and then ask
whether that service was being provided to the applicant. In doing so, his
Honour held, the guiding principle is whether the respondent’s actions
could be characterised as being helpful or beneficial to the
applicant.[477]

On the facts, Sundberg J rejected the applicant’s characterisation of
the relevant service as ‘prison management and control’. Rather, his
Honour held that the identification of the services required greater
specificity, namely the transportation of prisoners and the accommodation of
prisoners in cells within the prison
system.[478] When so identified,
his Honour held, neither constituted a service within the meaning of the DDA.
This was because both alleged services were simply inherent parts of
incarceration and prison management. They did not confer any benefit or helpful
activity on the prisoners in the relevant
sense.[479]

Sundberg J also emphasised that, in considering whether the relevant acts
constituted the provision of a service to the applicant, it was necessary to
have regard to the wider obligations of the respondents in providing prison
management:

Their obligations are not just to the welfare of prisoners but also to the
general public and prison staff through providing adequate security measures, to
other prisoners by ensuring that prisoners do not harm one another, and to the
general good governance of the prison. To suggest that transport of prisoners or
cell accommodation is a service to prisoners is to ignore the fact that they are
functions performed in order to comply with the sometimes competing obligations
of prison management to its prisoners, its staff, the public and the good
governance of the prison.[480]

On further appeal,[481] the
Full Federal Court concluded that none of the matters about which the appellant
complained met the test for indirect discrimination under s 6. Accordingly, the
Court considered that it was unnecessary to reach a finding on the question of
whether the respondent prison was the provider of a service within the meaning
of s 24. However, their Honours did observe, in obiter, that

although the meaning of ‘service’ is not simple to resolve, and
the matter was not argued in depth, we see some strength in the view that the
provision of transport and accommodation, even in a prison, may amount to a
service or facility.[482]

(iii) Other
disputed services

The applicant in Vintila v Federal Attorney
General
[483] sought to
challenge a Regulation Impact Statement (‘RIS’) prepared by the
Commonwealth Attorney-General for Cabinet in relation to draft disability
standards for public transport. He argued that the preparation of the RIS
involved the provision of a service and was therefore covered by the DDA.

In summarily dismissing the application, McInnis FM found that an RIS does
not constitute the provision of a ‘service’. Without reference to
other authorities, his Honour held:

In my view an RIS cannot possibly constitute the provision of a service for
the purpose of section 24 of the DDA. In my view it is further not correct to
suggest that a proposal set out in a document which is no more than an impact
statement, or indeed if one uses the expression, ‘a cost benefit
analysis’, can in any way constitute conduct which would attract the
attention of section 24 of the DDA. It is, as I have indicated, a document that
can be characterised as no doubt a significant document for the proper
consideration of cabinet which may reject or accept it, which may decide to
introduce a bill into parliament which may decide to embrace part, all or
nothing which is set out in the
RIS.[484]

In Ball v Morgan,[485] McInnes FM held that a particular service would fall outside s 24 of the DDA if
it was illegal or ‘against good
morals’.[486] The applicant
had been at an illegal brothel in Victoria and alleged that she had been
discriminated against in the provision of the services and facilities at that
brothel on the basis of her disability which required her to use a wheelchair.
McInnis FM queried whether or not this fell within the scope of
‘services’ under the DDA:

The preliminary issue therefore which I need to consider is whether the
provision of a service characterised as an illegal brothel is a service of a
kind which would attract the attention of human rights legislation and in
particular whether the provisions relied upon in the DDA can be applied for the
benefit of the applicant in the present case even if I were to assume that
discrimination has
occurred.[487]

McInnis FM dismissed the application, finding:

It is difficult in circumstances of this kind to determine the extent to
which the court should refuse to allow a claim to be pursued but in all the
circumstances I am satisfied that to do so would be to allow the applicant to
pursue a claim arising out of the provision of an illegal service and/or would
allow a claim to be pursued in relation to an activity that I am satisfied would
affront public conscience and even in this modern age would be regarded as
against good morals. [488]

(b) ‘Refusal’
of a service

In IW, while finding that the respondent
council was providing a service in the consideration of applications for
planning approval, Dawson and Gaudron JJ rejected the argument that there had
been a refusal to provide the service:

Once the service in issue is identified as the exercise of a discretion to
grant or withhold planning approval, a case of refusal to provide that service
is not established simply by showing that there was a refusal of planning
approval. Rather it is necessary to show a refusal to consider whether or not
approval should be
granted.[489]

Similarly, Gummow J held that the Council did not refuse to provide services
as it did not refuse to accept or deal with the application by
PLWA.[490]

In Tate v Rafin,[491] the respondent argued that a person is not discriminated against by being
refused access to goods, services or facilities in circumstances where they have
access to goods, services or facilities from another source. Wilcox J rejected
that argument, holding:

it is no answer to a claim of discrimination by refusal of provision of
goods, services or facilities to say that the discriminatee is, or may be, able
to obtain the goods, services or facilities elsewhere. The Act is concerned to
prevent discrimination occurring; that is why it makes the particular
discriminatory act unlawful and provides a remedy to the
discriminatee.[492]

The
mere fact that a service is not provided on a particular occasion does not
necessarily establish that there has been a ‘refusal’ of that
service. For example, in Ball v Silver Top Taxi Service
Ltd
[493] the applicant, who
used an electric wheelchair for mobility, brought a complaint against the
respondent in relation to its failure to meet her booking for a wheelchair
accessible taxi. It was accepted that the services provided by the respondent
were ‘services relating to transport or travel’ for the purposes of
s 4(1).[494] The applicant argued
that there had been a refusal to provide that service to people with
disabilities. Walters FM held, however, that the respondent did not refuse to provide the applicant with its services: rather, it did all
that it could to dispatch an appropriate taxi on the particular
day.[495] His Honour concluded
that the respondent dealt with the applicant’s booking in the same way as
it dealt with bookings for a standard taxi from persons without the
applicant’s disability.[496]

By contrast, in Wood v Calvary
Hospital
,[497] Moore J
emphasised that the meaning of ‘refusing’ in s 24(1)(a) should be
given a beneficial construction and the section ‘does not cease to apply
where a putative discriminator is for some reason temporarily unable to provide
the goods or services’.[498] In that case the applicant had requested certain medical treatment at home
through the ‘Calvary at Home’ scheme. Upon making that request, she
was told that she would not be able to be treated at home because of her past
intravenous drug use and past aggressive behaviour. However, at the time that
the applicant requested to be treated at home, the home visits scheme was closed
to new entrants because of staff shortages.

At first instance,[499] Brewster FM held that there must be a service available to be offered before
that service can be said to have been refused. As the service was closed at the
relevant time, there was no refusal of a service and s 24 did not
apply.[500]

However, on appeal to the Federal
Court,[501] Moore J disagreed with
this approach as taking an unduly narrow reading of
‘refusal’.[502] Nevertheless, Moore J rejected the appeal on the basis that the appellant was
treated no differently to a person without a disability, as the program was
closed to all patients:

The Federal Magistrate’s finding that the home visits program was
closed seems to lead, inevitably, to the conclusion that the appellant was
treated no differently than a person without the disability would have been
treated. Neither would have been provided with the service. It is therefore
unnecessary to consider the construction of a comparator for the purpose of s 5.
The Federal Magistrate was correct in reaching the conclusion that the hospital
did not contravene s 5.[503]

(c) Delay in
providing a service or making a facility available

The issue of
whether discrimination can arise from delay in providing a service or making a
facility available in order to accommodate the needs of a person with a
disability arose for consideration in King v Gosewisch (‘King’).[504] The Burrum Chamber of Commerce held an open meeting for the purpose of
introducing local council candidates to the community. The meeting was held on
the first floor of the local golf club which was inaccessible to two attendees
who used wheelchairs. This gave rise to some heated commotion amongst various
attendees and organisers. However, after a 40 minute delay, but prior to the
meeting commencing, the meeting was transferred to the ground floor. A claim
alleging discrimination in breach of s 24 of the DDA was brought against the
organisers of the meeting by the two attendees who used wheelchairs as well as
one of their associates.

Baumann FM held that there had been no ‘refusal’ to provide a
service or to make the facilities available, as the time at which the service
was provided was the time at which the meeting began, by which time the meeting
had moved downstairs and the applicants were able to
attend.[505]

Similarly, Baumann FM rejected the claim that the respondent had
discriminated against the applicants in relation to the manner and/or terms on
which the services or facilities were provided, such as having to ascend the
stairs to the first floor or wait 40 minutes to attend the meeting on the ground
floor. His Honour noted that the applicants were not required to ascend the
stairs to attend the meeting as the meeting did not commence until it had been
transferred downstairs.[506] In
relation to the delay of 40 minutes, his Honour held that this was reasonable in
the circumstances and treated the applicants no differently to the other
attendees.[507]

(d) Ownership of
facilities not necessary for liability

In King,[508] the
respondents argued that they could not be liable in respect of the
inaccessibility of the meeting on the first floor of the golf clubhouse because
they did not own the premises. Baumann FM rejected this argument, stating:

I find no merit in the argument of the Respondents that they can deny any
responsibility for making available the premises at the Burrum Golf Club simply
because they have no ownership of those facilities. Although it seems they
clearly had the consent of the ‘owner’ or management of the Burrum
Golf Club to hold their gatherings at the Clubhouse, the formal nature of their
right or licence to do so is not the subject of evidence. They were not
trespassers. They exercised some implied licence at least. I am satisfied, for
the purposes of section 24 that the Respondents were making ‘facilities
available
’.[509]

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5.4 Ancillary
Liability

5.4.1 Vicarious
liability

Section 123(2) of the DDA sets out the circumstances
in which a body corporate will be held vicariously liable for particular
conduct, as follows:[510]

Any conduct engaged in on behalf of a body corporate by a director, servant
or agent of the body corporate within the scope of his or her actual or apparent
authority is taken, for the purposes of this Act, to have been engaged in also
by the body corporate unless the body corporate establishes that the body
corporate took reasonable precautions and exercised due diligence to avoid the
conduct.

The meaning of the above section was considered by Raphael FM in Vance v
State Rail Authority
.[511] His
Honour noted that the section was similar in its operation to provisions in the
SDA (s 106), RDA (s 18A) and State legislation, then stated:

Case law in this area emphasises the importance of implementing effective
education programs to limit discriminatory conduct by employees and the
necessity of such programs for employers to avoid being held vicarious liable
for the acts of their employees. Cases such as McKenna v State of
Victoria
(1998) EOC 92-927; Hopper v Mt Isa Mines [1999] 2 Qd R 496; Gray v State of Victoria and Pettiman (1999) EOC 92-996; Evans v Lee
& Anor
[1996] HREOCA 8 indicate that the test to be applied is an
objective one based upon evidence provided by the employer as to the steps it
took to ensure its employees were made aware of what constituted discriminatory
conduct, that it was not condoned and that effective procedures existed for
ensuring that so far as possible it did not
occur.[512]

Raphael FM also cited with approval the decision under the RDA in Korczak
v Commonwealth
,[513] to the
effect that what is required is proactive and preventative steps to be taken.
Perfection is not the requisite level – only
reasonableness.[514] In the
circumstances of the case before him (see 5.2.3(b) above), his Honour found that the
respondent had exercise due care and was not liable under s 123(2) for the
actions of its employee.

In Penhall-Jones v State of
NSW
,[515] Raphael FM held that
the Ministry of Transport was not vicariously liable for the discriminatory act
of one of its employees, which consisted of that employee making a sarcastic
comment to the applicant because of her disability. His Honour held that the
policies of the Ministry of Transport dealing with disability discrimination
‘constituted “reasonable steps” bearing in mind their
comprehensiveness and the action taken in support of them following the
complaint’.[516]

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5.4.2 Permitting
an unlawful act

Section 122 of the DDA provides for liability of
persons involved in unlawful acts otherwise than as the principal discriminator,
as follows:

122 Liability of persons involved in unlawful acts

A person who causes, instructs, induces, aids or permits another person to do
an act that is unlawful under Division 1, 2, or 3 of Part 2 is, for the purposes
of this Act, taken also to have done the act.

In Cooper v Human Rights & Equal Opportunity
Commission
,[517] the applicant
alleged that the Coffs Harbour City Council (‘the Council’) was in
breach of the DDA by virtue of s 122, for having allowed the redevelopment of a
cinema complex without requiring that wheelchair access be incorporated as part
of the redevelopment.

HREOC had previously found that the cinema proprietor had unlawfully
discriminated against the applicant by requiring him to use stairs to gain
access to the cinema.[518] However, in a separate decision in relation to the Council, HREOC held that
there was no liability under s
122.[519] The applicant sought
review of this latter decision under the Administrative Decisions (Judicial
Review) Act 1977
(Cth).

