The following is the text of a notice published in the Commonwealth of Australia Gazette GN 37 on 18 September 1996
Disability Discrimination Act 1992
Application pursuant to section 55 for exemption from a provision or provisions of Part 2, Divisions 1 and 2
As required by section 57 of the Disability Discrimination Act 1992, the Human Rights and Equal Opportunity Commission hereby gives notice of a decision made on 3 September 1996 with respect to the following matter:
Women's Legal Service Inc.
Solicitors for applicant:
Tobin and Co, GPO Box 713, Brisbane Qld 4001
Decision of the Commission:
The Commission declines to grant an exemption pursuant to section 55 of the Disability Discrimination Act 1992 in respect of the application dated 29 May 1996 by Women's Legal Service concerning premises at 387 Ipswich Road, Annerley, Queensland.
Finding and reasons:
In making this decision the Commission