Madgwick J upheld the application and remitted the matter to HREOC for
determination according to
law.[520] The following principles
can be distilled from the decision of Madgwick J.

  • The first step in establishing liability under s 122 is to establish whether
    or not there was an unlawful act of a principal under Division 1, 2 or 3 of Part
    2.[521]
  • To find that a person has permitted a particular act, it is necessary to
    show that they were able to prevent
    it.[522]
  • The high standard of knowledge required to prove liability as an accessory
    in criminal cases is not required: s 122 has been drafted so as to be wider in
    its scope and the DDA was intended to have far-reaching
    consequences.[523]
  • ‘[O]ne person permits another to do an unlawful discriminatory act if
    he or she permits that other to do an act which is in fact
    discriminatory’.[524] It is
    not necessary for an applicant to show that the ‘permittor’ had
    knowledge or belief that there was no defence or exemption (in the
    present case the defence of unjustifiable hardship) available to the
    principal.[525]
  • It will be an exception to s 122 for a ‘permittor’ to show that
    an act was permitted based on an honest and reasonable mistake of
    fact.[526] In the present matter,
    the Council would have avoided liability if it acted on an honest and reasonable
    belief that there was ‘unjustifiable hardship’ such as would
    constitute a defence under the
    DDA.[527]

On remittal
to HREOC, the Council was found to be liable under s 122 for having approved the
redevelopment without wheelchair
access.[528] Commissioner Carter
held:

Prima facie, in permitting the development to proceed without access for
persons with disabilities, the Council was about to act unlawfully and in breach
of the DDA. It could only avoid such a finding on the basis of an honest and
reasonable belief that the operator could properly claim unjustifiable hardship
if account were taken of ‘all relevant circumstances of the particular
case’... In short it had to convert a potentially unlawful situation to
one which could withstand scrutiny.

In this the onus lay on the Council. Its fundamental obligation was to
reasonably inform itself of the relevant facts upon which to found its
belief.[529]

The Commissioner found that the Council had not made sufficient inquiry to
have enabled it to have been reasonably satisfied as to unjustifiable hardship
and was therefore liable under s 122. The Commissioner stated:

To convert a potential finding of unlawfulness to one that it had not acted
unlawfully required much more than its mere acceptance of the content of the
application, the assumptions which it made about the persons involved, the
likely cost of the required access and its impact on the developer’s
financial position. In fact it made no significant or relevant inquiry. The
circumstances of the case required it, if it was to be in a position of avoiding
the serious finding of unlawfulness, to at least engage [the architect who wrote
the development application] in substantial discussions about the project, what
it involved, the costs of it, and the difficulties or otherwise in complying
with the DDA requirements. An investigation by it of ‘all the relevant
circumstances of the case’... would have immediately revealed that the
assumptions upon which it had initially proceeded were wrong or at least subject
to significant doubt. Such a basic inquiry would have alerted the relevant
Council officers that their assumptions made so far were probably not sound.

For there to have been an honest and reasonable basis for a belief that the
operator could itself have avoided unlawfulness on the unjustifiable hardship
ground further inquiry was
essential.[530]

In King v
Gosewisch
[531] the
applicants alleged that the organisers of a public meeting were liable under s
122 for causing, inducing, aiding or permitting certain hostile comments
directed at the applicants in the course of the meeting, which were alleged to
constitute disability harassment. The court rejected the claim that the various
comments amounted to disability harassment on the basis that the comments were
not in relation to the applicants’
disabilities.[532] The court held
that it therefore followed that there could be no liability under s
122.[533] In any event, the court
accepted that the respondents had not caused, induced, aided or permitted the
relevant comments. These comments arose in the context of a heated political
meeting in which the respondents generally handled the matter well and did their
best to enforce proper meeting procedure whilst allowing the public to have
their say.[534]

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5.5 Unjustifiable
Hardship and Other Exemptions

5.5.1 Unjustifiable
hardship

It is a defence to a claim of discrimination in many of
the areas specified in Divisions 1 and 2 of Part 2 of the DDA, that
‘unjustifiable hardship’ would be imposed upon a respondent in order
for them to avoid discriminating against an aggrieved
person.[535] For example, s 15(4)
provides that it will not be unlawful for an employer to discriminate against a
person on the ground of the person’s disability

if taking into account the person’s past training, qualifications and
experience relevant to the particular employment and, if the person is already
employed by the employer, the person’s performance as an employee, and all
other relevant factors that it is reasonable to take into account, the person
because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular
employment; or

(b) would, in order to carry out those requirements, require services or
facilities that are not required by persons without the disability and the
provision of which would impose an unjustifiable hardship on the
employer.[536] (emphasis
added)

‘Unjustifiable hardship’ is defined by s 11 of the DDA as
follows:

For the purposes of this Act, in determining what constitutes unjustifiable
hardship, all relevant circumstances of the particular case are to be taken into
account including:

(a) the nature of the benefit or detriment likely to accrue or be suffered by
any persons concerned; and

(b) the effect of the disability of a person concerned; and

(c) the financial circumstances and the estimated amount of expenditure
required to be made by the person claiming unjustifiable hardship; and

(d) in the case of the provision of services, or the making available of
facilities, an action plan given to the Commission under section 64.

The appropriate approach by a Court to the concept of unjustifiable hardship
is first to determine whether or not the respondent has discriminated against
the complainant and then determine whether or not the respondent is able to make
out the defence of unjustifiable
hardship.[537]

The onus is on the respondent to establish unjustifiable hardship by way of
defence: ‘the essential elements of the principal discriminator’s
liability do not include the negative proposition that there be no unreasonable
hardship to such
discriminator’.[538]

(a) ‘More
than just hardship’

Implicit in the concept of
unjustifiable hardship is that some hardship will be justifiable:

the concept of ‘unjustifiable hardship’ connotes much more than
just hardship on the respondent. The objects of the [DDA] make it clear that
elimination of discrimination as far as possible is the legislation’s
purpose. Considered in that context, it is reasonable to expect that [a
respondent] should have to undergo some
hardship...[539]

In Francey v Hilton Hotels of Australia Pty
Ltd
[540] (‘Francey’) Commissioner Innes held that the financial
circumstances of the respondent should also be viewed from this perspective:

Many respondents imply that [their financial circumstances] should be given
greater weight than other factors. Whilst it is important, it, along with all
other provisions of the [DDA], must be considered in the context of the
[DDA’s] objects. I do not suggest that intolerable financial imposts
should be placed on respondents. However, for this defence to be made out the
hardship borne must be unjustifiable. Therefore, if other factors mitigate in
favour of preventing the discrimination – which is the Parliament’s
intention in this legislation – then the bearing of a financial burden by
the respondent may cause hardship which is deemed
justifiable.[541]

This approach was cited with approval in Access For All Alliance (Hervey
Bay) v Hervey Bay City
Council
[542] (‘Access
For All Alliance
’) in which Baumann FM held:

Whilst I accept the Council has many priorities, and is proactive in
acquiring funding to meet and accommodate the needs of those who live within the
local authority area, I am satisfied even at a cost of $75,250 this Council can
make the necessary adjustments to its budget to remedy the unlawful
discrimination found by me.

His Honour ordered the respondent to undertake the necessary works to prevent
the continued discrimination (see 5.2.3(b) above) within nine months.

(b) ‘Any
persons concerned’

A number of cases have considered s
11(a) which requires consideration be given to ‘the nature of the benefit
or detriment likely to accrue or be suffered by any persons concerned’. It
has been held that the group of ‘any persons concerned’ extends
beyond the immediate complainant and respondent.

In Access For All Alliance, Baumann FM took into account the
‘real and important’ benefits that would flow from an adjustment to
public toilets to make them accessible to people with disabilities. His Honour
took into account not only the benefit to local residents, but also to visitors
to the area.[543]

In Francey, Commissioner Innes considered a complaint brought by a
person with asthma (and her associate) that the respondent’s policy of
allowing people to smoke in their nightclub made it a condition of access to
those premises that patrons be able to tolerate environmental tobacco smoke.
This was a condition with which the complainant could not comply. In finding
that the defence of unjustifiable hardship was not made out, Commissioner Innes
considered the benefits and detriments to the complainants, the respondent,
staff and potential staff, patrons and potential patrons of the
nightclub.[544]

In Cooper v Holiday Coast Cinema Centres Pty
Ltd
,[545] the complaint
concerned the condition that patrons of a cinema access the premises by way of
stairs. This was a condition with which the complainant, who used a wheelchair,
could not comply. Commissioner Keim considered s 11(a) and stated as
follows:

I am of the view that the phrase should be interpreted broadly. I am of the
view that it is appropriate not only to look to the complainants themselves but
also their families and to other persons with disabilities restricting their
mobility who might, in the future, be able to use the respondent’s cinema.
In the same way, in terms of the effect of the order on the respondent, it is
appropriate for me to look at the hardship that might be suffered by the
shareholders of the respondent; its employees; and also its current and
potential customers. The latter groups of people are particularly important in
terms of financial hardship from an order forcing the cinema complex to
close.[546]

In Scott v Telstra Corporation
Ltd
,[547] the issue of
unjustifiable hardship concerned the provision of a tele-typewriter
(‘TTY’) to customers of the respondent who had profound hearing
loss. The respondent argued that it was relevant to consider costs relating to
its potential liability if it was required to provide other products to
facilitate access to its services by people with disabilities. The argument was
rejected by Sir Ronald Wilson:

The respondent has also provided figures on a best and worst case basis of
its potential liability if it has to provide other products as well as TTYs. I
do not consider these figures relevant. The only relevant factors that have to
be considered are those referable to the supply of TTYs and the resultant
revenue to the respondent. It is quite wrong to confuse the issue of
unjustifiable hardship arising from the supply of TTY’s to persons with a
profound hearing loss with possible hardship arising from other potential and
unproved liabilities. It follows that the reliance by the respondent on the cost
of providing products other than the TTY to persons other than persons with a
profound hearing loss to show unjustifiable hardship is an erroneous application
of s 11 of the DDA.[548]

In Williams v
Commonwealth
,[549] (see 5.3.1(d) above), the applicant had been
discharged from the RAAF on the basis of disability, namely, his insulin
dependent diabetes. His discharge followed the introduction of a directive
requiring every member of the RAAF to be able to be deployed to ‘Bare
Base’ settings, which were arduous in nature and lacking in support
facilities. The Commonwealth argued that the applicant was unable to meet these
‘inherent requirements’ by virtue of his diabetes. It also sought to
rely on the defence of unjustifiable hardship. McInnis FM found that even if the
applicant was required to deploy to ‘Bare Base’ facilities, the
accommodation required for his disability (regular meals and backup supplies of
insulin, for example) would not have imposed an unjustifiable hardship on the
Commo[550]alth. 550

(c) Other
factors

It is clear from s 11 that ‘all relevant
circumstances’ are to be taken into account in determining unjustifiable
hardship.

In Access For All Alliance, Baumann FM accepted that the Australian
Standards and the BCA were ‘relevant and persuasive’ in determining
whether or not any hardship faced by the respondent in effecting an alteration
to promises is
‘unjustifiable’.[551] In that case, the application concerned the placement of wash basins outside
public toilets, rendering them inaccessible to people with disabilities which
required them to use the basins as part of their toileting regime (see 5.2.3(b)
and 5.2.3(d) above). Baumann FM found
that this constituted indirect discrimination and that there was no
unjustifiable hardship. His Honour stated:

It is clear that the Australian Standards or BCA do not proscribe the
necessity for internal hand basins. The accessible cubicle conforms with all
such standards. I do not regard the fact that the premises comply with the
standards precludes me from finding either unlawful discrimination or that there
is no ‘unjustifiable
hardship’.[552]

Relevant to his Honour’s conclusion was the potential effect of the
discrimination on people with disabilities who may need to use the toilets, and
the benefits of alterations being made:

The evidence in my view overwhelmingly supports a finding that the benefits
for those persons with a combination of mobility and toileting regime
challenges... are real and important. Without the alterations, many persons may
lose the benefit of this engaging in the foreshore experience and amenity. This,
of course, not only extends to local residents but because of the renown
attractions of this area to tourists, it also extends to visitors to the area
(see Scott v Telstra (1995) EOC 92-117 per Wilson P at 78,401).

It is hard to imagine a more embarrassing or undignified experience than to
be forced to endure a stream of Wet Ones, wash cloths and the like from the
outside running water basin to the privacy of the accessible toilet if one had
an ‘accident’. Those self-catheterising are also entitled to
complete the usual regime with the basic support an internal wash basin would
provide to them.[553]

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5.5.2 Other
exemptions to the DDA

(a) Annuities,
insurance and superannuation

Section 46(1) of the DDA creates an
exemption from the DDA in relation to annuities, insurance and superannuation,
as follows:

(1) This Part does not render it unlawful for a person to discriminate
against another person, on the ground of the other person’s disability, by
refusing to offer the other person:

(a) an annuity; or

(b) a life insurance policy; or

(c) a policy of insurance against accident or any other policy of insurance;
or

(d) membership of a superannuation or provident fund; or

(e) membership of a superannuation or provident scheme;

if:

(f) the discrimination:

(i) is based upon actuarial or statistical data on which it is reasonable
for the first-mentioned person to rely; and

(ii) is reasonable having regard to the matter of the data and other
relevant factors; or

(g) in a case where no such actuarial or statistical data is available and
cannot reasonably be obtained—the discrimination is reasonable having
regard to any other relevant factors.

In Xiros v Fortis Life Assurance
Ltd
,[554] it was not disputed
that the applicant had been discriminated against on the basis of being HIV
positive when his claim was declined under an insurance policy which excluded
‘all claims made on the basis of the condition of HIV/AIDS’.

Driver FM considered the meaning of the term ‘reasonable’ in the
context of
s 46(1)(f)(i). His Honour described as a ‘useful
guide’,[555] the
consideration of ‘reasonableness’ in the context of indirect
discrimination (see 5.2.3(d) above) by
the High Court in Waters v Public Transport
Co[556]ration
556 (‘Waters’) and the Federal Court in Secretary,
Department of Foreign Affairs &
Trade[557]Styles
557 (‘Styles’).

His Honour concluded that ‘all relevant circumstances’, including
statistical data that is available, should be taken into account. In the matter
before him, his Honour held that it was reasonable for the respondent to
maintain its ‘HIV/AIDS exclusion’, based upon the statistical
information and actuarial advice
available.[558]

The same approach to ‘reasonableness’ was taken by Raphael FM in Bassanelli v QBE
Insurance
.[559] In that
matter, the applicant sought travel insurance for an overseas trip. She was
denied the insurance on the basis of her disability, being metastatic breast
cancer. The applicant’s evidence was that she did not expect insurance for
her pre-existing medical condition but rather other potential losses such as
theft, loss of luggage, other accidental injury or injury or illness to her
husband.

The respondent conceded that there was no actuarial or statistical data
relied upon in making the decision to refuse insurance but maintained that their
conduct was ‘reasonable’ and therefore fell within s 46(1) of the
DDA.

While the applicant was able to obtain insurance through another insurer,
Raphael FM noted that

the fact that one insurer may provide cover for a particular risk does not
mean that it is unreasonable for another insurer to decline it. The court must
first look, objectively, at the reasons put forward by the insurer for declining
the risk and consider the evidence brought to justify that decision. The
reasonableness or otherwise of that evidence can be tested against the conduct
of other insurers who are offered the same
risk.[560]

His Honour noted that the onus is on the respondent to establish
‘reasonableness’ in this
context[561] and found that the
decision by the respondent was not reasonable in all of the circumstances of the
case.

His Honour’s decision was upheld on appeal by Mansfield J in QBE
Travel Insurance v
Bassanelli
.[562] Mansfield J
commented that the exemptions in ss 46(1)(f) and 46(1)(g) of the DDA are
‘not simply
alternatives’[563]
only one can apply in any particular case. His Honour stated:

I consider that, on its proper construction, the exemption for which s
46(1)(g) provides is only available if there is no actuarial or statistical data
available to, or reasonably obtainable by, the discriminator upon which the
discriminator may reasonably form a judgment about whether to engage in the
discriminatory conduct. If such data is available, then the exemption provided
by s 46(1)(g) cannot be availed of. The decision made upon the basis of such
data must run the gauntlet of s 46(1)(f)(ii), that is the discriminatory
decision must be reasonable having regard to the matter of the data and other
relevant factors. If the data (and other relevant factors) do not expose the
discriminatory decision as reasonable, then there is no room for the insurer to
move to s 46(1)(g) and thereby to ignore such data. If such data were not
available to the insurer but were reasonably obtainable, so that its
discriminatory decision might have been measured through the prism of s
46(1)(f), again there would be no room for the insurer to invoke the exemption
under s 46(1)(g).

Hence, if the exemption pathway provided by s 46(1)(f) ought to have been
followed by the insurer, whatever the outcome of its application, the exemption
pathway provided by s 46(1)(g) would not also be available. It is only if
there is no actuarial or statistical data available to, or reasonably obtainable
by, the insurer upon which it is reasonable for the insurer to rely, that s
46(1)(g) becomes available. The legislative intention is that the reasonableness
of the discriminatory conduct be determined by reference to such data, if
available or reasonably obtainable, and other relevant factors. That conclusion
is consistent with the Explanatory Memorandum to the Disability Discrimination
Bill 1992 (Cth) concerning the superannuation and insurance
exemption.[564]

In the circumstances of the case, however, the parties conducted the
application at first instance as if the exemption provided under s 46(1)(g) of
the DDA was available to the appellant insurer and Mansfield J was of the view
that Mr Bassanelli was bound by that
conduct.[565]

Nevertheless, Mansfield J upheld the decision of Raphael FM at first
instance, confirming that the onus of proof is on an insurer to qualify for an
exemption under s 46 of the
DDA.[566] He further held that the
assessment of what is ‘reasonable’ is to be determined objectively
in light of all relevant matters, citing the decisions in Waters and Styles.[567]

(b) Defence
force

Section 53(1) of the DDA provides:

(1) This Part does not render it unlawful for a person to discriminate
against another person on the ground of the other person’s disability in
connection with employment, engagement or appointment in the Defence Force:

(a) in a position involving the performance of combat duties, combat-related
duties or peacekeeping service; or

(b) in prescribed circumstances in relation to combat duties, combat-related
duties or peacekeeping service; or

(c) in a position involving the performance of duties as a chaplain or a
medical support person in support of forces engaged or likely to be engaged in
combat duties, combat-related duties or peacekeeping service.

Pursuant to the regulation-making power conferred by s 53(2) and s 132 of the
DDA, ‘combat duties’ and ‘combat-related duties’ were
defined in the Disability Discrimination Regulations 1996 (Cth) (the
‘Regulations’). Regulation 3 defines ‘combat duties’
as:

duties which require, or which are likely to require, a person to commit, or
participate directly in the commission of, an act of violence in the event of
armed conflict.

Regulation 4 defines ‘combat-related duties’ as:

(a) duties which require, or which are likely to require, a person to
undertake training or preparation for, or in connection with, combat duties; or

(b) duties which require, or which are likely to require, a person to work
in support of a person performing combat duties.

In Williams v
Commonwealth
,[568] McInnis FM
at first instance held that this exemption did not apply to the applicant who
had been employed as a Communications Operator with the RAAF for over ten years
and, apart from some training, could not be said to have been involved in combat
duties or combat-related duties. His Honour stated that:

To apply a ‘blanket’ immunity from the application of the DDA
simply on the basis of a general interpretation of combat related duties would
be inconsistent with the day to day reality of the Applicant’s inherent
requirements of his particular employment ... If that were the case then s 53
would only need to say that this part does not render it unlawful for a person
to discriminate against another person who is employed, engaged or appointed in
the Defence Forces. The section clearly contemplates the distinction between
combat and non combat personnel
...[569]

This decision was overturned on appeal by the Full Federal Court in Commonwealth v
Williams
.[570] The Full Court
held that s 53 of the DDA, when read in conjunction with the relevant
definitions in the Regulations, covers duties which are likely to require (as
distinct from actually require) the commission of an act of violence in the
event of armed conflict. The Full Court found that Mr Williams, employed in a
position providing ‘communications and information systems support to
deployed forces’, was clearly performing ‘work in support of’
such forces within the meaning of reg 4(b). Therefore Mr Williams’ alleged
discrimination was not covered by the operation of the DDA due to s
53.[571]

The Full Court noted that this did not mean that all members of the
Australian Defence Force were, for the purposes of matters connected with their
employment, unable to invoke the DDA. The Court stated that s 53 and the
regulations require an element of directness and, accordingly, staff in a
recruiting office or in public relations may not be excluded by the
section.[572]

(c) Compliance
with a prescribed law

Section 47(2) provides that Part 2 of the
DDA, which contains the specific prohibitions against discrimination,
‘does not render unlawful anything done by a person in direct compliance
with a prescribed law’.[573]

Section 47(3) further provides that Part 2 does not render unlawful
‘anything done by a person in direct compliance with another law’
for 3 years from the commencement of the section (1 March 1993).

In McBride v Victoria (No
1)
,[574] McInnis FM considered
issues surrounding the return to work in 1994 of an employee with a disability
which resulted from a workplace injury. The applicant was employed in a prison.
The respondent submitted that some of the conduct complained of was done in
direct compliance with the Corrections Act 1986 (Vic) so it could
therefore not be unlawful by reason of s 47 of the
DDA.[575] While finding that there
was no unlawful discrimination arising out of the allegations relating to the
applicant’s return to work, his Honour indicated, in obiter remarks, that
a narrow interpretation of the expression ‘in direct compliance’ as
it appears in s 47(2) and (3) should be
taken.[576] His Honour stated:

The general nature of the conduct, whilst no doubt complying with the
requirements of the Respondent to properly administer prisons as a public
correctional enterprise and service agency within the Department of Justice of
the State of Victoria, does not of itself provide a sufficient basis which would
enable s 47(3) to apply to this application. I am mindful of the fact that the Corrections Act 1986 and regulations made thereunder place upon the
Governor of the prison duties and obligations which relate to security and
welfare and officers, subject to directions (see ss 19, 20 & 21). However
compliance with that Statute as indeed the Respondent is required to comply with
the Accident Compensation Act 1985 does not of itself constitute direct
compliance with a law which would otherwise attract the operation of s 47(2) and
(3). To do so would be to ignore the reality of the general nature of the
allegations in this matter though of course if part of the response in the
matter includes compliance with the law then that would be relevant but not
determinative of the merits of the application. Where part of the conduct of a
Respondent may be said to be compliance with the law but forms only part of the
overall conduct then it would be inappropriate to then excuse all of the conduct
of the Respondent in a claim for unlawful
discrimination.[577]

On this view, it is not sufficient for a respondent to show that it was
acting generally in pursuance of its statutory authority.

(d) Special
measures

Section 45 of the DDA provides an exemption in
relation to ‘special measures’, as follows:

45 Special measures

This Part does not render it unlawful to do an act that is reasonably
intended to:

(a) ensure that persons who have a disability have equal opportunities with
other persons in circumstances in relation to which a provision is made by this
Act; or

(b) afford persons who have a disability or a particular disability, goods or
access to facilities, services or opportunities to meet their special needs in
relation to:

(i) employment, education, accommodation, clubs or sport; and

(ii) the provision of goods, services, facilities or land; or

(iii) the making available of facilities; or

(iv) the administration of Commonwealth laws and programs; or

(v) their capacity to live independently; or

(c) afford persons who have a disability or a particular disability, grants,
benefits or programs, whether direct or indirect, to meet their special needs in
relation to:

(i) employment, education, accommodation, clubs or sport; or

(ii) the provision of goods, services, facilities or land; or

(iii) the making available of facilities; or

(iv) the administration of Commonwealth laws and programs; or

(v) their capacity to live independently.

In Clarke v Catholic Education
Office
[578] the primary judge
hadfound that the ‘model of learning support’ put
forward by a school as part of the terms and conditions upon which an offer of
admission was made to a deaf student indirectly discriminated against the
student on the ground of his disability (see 5.2.3(b) above). Before the Full
Federa[579]ourt,579 the appellant
challenged this finding, arguing that its acts were reasonably intended to
afford the student, as a person with a particular disability, access to services
to meet his special needs in relation to education. The Court viewed this
submission as seeking to rely on [580]5(b).580

The Court stated that two points should be made about s 45. First, the
section ‘should receive an interpretation consistent with the objectives
of the legislation’.[581] The Court noted, in this regard, Finkelstein J’s observation in Richardson v ACT Health & Community Care
Service
[582] that ‘an
expansive interpretation of an exemption in anti-discrimination legislation may
well threaten the underlying object of the legislation’. Secondly, s 45
‘refers to an act that is “reasonably intended” to achieve
certain objects’. The Court agreed with the observation of Kenny JA in Colyer v Victoria[583] that
s 45 ‘incorporates an objective criterion, which requires the Court to
assess the suitability of the measure taken to achieve the specified
objectives’.[584]

In rejecting the appellants’ submission, the Court said that the
‘act’ rendered unlawful by the DDA was not the offer of a
‘model of support’ which provided benefits to the student, but
rather the appellants’ offer of a place subject to a term or condition
that the student participate in and receive classroom instruction without an
interpreter. This could not be said to be ‘reasonably intended’ to
meet the student’s special needs for the purposes of s
45.[585]

In any event, the test of whether or not something is ‘reasonably
intended’ to achieve the purposes set out in s 45 is an objective one.
Sackville and Stone JJ concluded:

[The primary judge] found that any adult should have known that the
withdrawal of Auslan support would cause Jacob distress, confusion and
frustration and that, in the absence of an Auslan interpreter, Jacob would not
have received an effective education. Whatever the subjective intentions of the
appellants’ officers, it could not be said that the particular act
otherwise rendered unlawful satisfied the objective standard incorporated into s
45.[586]

See also the discussion of special measures under the RDA at 3.3.1 above and
under the SDA at 4.4 above.

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5.6 Victimisation

Section
42 of the DDA prohibits victimisation, as follows:

42 Victimisation

(1) It is an offence for a person to commit an act of victimisation against
another person.

Penalty: Imprisonment for 6 months.

(2) For the purposes of subsection (1), a person is taken to commit an act of
victimisation against another person if the first-mentioned person subjects, or
threatens to subject, the other person to any detriment on the ground that the
other person:

(a) has made, or proposes to make, a complaint under this Act or the Human
Rights and Equal Opportunity Commission Act 1986
; or

(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any
person; or

(c) has given, or proposes to give, any information, or has produced, or
proposes to produce, any documents to a person exercising or performing any
power or function under this Act or the Human Rights and Equal Opportunity
Commission Act 1986
; or

(d) has attended, or proposes to attend, a conference held under this Act or
the Human Rights and Equal Opportunity Commission Act 1986; or

(e) has appeared, or proposes to appear, as a witness in a proceeding under
this Act or the Human Rights and Equal Opportunity Commission Act 1986;
or

(f) has reasonably asserted, or proposes to assert, any rights of the person
or the rights of any other person under this Act or the Human Rights and
Equal Opportunity Commission Act 1986
; or

(g) has made an allegation that a person has done an act that is unlawful by
reason of a provision of this Part;

or on the ground that the first-mentioned person believes that the other
person has done, or proposes to do, an act or thing referred to in any of
paragraphs (a) to (g) (inclusive).

An aggrieved person may bring a civil action for a breach of s 42,
notwithstanding that it also may give rise to a separate criminal
prosecution.[587] This is because
the definition of ‘unlawful discrimination’ in s 3 of the HREOC Act
specifically includes conduct that is an offence under Division 4 of Part 2 of
the DDA (which includes s 42). As discussed in Chapter 6, the jurisdiction of
the Federal Court and FMC in respect of discrimination matters is conferred by s
46PO of the HREOC Act, which requires that the proceedings must relate to a
complaint alleging ‘unlawful discrimination’ (as defined in s 3)
which has been terminated by the President of HREOC.

The two main issues that have arisen in relation to s 42 include the
following:

(a) the test for causation as to whether certain conduct is ‘on the
ground that’ the aggrieved person has done or proposes to do one of the
matters contained in s 42(2)(a)-(g); and

(b) the meaning of the phrase ‘threatens to subject... to any
detriment’ in s 42(2).

(a) Test for
causation

Pursuant to s 10 of the DDA, if an act is done for two
or more reason, and one of those reasons is the aggrieved person’s
disability, then for the purposes of the DDA the act is taken to be done for
that reason even if the person’s disability is not the dominant or a
substantial reason.

However, in Penhall-Jones v New South Wales (‘Penhall-Jones’),[588] Buchanan J held that, when considering whether certain alleged acts of
victimisation were done ‘on the ground that’ the aggrieved person
had done or proposed to do one of the matters listed in s 42(2)(a)-(g), s 10 has
no application:

Section 10 does not address the assessment of grounds or reasons which form
part of an act of victimization, but only acts of discrimination in an earlier
part of the Act in which s 10 appears. Section 10, therefore, does not
establish, in favour of Ms Penhall-Jones’ case, any proposition that
existence of one of the conditions for the engagement of s 42 might be an
insubstantial reason.[589]

After reviewing a number of
authorities,[590] Buchanan J
concluded that the appropriate test for causation in relation to s 42 was as
follows:

Accordingly the authorities are unified in their approach that the ground or
reason relied upon to establish a breach of the relevant legal obligation need
not be the sole factor but it must be a substantial and operative factor.
At least one circumstance from the list in s 42(2) of the Act must be a reason
for the alleged detriment or threatened detriment. It must afford a rational
explanation, at least in part, ‘why’ an action was taken. The
connection cannot be made by a mere temporal conjunction of events, by an
incidental but non-causal relationship or by speculation. The establishment of
the suggested ground is as much a matter for proper proof as any other factual
circumstance.[591] (emphasis
added)

(b) Threatens to
subject to any detriment

The meaning of the phrase
‘threatens to subject the other person to any detriment’ for the
purposes of s 42(2) also arose for consideration in Penhall-Jones. The
applicant alleged that she had been victimised by her employer, the NSW Ministry
of Transport (‘the Ministry’), in response to her complaint of
discrimination to HREOC. Specifically, she pointed to the following conduct
alleged to constitute victimisation:

  • being ‘verbally abused’ by her supervisor after she failed to
    attend a scheduled meeting;
  • a ‘programme of bullying’ by her supervisor;
  • proposals made by the Ministry during a HREOC conciliation conference that
    she discontinue her claim and resign from her employment in return for a sum of
    money; and
  • a letter from the Acting Director-General of the Ministry, Mr Duffy,
    indicating that a continuation of her conduct of making false and vexatious
    complaints against the Ministry might lead to the termination of her employment
    on the basis that such conduct was contrary to the duties of fidelity, trust and
    good faith owed by an employee to an employer.

At first
instance,[592] in relation to the
first claim, Driver FM held that verbal abuse in the workplace, particularly by
a supervisor, can be a ‘detriment’ for the purposes of s 42 of the
DDA.[593] However, his Honour held
that the supervisor’s conduct was not linked to the applicant’s
HREOC complaint.[594]

In relation to the second claim, Driver FM held that, when viewed in the
context of the prior animosity between the applicant and her supervisor, her
supervisor’s attitude and behaviour towards the applicant was not
victimisation but arose out of her ‘growing dislike’ for the
applicant.[595]

Driver FM dismissed the applicant’s third claim as
‘ridiculous’,[596] stating:

It was reasonable for the respondent to seek to limit its liability to Ms
Penhall-Jones by securing the cessation of her employment in return for adequate
compensation. Ms Penhall-Jones did not regard the monetary offer as
adequate but she did not have to accept it. The HREOC conciliation process is
non binding and no one is forced to agree to anything. The attempt by
Ms Penhall-Jones to use the private conciliation conference to support her
claim of victimisation is most unfortunate. If such a tactic were to become
common it would imperil the conciliation role of HREOC as respondents would be
reluctant to participate in conciliation for fear of the process then being used
against them.[597]

Driver FM also dismissed the applicant’s fourth claim, in relation to
the letter from Mr Duffy, stating:

the threat, in my view, falls short of victimisation. That is because the
threat was a consequence not of the fact of the complaint of unlawful
discrimination made by Ms Penhall-Jones, or her participation in the
conciliation conference on 28 September 2004. Rather, the threat was a
consequence of the intemperate and continuing allegations by Ms Penhall-Jones
which Mr Duffy, on advice, genuinely viewed as unfounded, false and vexatious,
to the extent of probably constituting a breach of the duty of trust and
confidence necessary to the continuation of the employment
relationship.[598]

The above findings of Driver FM were upheld on
appeal.[599] In relation to the
fourth claim, Buchanan J even expressed doubt as to whether the relevant letter
from Mr Duffy amounted to a ‘threat’ within the meaning of s
42(2):

I find it hard to see the letter as a ‘threat’ notwithstanding
the view expressed by the Federal Magistrate. Some indication of the seriousness
with which Ms Penhall-Jones’ accusations were viewed and, in particular,
that they were regarded as inappropriate was not only natural but necessary if,
in response to a continuation of allegations of that kind, the [respondent]
wished to take action as a result. ... A failure to indicate the seriousness
with which the allegations were viewed would require explanation if disciplinary
action followed. A lack of candour and a failure to provide an unvarnished
statement of the implications for Ms Penhall-Jones’ employment would not
be justified simply by a desire to avoid what might later be construed as
threatening behaviour. All warnings, which are often an integral and necessary
part of fair treatment and proper notice, contain an element of explicit or
implicit menace by their very
nature.[600]

The meaning of ‘threatens to subject ... to any detriment’ was
also considered by Baumann FM in Damiano v
Wilkinson
.[601] The applicants
alleged that, after lodging a claim of disability discrimination on behalf of
their son with HREOC, the principal of the school victimised them
by:[602]

  • failing to return three phone calls made by the parents;
  • shouting at the parents during a phone conversation, including shouting that
    he would speak to the mother ‘only when he was ready to do so’;
    and
  • making statements to the local paper that:
    • the complaint was ‘trivial, vexatious, misleading or lacking
      in substance’;
    • the matter had been taken ‘to the highest authority and thrown
      out’; and
    • the school ‘is currently investigating what legal recourse we
      have in terms of taking action against people who are guilty of these sorts of
      complaints, because there is a high degree of harassment we want
      investigated’.

In relation to the meaning of
‘detriment’, his Honour held that, whilst the term is not defined in
the DDA, it involves placing a complainant ‘under a disadvantage as a
matter of substance’,[603] or results in a complainant suffering ‘a material difference in
treatment’[604] which is
‘real and not
trivial’.[605]

Baumann FM upheld the application for summary dismissal by the respondent on
the basis that the allegations in relation to the phone calls were
‘trivial’ and lacking in
particularity.[606] The claims
relating to the comments made to the newspaper were also rejected as either
accurate, understandable or not constituting a
threat.[607]

In Drury v Andreco Hurll Refractory Services Pty Ltd (No
4)
,[608] the respondent was
found to have made a decision not to re-employ the applicant because of his
previous complaint to HREOC and subsequent proceedings in the Federal Court and
because he had threatened in correspondence to repeat that action were he not
given employment. Raphael FM stated:

I can understand that the company might have been disturbed by [the
applicant’s] correspondence with them. But that correspondence when read
in context and as a whole is no more than a firm assertion of [the
applicant’s] rights. The Act does not excuse the respondent to a
victimisation claim because the proposal to make a complaint to HREOC is couched
in intemperate words. In this particular case, and again reading the
correspondence as a whole, I do not think that it could be so described.
Certainly [the applicant] says that if he is not offered work he will take the
matter up again with HREOC and certainly he suggests he will be calling
witnesses and requiring documents to be produced, but he also says that he
doesn’t want to go to court and he wants to settle the matter by getting
back his job and by using the money earned from that job to repay the company
the costs he owes them for the previously aborted proceedings before Driver
FM.[609]

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[1] See s 7 which extends the
definition of discrimination to include less favourable treatment because of the
fact that a person is accompanied by, or possesses a palliative or therapeutic
device or an auxiliary aid. Note that ‘disability discrimination’ is
defined in s 4 as having ‘the meaning given by sections 5 to 9
(inclusive)’.
[2] See s 8
which extends the definition of discrimination to include less favourable
treatment because of the fact that a person is accompanied by an interpreter,
reader, assistant or carer who provides interpretive, reading or other services
to that person.
[3] Section
9.
[4] Section
4.
[5] Section
5.
[6] Section
6.
[7] Section
15.
[8] Section
22.
[9] Section
23.
[10] Section
24.
[11] Section
25.
[12] Section
26.
[13] Section
29.
[14] Sections 35 and
36.
[15] Sections 37 and 38. Note
that harassment in education is in the context of harassment by a member of
staff of a student or prospective student. See also 5.2.5(b) below in relation to the Education
Standards.
[16] Sections 39 and
40.
[17] See Part II, Division
5.
[18] Section 55. HREOC has
developed criteria and procedures to guide the Commission in exercising its
discretion under s 55 of the DDA. HREOC’s guidelines and further
information about the temporary exemptions granted by HREOC are available at:
<http://www.humanrights.gov.au/disability_rights/exemptions/exemptions.h…;.
[19] Section 41.
[20] Section
42(1).
[21] Section 42(2). Note
that the offence also occurs if a person is subjected to a detriment on the
ground that the ‘victimiser’ believes that the person has done, or
proposes to do, any of the things listed. See further 5.6 below.
[22] Section
43.
[23] Section
44.
[24] Section
107.
[25] Second reading speech,
Disability Discrimination Bill 1992, House of Representatives Hansard, 26 May
1992, p 2750.
[26] Unreported,
HREOC, Commissioner Carter QC, 12 April 1999 (extract at (1999) EOC 92-985). See
also Maguire v Sydney Organising Committee for the Olympic Games (Unreported, HREOC, Commissioner Carter QC, 18 November 1999) (extract at (2000)
EOC 93-041).
[27] Unreported,
HREOC, Commissioner Carter QC, 12 April 1999 (extract at (1999) EOC
92-985).
[28] [2000] FCA
1870.
[29] (1990) 169 CLR
594.
[30] [2000] FCA 1870,
[14]-[15].
[31] [2002] FMCA
210.
[32] [2002] FMCA 210,
[7].
[33] [2002] FMCA 210,
[97].
[34] (2002) 120 FCR
584.
[35] (2002) 120 FCR 584, 592
[31].
[36] [2004] FMCA
240.
[37] Opened for signature 30
March 2007, 993 UNTS 3 (entered into force 3 May 2008).
[38] [2000] FCA
1688.
[39] Presumably the same
principle concerning retrospective application would apply in the case of the
RDA, SDA and ADA.
[40] (2007) 209
FLR 187.
[41] The Court adopted
the submissions of the Acting Disability Discrimination Commissioner, appearing
as amicus curiae, on this point. The submissions are available at
<http://www.humanrights.gov.au/legal/submissions_court/amicus/anthony_cl…;.
[42][2008] FCAFC 69. HREOC was granted leave to appear as
intervener in the appeal and its submissions are available at <http://www.humanrights.gov.au/legal/submissions_court/intervention/qantas_v_gama.html>
and
<http://www.humanrights.gov.au/legal/submissions_court/intervention/gama…;.
[43]Gama v Qantas Airways Ltd (No 2) [2006] FMCA
1767.
[44] [2008] FCAFC 69,
[91]-[92] (French and Jacobson JJ, with whom Branson J generally agreed,
[122]).
[45] [2008] FCAFC 69,
[93]-[99] (French and Jacobson JJ), [121] (Branson
J).
[46] (2003) 217 CLR
92.
[47] Kirby and McHugh JJ at
117 [68-70] and Gummow, Hayne and Heydon JJ at 157 [210] also considered that
the student’s disability could fall within paragraphs (a) and
(e).
[48]Purvis v New South
Wales (Department of Education & Training)
(2002) 117 FCR 237, 248
[28].
[49] (2003) 217 CLR 92, 175
[272].
[50] (2003) 217 CLR 92,
119 [80]. Their Honours also approved the earlier decision in Randell v
Consolidated Bearing Company (SA) Pty Ltd
[2002] FMCA 44 where Raphael FM
had adopted a similar approach to the definition of disability. See also 100-101
[11] (Gleeson CJ).
[51] (2003)
217 CLR 92, 157 [210].
[52] (2003) 217 CLR 92, 157
[211].
[53] (2003) 217 CLR 92,
157 [212].
[54] [2005] FMCA
1473.
[55] [2005] FMCA 1473,
[52].
[56] [2005] FMCA 1473,
[61]. See also [46].
[57] See ss
15-29. Note that it is also unlawful to discriminate on the ground of a
disability of any of a person’s
associates.
[58] (1991) 173 CLR
349.
[59] (1991) 173 CLR 349,
359, McHugh J agreeing, 382. Cited with approval for the purposes of the DDA in Travers v New South Wales (2001) 163 FLR 99, 114-115
[65].
[60](2003) 217 CLR
92.
[61] (2003) 217 CLR 92,
142-143 [160].
[62] See, for
example, Forbes v Australian Federal Police (Commonwealth) [2004]
FCAFC 95, [69]; Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664,
[112].
[63] (2003) 217 CLR 92,
163 [236]. See also 101-102 [13]–[14] (Gleeson
CJ).
[64] (2003) 217 CLR 92,
143-144 [166].
[65] (2003) 217
CLR 92, 101-102 [13], footnotes omitted. The majority of the Court (Gummow,
Hayne and Heydon JJ with whom Callinan J agreed) decided the issue on the basis
of the ‘comparator’ issue: see 5.2.2(b) below. See also Tyler v Kesser Torah
College
[2006] FMCA 1.
[66] [2004] FCAFC 95.
[67]Forbes v
Commonwealth
[2003] FMCA
140.
[68] [2003] FMCA 140,
[28].
[69] [2004] FCAFC 95,
[68]-[70]. See also [76].
[70] [2004] FCAFC 95, [71]-[73].
[71] [2006] FMCA 5.
[72] [2006] FMCA
5, [159].
[73] (2006) 200 FLR
438.
[74] (2006) 200 FLR 438, 476
[170].
[75] [2005] FMCA
664.
[76] [2005] FMCA 664,
[112]-[113].
[77] [2005] FMCA
664, [120].
[78]New South
Wales (Department of Education & Training) v Human Rights & Equal
Opportunity Commission
(2001) 186 ALR 69, 77
[35].
[79] [2000] FCA
1582.
[80] [2000] FCA 1582, [67].
As can be seen from this statement, his Honour’s reasoning was also
related to the issue of the relevant ‘comparator’ for the purposes
of determining ‘less favourable treatment’, see further 5.2.2(b). See also earlier decisions of HREOC in H
v S
[1997] HREOCA 41; White v Crown Ltd [1997] HREOCA 43; R v
Nunawading Tennis Club
[1997] HREOCA 60. Cf X v McHugh, (Auditor-General
for the State of Tasmania)
(1994) 56 IR
248.
[81] [2004] FCAFC 95,
[71]-[73], [76].
[82] [2006] 200
FLR 438, 476 [168].
[83] [2006]
200 FLR 438, 476 [168].
[84] (1992) EOC 92-421. Note that this case is also cited as Sullivan v Department
of Defence
.
[85] (1992) EOC
92-421, 79,005.
[86] (1997) 191
CLR 1, 33 (Toohey J), 67 (Kirby J). See also Human Rights & Equal
Opportunity Commission
v Mt Isa Mines Ltd (1993) 46 FCR 301, 327
(Lockhart J); Commonwealth v Human Rights & Equal Opportunity
Commission
(1993) 46 FCR 191, 209 (Wilcox J). Cf Boehringer Ingelheim Pty
Ltd v Reddrop
[1984] 2 NSWLR
13.
[87] See, for example, Commonwealth v Humphries (1998) 86 FCR 324, 333; Garity v Commonwealth
Bank
of Australia (1999) EOC
92-966.
[88] (2000) EOC
93-117.
[89]New South Wales
(Department of Education & Training) v Human Rights & Equal Opportunity
Commission
(2001) 186 ALR
69.
[90]Purvis v New South
Wales (Department of Education & Training)
(2002) 117 FCR
237.
[91] (2002) 117 FCR 237, 248
[29], 249 [32].
[92](2003) 217 CLR 92, 100-101
[11].
[93] (2003) 217 CLR 92,
160-161 [223]-[225]. Callinan J agreed with their Honours’ reasoning on
this issue (see 175 [273]).
[94] (2003) 217 CLR 92, 131
[119].
[95] (2003) 217 CLR 92,
134 [128].
[96] (2003) 133 FCR
254.
[97] (2003) 133 FCR 254, 259
[8].
[98] [2002] FMCA
44.
[99] [2002] FMCA 44,
[48].
[100] [2002] FMCA
60.
[101]New South Wales
(Department of Education & Training) v Human Rights & Equal Opportunity
Commission
(2001) 186 ALR
69.
[102] [2002] FMCA 60,
[197].
[103] [2002] FMCA 60,
[199]-[242]. His Honour stated that in some circumstances he was unable to
conclude the treatment was ‘because of the aggrieved person's
disability’ (see
[242]).
[104] [2004] FCAFC 95,
[80]-[81].
[105] [2004] FCAFC
95, [76].
[106] [2004] FCA
485.
[107] [2004] FCA 485,
[86].
[108] [2004] FCA 485,
[89]. His Honour also held that the applicant must fail because the termination
was not because of the applicant’s disability, because of his
refusal to allow the report of the specialist to be released to his employer:
[92]-[93].
[109] [2005] FMCA
2.
[110] [2005] FMCA 2,
[145].
[111] [2005] FMCA 2,
[151]-[151].
[112] [2005] FMCA
2, [169]-[170].
[113] [2005]
FMCA 664.
[114] [2005] FMCA
664, [100].
[115] [2005] FMCA
664, [102]-[106].
[116] [2005]
FMCA 664, [110].
[117] [2005]
FMCA 664, [110].
[118] [2005]
FMCA 664, [111].
[119] [2005]
FMCA 664, [119].
[120] [2006]
FMCA 5.
[121] [2006] FMCA 5,
[140].
[122] [2006] FMCA 5,
[150].
[123] [2006] FMCA
876.
[124] [2006] FMCA 876,
[28].
[125] [2006] FMCA
1670.
[126] [2006] FMCA 1670,
[8].
[127] [2006] FMCA 1670,
[9].
[128] [2008] FCA
603.
[129] [2008] FCA 603,
[57].
[130]Sterling
Commerce (Australia) Pty Ltd v Iliff
[2008] FCA
702.
[131] [2008] FCA 702,
[48].
[132]Iliff v Sterling
Commerce (Australia) Pty Ltd
[2007] FMCA
1960.
[133] [2008] FCA 702,
[49].
[134] [2007] FMCA 1960,
[125] and [146].
[135] [2008]
FCA 985.
[136] [2008] FCA 985,
[69].
[137] [2008] FCA 985,
[72].
[138] [2008] FMCA
996.
[139] Ibid
[87].
[140] Ibid [93]-[94],
[116].
[141] Ibid
[105].
[142] [2008] FMCA 996
[73].
[143] Ibid
[115].
[144] Ibid.
[145] Ibid
[117].
[146] (1998) EOC
92-948.
[147] (1998) EOC
92-948, 78,313.
[148] (1998) 86
FCR 324.
[149] (1998) 86 FCR
324, 335.
[150] (2003) 217 CLR
92, 159 [217]-[218]. Note that at first instance, Emmett J formed a view that
‘accommodation’ and ‘services’ should be understood by
reference to the inclusive definitions of those terms in s 4 of the DDA. For
example, ‘accommodation’ under that definition ‘includes
residential or business accommodation’. His Honour concluded that the case
before him did not have anything to do with ‘accommodation’ or
‘services’ in the sense defined and hence s 5(2) had no relevant
application to the case: New South Wales (Department of Education &
Training) v Human Rights & Equal Opportunity Commission
(2001) 186 ALR
69, 79 [48]. This point was not considered on appeal by the Full Federal Court.
However the approach of Emmett J was rejected by McHugh and Kirby JJ ((2003) 217
CLR 92, 121-122 [86]-[89]) and also appears to have been implicitly rejected by
Gummow, Hayne and Heydon JJ in their joint judgment, 159 [217]-[218]). Such an
argument was earlier rejected by Kiefel J in Commonwealth v Humphries (1998) 86 FCR 324.
[151] (2003)
217 CLR 92, 175 [273].
[152] (2003) 217 CLR 92, 127
[104].
[153] (2003) 217 CLR 92,
127 [104]. In its Review of the Disability Discrimination Act 1992 (2004), the Productivity Commission noted the confirmation in Purvis that
the DDA does not contain any explicit obligation of ‘accommodation’.
It subsequently recommended that the DDA should be amended to ‘include a
general duty to make reasonable adjustments’ (excluding adjustments that
would cause unjustifiable hardship): 185-196, recommendation
8.1.
[154] [2004] FCAFC 95,
[85].
[155] [2004] FCAFC 95,
[85].
[156] [2004] FCA 485,
[77]. His Honour also discussed, in obiter comments, whether or not there was,
for the purposes of indirect discrimination under s 6 of the DDA, a
‘requirement’ that the applicant perform his duties (such as reading
medical reports) without aids. Heerey J stated that the mere non-response to the
appellant’s requests for aids could not be characterised as a
‘requirement or condition’ within the meaning of s 6: ‘That
provision is concerned with some positive criterion or test or qualification or
activity with which the disabled person is called on to comply’ ([81]).
See, however, Waters v Public Transport Corporation (1991) 173 CLR 349,
393 (Dawson and Toohey JJ), 406-407 (McHugh J).
[157] [2006] FMCA
1.
[158] [2006] FMCA 1,
[104].
[159] The Education
Standards took effect on 15 August
2005.
[160] (1991) 173 CLR
349.
[161] (1989) 168 CLR 165,
184, 171.
[162] (1991) 173 CLR
349, 393.
[163] [2002] FMCA
60.
[164] (1996) 68 FCR
46.
[165] [2002] FMCA 60,
[173].
[166] [2002] FMCA 60,
[245].
[167] (2001) 186 ALR
69.
[168] [2000] FCA 1582,
[69].
[169] [2002] FMCA 60,
[245].
[170] [2004] FMCA
721.
[171] [2004] FMCA 721,
[19].
[172] (2003) 217 CLR
92.
[173] See generally 5.2.2(c) above.
[174] (2003) 217 CLR 92,
127 [105].
[175]Waters v
Public Transport Corporation
(1991) 173 CLR 349, 393 (Dawson and Toohey JJ),
406-407 (McHugh J); Catholic Education Office v Clarke (2004) 138 FCR
121, 143 [103]; Daghlian v Australian Postal Corporation [2003] FCA 759,
[110]; Hinchliffe v University of Sydney (2004) 186 FLR 376, 395 [107]; Trindall v NSW Commissioner of Police [2005] FMCA 2,
[175].
[176]Waters (1991) 173 CLR 349, 393.
[177] [2005] FMCA 954.
[178] [2005]
FMCA 954, [30].
[179] [2005]
FMCA 954, [32], [35].
[180] [2005] FMCA 954, [33].
[181] (2004) 138 FCR 121, 125
[12]-[13].
[182] [2005] FMCA
954, [34].
[183] (1991) 173 CLR
349, 361 (Mason CJ and Gaudron J, with whom Deane J agreed), see also 394
(Dawson and Toohey JJ), 407 (McHugh
J).
[184] (2003) 202 ALR
340.
[185] (2003) 202 ALR 340,
351 [44].
[186] (2003) 202 ALR
340, 351 [45]. Cf Gluyas v Commonwealth [2004] FMCA 224. In that matter,
the applicant, who had Asperger’s Syndrome complained that a requirement
that he perform ‘ad hoc tasks of a non-priority nature’ was a
requirement or condition of his employment with which he could not comply by
reason of his disability. Without reference to authority on the issue, Phipps FM
stated: ‘It is impossible to see how the requirement to comply with a
requirement or condition could be established from the way the applicant has put
his case’ ([19]). The application was summarily
dismissed.
[187] (2003) 202 ALR
340, 351 [45].
[188] (2004) 138
FCR 121.
[189] (2002) 123 FCR
561.
[190] (2002) 123 FCR 561,
577 [56]. See also Fetherston v Peninsula Health [2004] FCA 485, [81]; Hinchliffe v University of Sydney (2004) 186 FLR 376, 473
[105]-[106].
[191] (1991) 173
CLR 349.
[192] (1991) 173 CLR
349, 360.
[193] (1991) 173 CLR
349, 407.
[194] [2004] FMCA
915.
[195] [2004] FMCA 915,
[20].
[196] [2004] FMCA 915,
[21].
[197] [2004] FMCA 915,
[22].
[198] [2004] FMCA
240.
[199] [2004] FMCA 240,
[2].
[200] [2004] FMCA 240,
[45], [47].
[201] [2004] FMCA
240, [54].
[202] [2004] FMCA
240, [61]. His Honour did, however, find liability for negligence under the
Court’s accrued jurisdiction, applying the different test for vicarious
liability at common law ([64]). He awarded compensation of $5,000
([71]).
[203] Note that the
provisions of the SDA and the DDA were previously in the same terms in relation
to indirect discrimination. However, the SDA was amended to insert the current s
5(2) by the Sex Discrimination Amendment Act 1995 (Cth). See 4.3 for
further discussion of the amended
provisions.
[204] (1987) 168
CLR 165, 178 (Deane and Gaudron
JJ).
[205] (1987) 168 CLR 165,
187.
[206] (1987) 168 CLR 165,
177-178 (Deane and Gaudron JJ), 187 (Dawson J). See also Commonwealth Bank of
Australia v Human Rights & Equal Opportunity Commission
(1997) 150 ALR
1, 40-43 (Sackville J); Secretary, Department of Foreign Affairs & Trade
v Styles
(1989) 23 FCR 251, 259-263 (Bowen CJ and Gummow
J).
[207] [2003] FCA
759.
[208] [2003] FCA 759,
[110]. Note, however, that the onus is on an applicant to make out indirect
discrimination.
[209][2002] FMCA 60,
[250]-[253].
[210] [2002] FMCA
60, [253].
[211]New South
Wales (Department of Education & Training) v Human Rights & Equal
Opportunity Commission
(2001) 186 ALR
69.
[212] [2002] FMCA 60,
[253]-[254].
[213] See 5.2.2(b) above.
[214] [2002] FMCA 60,
[254].
[215] (2007) 161 FCR 152
(reversed on appeal: Queensland (Queensland Health) v Forest [2008] FCAFC
96).
[216] (2007) 161 FCR 152,
170 [69] above.
[217]Queensland (Queensland Health) v Forest [2008] FCAFC
96.
[218] [2008] FCAFC 96, [7].
See also [121] (Spender and Emmett
JJ).
[219] [2008] FCAFC 96,
[9].
[220] [2008] FCAFC 96,
[122].
[221] [2008] FMCA 832,
[69].
[222] [2008] FMCA 832,
[69].
[223] See 5.2.3(b).
[224] (2003) 202 ALR 340, 352
[46]-[48].
[225] (2004) 138 FCR
121, 145 [113].
[226] [2005]
FMCA 2, [173].
[227] See 5.2.2(b).
[228] [2005] FMCA 2, [178].
[229] [2007] FMCA 931.
[230] [2007]
FMCA 931, [84]-[94].
[231] [2007] FMCA 931, [84].
[232] [2007] FMCA 931, [87].
[233] [2007] FMCA 931, [86].
[234] Approving Jordan v North Coast Area Health Service (No 2) [2005] NSWADT
258.
[235] See s 7B of the SDA.
[236] See discussion of
‘reasonableness’ under the SDA at 4.3.3
above.
[237] See s 7C of the
SDA.
[238]Waters v Public
Transport Corporation
(1991) 173 CLR 349,
378-380.
[239] Earlier
decisions of HREOC had also held that evidence adduced by a respondent in
relation to financial hardship should not be considered relevant to determining
the reasonableness or otherwise of a requirement or condition as such factors
should be considered in the context of the defence of ‘unjustifiable
hardship’: see, for example, Scott v Telstra Corporation Ltd (1995)
EOC 92-917, 78,400; Francey v Hilton Hotels of Australia Pty Ltd (1997)
EOC 92-903, 77,450-51.
[240] (1991) 173 CLR 349, 365 (Mason CJ and Gaudron J), 383 (Deane J), 396-397 (Dawson
and Toohey JJ), 408-411 (McHugh J).
[241] (1991) 173 CLR 349,
410.
[242] (1991) 173
CLR 349, 411.
[243] See, for
example, Sluggett v Human Rights & Equal Opportunity Commission (2002) 123 FCR 561, 574
[46].
[244] (2004) 138 FCR
121.
[245] (2004) 138 FCR 121,
145-146 [115] (Sackville and Stone JJ, with whom Tamberlin J agreed).
[246] See further 5.2.5(b) (Education Standards)
below.
[247] [2005] FCA 405.
For a discussion of the decision of Lander J, see Ben Fogarty, ‘The
Silence is Deafening: Access to education for deaf children’, (2005) 43(5) Law Society Journal 78-81.
[248] Signed English is the
reproduction of English language into signs. It has the same syntax and grammar
as English and as such, is not a language separate from English: [2005] FCA 405,
[127]-[128]. Signing in English, however, refers to the use of Auslan signs in
English word order: [2005] FCA 405, [129].
[249] Auslan is the native
language of the deaf community in Australia. It is a visual-spatial language
with its own complex grammatical and semantic system and does not have an oral
or written component: [2005] FCA 405, [125]-[126].
[250] [2005] FCA 405,
[74]-[75].
[251] A
bilingual-bicultural approach to the education of the deaf recognises Auslan and
Signed English as distinct languages and students are instructed in Auslan as a
first language and learn Signed English as a second language: [2005] FCA 405,
[466].
[252] [2005] FCA 405,
[790].
[253] [2005] FCA 405,
[781]-[785].
[254] [2005] FCA
405, [793].
[255] [2005] FCA
405, [794].
[256] [2005] FCA
405, [795]-[797].
[257]Hurst v Queensland (2006) 151 FCR 562. The Human Rights and Equal
Opportunity Commission was granted leave to intervene in these proceedings. The
submissions are available at
<http://www.humanrights.gov.au/legal/submissions_court/intervention/hurs…;.
[258] (2004) 186 FLR 376.
[259] (2004) 186 FLR 376, 478 [122]. See also the discussion of this case at 5.2.3(e).
[260](2001) 163 FLR 99.
[261] See 5.2.3(e) below on the issue of the
ability to comply with a requirement or
condition.
[262](2001)
163 FLR 99, [263].
[263] [2003]
FCA 759, [110]-[111].
[264] [2003] FCA 759, [111].
[265] [2005] FMCA 2,
[179]-[182].
[266] [2004] FMCA
915, [76]-[78] (in relation to the community centre), [79-80] (in relation to
the picnic tables).
[267] [2004] FMCA 915, [81].
[268] [2004] FMCA 915, [81].
[269] [2004] FMCA 915, [81].
[270] [2004] FMCA 915, [13]-[14]. The submissions of the Acting Disability
Discrimination Commissioner are available at <http://www.humanrights.gov.au/legal/submissions_court/amicus/hervey.html>.
[271] [2004] FMCA 915,
[13]-[14].
[272] [2004] FMCA
915, [81].
[273] (2007) 161 FCR
152, reversed on appeal in Queensland (Queensland Health) v Forest [2008]
FCAFC 96.
[274] (2007) 161 FCR
152, 171 [72].
[275] (2007) 161
FCR 152, 172-174
[74]-[84].
[276]Queensland
(Queensland Health) v Forest
[2008] FCAFC
96.
[277] [2008] FCAFC 96,
[126].
[278] [2008] FCAFC 96,
[126].
[279] [2008] FCAFC 96,
[10].
[280] See, for example, Travers v New South Wales [2000] FCA 1565, [17], where the court held
that a ‘reasonably liberal’ approach was required in assessing
whether the complainant was able to comply with the relevant
condition.
[281]Clarke (2003) 202 ALR 340, 352-53 [49], upheld on appeal CEO v Clarke (2004) 138
FCR 121. See also Hurst v Queensland (2006) FCR 562, 580 [106], 585
[134].
[282] (2003) 202 ALR
340, 352-353 [49].
[283] (2003)
202 ALR 340, 352-353 [49] (upheld on appeal: CEO v Clarke (2004) 138 FCR
121).
[284] (2006) 151 FCR
562.
[285] [2005] FCA
405.
[286] [2005] FCA 405,
[69].
[287] [2005] FCA 405,
[805]-[806].
[288] [2005] FCA
405, [819].
[289] [2005] FCA
405, [819].
[290] [2005] FCA
405, [820]. For a critique of this finding, see B Fogarty, ‘The Silence is
Deafening: Access to education for deaf children’, (2005) 43(5) Law
Society Journal
78.
[291]Hurst v Queensland (2006) 151 FCR 562. For a discussion of this case, see
Natasha Case, ‘Clarifying indirect disability discrimination’,
(2006) 44(9) Law Society Journal 42.
[292] (2006) 151 FCR
562, 580 [106].
[293] (2006)
151 FCR 562, 580 [106].
[294] (2006) 151 FCR 562, 584
[125].
[295] (2006) 151 FCR
562, 585 [134].
[296]Hinchliffe v University of Sydney (2004) 186 FLR 376, 476 [115]-[116].
Arguably, his Honour did not take the ‘reasonably liberal approach’
suggested in Travers when considering the applicant’s ability to
comply with the requirement or condition. While the applicant’s evidence
was that she was able to reformat material, such process was ‘time
consuming and left her with no time to study’ (381 [8]). In such
circumstances it is arguable that the applicant could not meaningfully comply
with the requirement or condition. Similarly, in Ball v Silver Top Taxi
Service Ltd
[2004] FMCA 967, Walters FM held that although it would cause
‘significant inconvenience’ to the applicant to comply with the
requirement or condition imposed by the respondent, she could have complied with
it ([70]). These decisions should perhaps be viewed with some caution in light
of the ‘serious disadvantage’ approach confirmed by the Full Federal
Court in Hurst v Queensland (2006) 151 FCR
562.
[297] [2004] FMCA
915, [9]. The submissions of the Acting Disability Discrimination Commissioner
are available at <http://www.humanrights.gov.au/legal/submissions_court/amicus/hervey.html>.
[298] [2004] FMCA 915, [81]. See further 5.2.3(b) above.
[299] In support of this
interpretation of compliance, Lehane J referred to a line of cases including Mandla v Dowell Lee [1983] 2 AC 548; Australian Public Service
Association v Australian Trade Commission
[1988] EOC 92-228, 77,162; Styles v Secretary, Department of Foreign Affairs & Trade [1988] EOC 92-239,
77,238.
[300][2000] FCA
1565, [17].
[301] (2007) 161
FCR 152.
[302] (2007) 161 FCR
152, 159 [28]. Her Honour raised further criticisms of the interaction between
ss 5-9 at 195 [173] of her
reasons.
[303] (2007) 161 FCR
152, 159 [28]. See also Grovenor v Eldridge [2000] FCA 1574; Haar v
Maldon Nominees Pty Ltd
(2001) 184 ALR
83.
[304]Queensland
(Queensland Health) v Forest
[2008] FCAFC
96.
[305] [2008] FCAFC 96,
[113]-[114].
[306] [2008] FCAFC
96, [25].
[307] [2008] FCAFC
96, [19]-[27].
[308] [2008]
FCAFC 96, [22].
[309] [2008]
FCAFC 96, [23]-[25], esp at [25]: ‘Where ss 7, 8 or 9 are concerned no
further finding of a ground of discrimination is
required’.
[310] Section
9(1)(d).
[311] Section
9(1)(e).
[312] Section
9(1)(f).
[313] Sections 9(1)(e)
and (f).
[314] [1996] HREOCA
29.
[315]Brown v Birss
Nominees Pty Ltd
[1997] HREOCA
54.
[316]Grovenor v
Eldridge
[1999] HREOCA 3 (extract at (1999) EOC
92-993).
[317] Section
9(1)(f).
[318] [2002] FMCA
95.
[319] Ibid
[2].
[320] (2007) 161 FCR 152,
overturned on appeal in Queensland (Queensland Health) v Forest [2008]
FCAFC 96.
[321] (2007) 161 FCR
152, 177 [100].
[322] (2007)
161 FCR 152, 175 [94].
[323]Queensland (Queensland Health) v Forest [2008] FCAFC
96.
[324] [2008] FCAFC 96,
[49]-[50].
[325] [2008] FCAFC
96, [106].
[326] [2008] FCAFC
96, [106].
[327]5.2.4(a).
[328] [2008] FCAFC 96,
[111]-[118].
[329] [2008] FCAFC
96, [115].
[330] [2008] FCAFC
96, [117].
[331] [2008] FCAFC
96, [19]-[27]. See further 5.2.4(a).
[332] (2003) 217 CLR 92. See further 5.2.2(b).
[333]Queensland (Queensland Health) v Forest [2008] FCAFC 96,
[33]-[47].
[334] [2008] FCAFC
96, esp at [44].
[335] [2008]
FCAFC 96, [47].
[336] [2008]
FCAFC 96, [52].
[337] Section
31(1)(a).
[338] Section
31(1)(b).
[339] Section
31(1)(c).
[340] Section
31(1)(d).
[341] Section
31(1)(e).
[342] Section
31(1)(f).
[343] Section
32.
[344] Section
33.
[345] Section 34. Note,
however, that a Disability Standard on one of the general topics on which
standards can be made under the DDA - public transport, access to premises,
education, employment, or administration of Commonwealth laws and programs -
will not necessarily provide a complete code which displaces all application of
the existing DDA provisions on that subject. How far it displaces the existing
DDA provisions will depend on the terms of the particular standard. See further:
<http://www.humanrights.gov.au/disability_rights/faq/stanfaq/stanfaq.htm…;.
[346] See further:
<http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimina…;.
[347] (2007) 162 FCR 313.
[348] (2007) 162 FCR 313, 331-335 [52]-[69]. See below discussion at
6.2.1.
[349] (2007) 162 FCR
313, 335 [69].
[350] Transport
Standards ss 1.16,
33.3-33.5.
[351] (2007) 162 FCR
313, 335 [73].
[352]Disability Standards for Education 2005 – Guidance Notes, p
1.
[353] Education Standards, s
2.1.
[354]Disability
Standards for Education 2005 – Guidance Notes,
p 1. A detailed list of
examples of the types of education providers subject to the Education Standards
appears as Note 1 to s 1.5 of the
Standards.
[355] See,
generally, Education Standards, Part 3. The obligation to provide reasonable
adjustments arises from ss 4.2(3)(c), 5.2(2)(c), 6.2(2)(c), 7.2(5(c) and
7.2(6)(c).
[356] See,
generally, Education Standards, s
3.5.
[357] Education Standards,
s 8.3(1).
[358] Education
Standards, s 8.3(2).
[359] Education Standards, s
8.5.
[360] Education Standards,
s 10.1, 10.2. The meaning of ‘unjustifiable hardship’, in the
context of the DDA, is considered further at 5.5 below.
[361] A copy of the
draft Access Code is available at: <http://www.abcb.gov.au/index.cfm?objectid=DDA9AB21-92E3-61E9-F0BC5802DAFDF14E>.
The Regulatory Impact Statement in relation to the proposed disability standard
and revised building code is available at: <http://www.abcb.gov.au/index.cfm?objectid=DA16DEA7-9D69-9836-2175127D975F8D70>.
[362] G Innes, ‘2006
– An opportunity not to be missed?’ Opinion piece, available at:
<http://www.humanrights.gov.au/disability_rights/speeches/2006/opportunity.htm>.
An edited version of this piece appeared in the Daily Telegraph, 21 January
2006.
[363] For more
information on the development of the disability standards on access to
premises, see <http://www.humanrights.gov.au/disability_rights/buildings/access_to_premises.html>.
[364] Sections 35 and 36.
[365] Sections 37 and 38.
[366] Sections 39 and 40.
[367] [2007] FMCA 1245.
[368] [2007]
FMCA 1245, [75].
[369] [2008]
FMCA 832.
[370] [2008] FMCA
832, [39].
[371] [2007] FMCA
1245, [73], quoting O’Grady v The Northern Queensland Company Ltd (1990) 169 CLR 356, 376 (McHugh
J).
[372]Orlowski v Sunrise
Co-operative Housing Inc
[2009] FMCA 31,
[21].
[373] [2008] FMCA
1221.
[374] Ibid
[97]
[375] Ibid
[98].
[376] Ibid.
[377] Ibid
[105].
[378] [1999] HREOCA 13
(extract at (1999) EOC
93-025).
[379] [1999] HREOCA 13
(extract at (1999) EOC
93-025).
[380] [1999] HREOCA 13
(extract at (1999) EOC
93-025).
[381] [2001] FMCA
12.
[382] [2001] FMCA 12,
[16]-[17]. Baumann FM cited with approval Greek Orthodox Community of South
Australia Inc v Ermogenous
(2000) 77 SASR 523, which had adopted a decision
of Wright J, President of the Industrial Relations Commission of New South
Wales, in Knowles v Anglican Church Property Trust, Diocese of Bathurst [1999] 89 IR 47, a case of alleged unfair dismissal by a priest of the Anglican
church.
[383] [2004] FCA
184.
[384] [2004] FCA 184,
[34]. Note that such a situation is covered by s 15(1)(b) which makes it
unlawful to discriminate ‘in determining who should be offered
employment’. Section 15(4) makes a defence of ‘inherent
requirements’ available in such cases. See further 5.3.1(d) below.
[385] [2006] FMCA 1232.
For discussion of this case, see Brook Hely, ‘Judge me by what I can do
– not by what you think I can’t’, (2006) 44(11) Law Society
Journal
48.
[386] The
applicant relied in particular upon the decision of the NSW Administrative
Decisions Tribunal in Holdaway v Qantas Airways (1992) EOC
92-395.
[387] [2006] FMCA 1232,
[39].
[388] [2006] FMCA 1232,
[40]–[42].
[389] [2003]
FMCA 285.
[390] [2003] FMCA
285, [48].
[391] [2003] FMCA
285, [55], [61]. The applicant relied upon R v Equal Opportunity Board; Ex
parte Burns
(1985) VR
317.
[392] [2005] FMCA
664.
[393] [2005] FMCA 664,
[102].
[394] [2005] FMCA 664,
[102].
[395] [2005] FMCA 664,
[103]-[104].
[396] [2008] FMCA
832, [65].
[397]Commonwealth v Human Rights & Equal Opportunity Commission (1996) 70
FCR 76, 87-88; Power v Aboriginal Hostels Ltd (2003) 133 FCR 254, [19]
(Selway J); Williams v Commonwealth [2002] FMCA 89,
[144].
[398] (1998) 193 CLR
280.
[399] (1998) 193 CLR 280,
284 [1].
[400] (1998) 193 CLR
280, 294 [34].
[401] (1998) 193
CLR 280, 295 [36].
[402] (1999)
200 CLR 177.
[403] (1999) 200
CLR 177, 189-190 [37]. See also Gummow and Hayne JJ (with whom Gleeson CJ and
Callinan J agreed) who noted that ‘the reference to “inherent”
requirements would deal with some, and probably all, cases in which a
discriminatory employer seeks to contrive the result that ... disabled [people]
are excluded from a job’ (208
[102]).
[404] (1999) 200 CLR
177, 189 [37].
[405] (1999) 200
CLR 177, 190 [39]. Gummow and Hayne JJ (with whom Gleeson CJ and Callinan J
agreed) noted their agreement with McHugh J on this point, 208-209 [104].
[406] [2002] FMCA
89.
[407] (1999) 200 CLR
177.
[408] [2002] FMCA 89,
[146].
[409] (2002) 125 FCR
229.
[410] [2008] FCA
603.
[411] [2008] FCA 603,
[77]-[82]. See further the discussion of this case at 5.3.1(d)(iv))]
[412] [2008] FCA 603, 208
[102].
[413] [2002] FCA
640.
[414] [2002] FCA 640,
[67]. Alternative duties which had been arranged as part of the
applicant’s rehabilitation programme (which was ultimately unsuccessful)
were found not to be part of his ‘particular employment’: ibid
[54]-[55]. The decision of Heerey J was upheld on appeal: Cosma v Qantas
Airways Ltd
(2002) 124 FCR
504.
[415] (2002) 122 FCR
19.
[416] (2002) 122 FCR 19, 27
[24].
[417]X v Department
of Defence
(1995) EOC
92-715.
[418] (1999) 200 CLR
177, 181-182 [11].
[419] (1999)
200 CLR 177, 208 [103].
[420] [2006] FMCA 1232, [47]. See also Gordon v Commonwealth [2008] FCA 603,
[66].
[421] [2006] FMCA 1232,
[47].
[422] [2006] FMCA 1232,
[49]–[50].
[423] [2006]
FMCA 1232,
[51]–[53].
[424] [2004]
FMCA 452.
[425] [2004] FMCA
452, [23].
[426] [2004] FMCA
452, [57].
[427] [2004] FMCA
452, [58].
[428] [2004] FMCA
452, [58], [68].
[429] [2004]
FMCA 452, [65] and
[68]-[69].
[430] [2004] FMCA
452, [119].
[431] (2003) 133
FCR 254, 262 [13].
[432] (2003)
133 FCR 254, 262-263
[15]-[18].
[433]Power v
Aboriginal Hostels Ltd
[2004] FMCA 452.
[434] [2004] FMCA 452, [65].
See also [17]-[22].
[435] [2008] FCA 603.
[436] [2008]
FCA 603, [63].
[437] [2008] FCA
603, [65].
[438] [2008] FCA
603, [82].
[439] [2008] FCA
603, [77]-[82].
[440] See, for
example, Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92; Minns v New South Wales [2002] FMCA 60; Clarke
v Catholic Education Office
(2003) 202 ALR 340; Finney v Hills Grammar
School
[1999] HREOCA 14 (extract at (1999) EOC 93-020); Travers v New
South Wales
(2001) 163 FLR 99; AJ & J v A School (No 2) (Unreported, HREOC, Commissioner McEvoy, 10 October 2000).
[441] See 5.5.1 below on the issue of unjustifiable
hardship.
[442] (2003) 217 CLR
92.
[443] (2003) 217 CLR 92,
124 [96].
[444] The changes to
s 22 were introduced by the Disability Discrimination Amendment (Education
Standards) Act 2005
(Cth), which commenced operation on 1 March 2005
(although the amendments to s 22 did not commence until 10 August 2005). The Act
also inserted into s 4(1) a new definition of ‘education provider’,
which applies to the newly created s
22(2A).
[445] [2006] FMCA
1936.
[446] [2006] FMCA 1936,
[38]–[43].
[447] [2006]
FMCA 1936, [42].
[448] (2003)
202 ALR 340.
[449] (2003) 202
ALR 340, 349-350 [39]. Cf Ferneley v The Boxing Authority of New South Wales [2001] FCA 1740 in the context of the
SDA.
[450] (2003) 202 ALR 340,
360 [82]. Note, however, that in Rana v Human Rights & Equal Opportunity
Commission
[1997] FCA 416, O’Loughlin J held that s 24 had no
operation in relation to a claim under s 27 based on the principle of statutory
construction that an express reference to one matter indicates that other
matters are to be
excluded.
[451](2000)
184 ALR 83.
[452](2000)
184 ALR 83, 94 [68].
[453] See
also, for example, Webb v Child Support Agency [2007] FMCA 1678; Sluggett v Human Rights & Equal Opportunity Commission (2002) 123 FCR
561; Cooper v Human Rights & Equal Opportunity Commission (1999) 93
FCR 481, 491-492 [29]-[31]; Grovenor v Eldridge [2000] FCA
1574.
[454] [2002] FMCA
95.
[455] [2002] FMCA 95,
[24].
[456] [2004] FMCA
915.
[457] [2004] FMCA 915,
[75].
[458] [2008] FCAFC 96,
overturning the decision of Collier J in Forest v Queensland (Queensland
Health)
(2007) 161 FCR
152.
[459] (1997) 191 CLR
1.
[460] Section 4(1) of the Equal Opportunity Act 1984 (WA) at that time provided a definition of
‘services’ which is similar to that contained in s 4(1) of the DDA
and included: ‘(e) services of the kind provided by a government, a
government or public authority or a local government body’.
[461] (1997) 191 CLR 1,
15.
[462] (1997) 191 CLR 1,
15.
[463] (1997) 191 CLR 1,
23-24.
[464] (1997) 191 CLR 1,
44-45.
[465] (1997) 191 CLR 1,
28.
[466] (1997) 191 CLR 1, 72.
[467] (2004) 184 FLR
110.
[468] (2004) 184 FLR 110,
119 [26].
[469] (2004) 184 FLR
110, 117 [20].
[470] (2004) 184
FLR 110, 115 [11]-[15], 117 [19]; Attorney General (Canada) v Cumming (1980) 2 FC 122, [131]-[132]; Savjani v Inland Revenue Commissioners (1981) QB 458; R v Entry Clearance Officer; Ex parte Amin (1983) 2 AC
818; Farah v Commissioner of Police of the Metropolis (1998) QB
65.
[471] (2004) 184 FLR 110,
116 [16]-[17]; Secretary of the Department of Justice & Industrial
Relations v Anti Discrimination Commissioner
11 TASR 324; Clarkson v The
Governor of the Metropolitan Reception Prison
(1986) EOC 92-153; Henderson v Victoria (1984) EOC 92-027 and (1984) EOC 92-105; Jolly v
The Director General of Corrections
(1985) EOC 92-124; A Complainant v
Western Australia
(1994) EOC 92-610; Hobby v Executive Director of the
Department of Corrective Services
(1992) EOC 92-397; Bandulla v
Victoria
[2002] VCAT
91.
[472] (2004) 184 FLR 110,
117 [20].
[473] (2004) 184 FLR
110, 118 [24].
[474]Rainsford v Victoria (2005) 144 FCR
279.
[475] (2005) 144 FCR 279,
296 [54]-[55].
[476]Rainsford v Victoria [2007] FCA 1059. For discussion of this case, see
Frances Simmons, 'When is performing a government function a service?'
(2008) 46 Law Society Journal 40.
[477] [2007] FCA 1059,
[73]-[76].
[478] [2007] FCA
1059, [76].
[479] [2007] FCA
1059, [77]-[78].
[480] [2007]
FCA 1059, [79].
[481]Rainsford v Victoria [2008] FCAFC 31. See also Frances Simmons, 'When is
performing a government function a service?' (2008) 46 Law Society
Journal
40.
[482] [2008]
FCAFC 31, [9].
[483] [2001]
FMCA 110.
[484] [2001] FMCA
110, [22].
[485] [2001] FMCA
127.
[486] [2001] FMCA 127,
[64].
[487] [2001] FMCA 127,
[60].
[488] [2001] FMCA 127,
[64].
[489] (1997) 191 CLR 1,
23-24.
[490] (1997) 191 CLR 1,
44-45.
[491] [2000] FCA
1582.
[492] [2000] FCA 1582,
[53].
[493] [2004] FMCA
967.
[494] [2004] FMCA 967,
[27].
[495] [2004] FMCA 967,
[45].
[496] [2004] FMCA 967,
[38].
[497] [2006] FCA
1433.
[498] [2006] FCA 1433,
[28].
[499]Wood v Cavalry
Hospital
[2005] FMCA
799.
[500] [2005] FMCA 799,
[23].
[501] [2006] FCA
1433.
[502] [2006] FCA 1433,
[28].
[503] [2006] FCA 1433,
[31].
[504] [2008] FMCA
1221.
[505] Ibid [78]-[81],
[88].
[506] Ibid [84],
[88].
[507] Ibid [86],
[88].
[508] [2008] FMCA
1221
[509] Ibid [75] (emphasis
in original).
[510] See also ss
123(1)-(9), which elaborate on the circumstances in which a body corporate will
be held liable for particular
conduct.
[511] [2004] FMCA 240,
[54]-[58].
[512] [2004] FMCA
240, [56].
[513] (2000) EOC
93-056.
[514] [2004] FMCA 240,
[56].
[515] [2008] FMCA
832.
[516] [2008] FMCA 832,
[65].
[517] (1999) 93 FCR
481.
[518]Cooper v Holiday
Coast Cinema Centres Pty Ltd
[1997] HREOCA
32.
[519]Cooper v Coffs
Harbour City Council
(1999) EOC
92-962.
[520] (1999) 93 FCR
481, 496 [52].
[521] (1999) 93
FCR 481, 490 [27]. The liability of the principal had been established in Cooper v Holiday Coast Cinema Centres Pty Ltd [1997] HREOCA 51 and was
not an issue in the proceedings before Madgwick
J.
[522] (1999) 93 FCR 481, 494
[41], citing with approval Adelaide City Corporation v Australasian
Performing Rights Association
Ltd (1928) 40 CLR 481, 490-491 (Isaacs
J). Cooper v Human Rights & Equal Opportunity Commission (1999) 93
FCR 481 was cited with approval in Elliott v Nanda (2001) FCR 240,
289-292 [154]-[160]; followed in Oberoi v Human Rights & Equal
Opportunity Commission
[2001] FMCA 34, [27]-[29]; Phillips v Australian
Girls’ Choir Pty Ltd
[2001] FMCA 109,
[24].
[523] (1999) 93 FCR 481,
493 [37]-[39].
[524] (1999) 93
FCR 481, 494 [41].
[525] (1999)
93 FCR 481, 493-494 [40]-[41].
[526] (1999) 93 FCR 481,
495-496 [46]-[49].
[527] (1999)
93 FCR 481, 496 [51].
[528] Unreported, HREOC, Commissioner Carter QC, 12 May 2000 (extract at (2000) EOC
93-089).
[529] Unreported,
HREOC, Commissioner Carter QC, 12 May 2000 (extract at (2000) EOC 93-089),
13.
[530] Unreported, HREOC,
Commissioner Carter QC, 12 May 2000 (extract at (2000) EOC 93-089),
14.
[531] [2008] FMCA
1221.
[532] Ibid
[98]-[105].
[533] Ibid
[106].
[534] Ibid.
[535] See ss 15, 16, 17,
18, 22, 23, 24, 25 and 27 of the
DDA.
[536] Note that s 15(4)
only applies to s 15(1)(b), ‘determining who should be offered
employment’, and s 15(2)(c), ‘dismissing the
employee’.
[537]Sluggett v Human Rights & Equal Opportunity Commission (2002) 123 FCR
561, 568 [24]-[25]; Daghlian v Australian Postal Corporation [2003] FCA
759, [113]-[114].
[538]Cooper v Human Rights & Equal Opportunity Commission (1999) 93 FCR
481, 492 [32]; cited with approval in Sluggett v Human Rights & Equal
Opportunity Commission
(2002) 123 FCR 561, 567-568
[23]-[24].
[539]Finney v
Hills Grammar School
[1999] HREOCA 14 (extract at (1999) EOC 93-020).
Affirmed on review in Hills Grammar School v Human Rights & Equal
Opportunity Commission
(2000) 100 FCR 306, 318 [48]. See also Access For
All Alliance (Hervey Bay) v Hervey Bay City Council
[2004] FMCA 915,
[84].
[540] (1997) EOC
92-903.
[541] (1997) EOC
92-903, 77, 453.
[542] [2004]
FMCA 915, [85].
[543] [2004]
FMCA 915, [87], citing with approval Scott v Telstra (1995) EOC 92-117,
78,401.
[544] (1997) EOC
92-903, 77,452.
[545] [1997]
HREOCA 51.
[546] [1997] HREOCA
51.
[547] (1995) EOC 92-717,
78,402.
[548] (1995) EOC
92-717, 78,402. See also Finney v Hills Grammar School [1999] HREOCA 14
(extract at (1999) EOC 93-020). Decision affirmed on review in Hills Grammar
School v Human Rights & Equal Opportunity Commission
(2000) 100 FCR 306,
318 [43]-[45].
[549] [2002]
FMCA 89.
[550] [2002] FMCA 89,
[149]. The decision of McInnis FM was overturned by the Full Federal Court in Commonwealth v Williams (2002) 125 FCR 229 on the basis of the exemption
in s 53 of the DDA (considered below in 5.5.2(b)). The aspects of his Honour’s decision
relating to unjustifiable hardship were not
considered.
[551] [2004] FMCA
915, [13]-[14].
[552] [2004]
FMCA 915, [86].
[553] [2004]
FMCA 915, [87]-[88].
[554] (2001) 162 FLR 433.
[555] (2001) 162 FLR 433, 439
[16].
[556] (1991) 173 CLR
349.
[557] (1989) 23 FCR
251.
[558](2001) 162
FLR 433, 439-440
[16]-[18].
[559] [2003] FMCA
412.
[560] [2003] FMCA 412,
[37].
[561] [2003] FMCA 412,
[52].
[562] (2004) 137 FCR
88.
[563] (2004) 137 FCR 88, 94
[28].
[564] (2004) 137 FCR 88,
95-96 [33]-[34].
[565] (2004)
137 FCR 88, 96 [36].
[566] (2004) 137 FCR 88, 96
[37].
[567] (2004) 137 FCR 88,
99 [51]-[54].
[568] [2002] FMCA
89.
[569] [2002] FMCA 89,
[154]. See 5.3.1(d) above for general
discussion on the issue of inherent
requirements.
[570] (2002) 125
FCR 229.
[571] (2002) 125 FCR
229, 237 [32]-[33].
[572] (2002) 125 FCR 229, 237-238
[34].
[573] ‘Prescribed
laws’ are those for which regulations have been made by the
Governor-General pursuant to s 132 of the
DDA.
[574] [2003] FMCA
285.
[575] [2003] FMCA 285,
[26]. Note, however, the Corrections Act 1986 (Vic) is not a law that has
been prescribed for the purposes of s 47(2). (Nor does s 47(3) have application
as that section only applies for 3 years from the commencement of the section (1
March 1993)).
[576] [2003] FMCA
285, [46].
[577] [2003] FMCA
285, [46].
[578] (2003) 202 ALR
340.
[579]Catholic
Education Office v Clarke 
(2004) 138 FCR
121.
[580] (2004) 138 FCR 121,
148 [127].
[581] (2004) 138 FCR
121, 149 [129].
[582] (2000)
100 FCR 1, 5 [24].
[583] [1998] 3 VR 759, 771.
[584] (2004) 138 FCR 121, 149
[130].
[585] (2004) 138 FCR
121, 149 [131] (Sackville and Stone
JJ).
[586] (2004) 138 FCR 121,
149 [132].
[587]Penhall-Jones v New South Wales [2007] FCA 925,
[10].
[588] [2007] FCA
925.
[589] [2007] FCA 925,
[69].
[590] [2007] FCA 925,
[68]-[84].
[591] [2007] FCA
925, [85]. See also Damiano v Wilkinson [2004] FMCA
891.
[592]Penhall-Jones v
New South Wales (No 2)
[2006] FMCA
927.
[593] [2006] FMCA 927,
[125].
[594] [2006] FMCA 927,
[126].
[595] [2006] FMCA 927,
[127].
[596] [2006] FMCA 927,
[129].
[597] [2006] FMCA 927,
[128]-[129].
[598] [2006] FMCA
927, [136].
[599] [2007] FCA
925.
[600] [2007] FCA 925,
[63].
[601] [2004] FMCA
891.
[602] Note that other
conduct alleged by the applicants was found not to have formed part of the
complaint to HREOC and was excluded from consideration by virtue of s 46PO(3) of
the HREOC Act: [2004] FMCA 891,
[39].
[603] [2004] FMCA 891,
[23], citing Bogie v University of Western Sydney (1990) EOC
92-313.
[604] [2004] FMCA 891,
[23], citing Bailey v Australian National University (1995) EOC
92-744.
[605] [2004] FMCA 891,
[23], citing Sivanathan v Commissioner of Police (NSW) (2001) NSWADT
44.
[606] [2004] FMCA 891,
[24].
[607] [2004] FMCA 891,
[28]-[29].
[608] [2005] FMCA
1226.
[609] [2005] FMCA 1226,
[31].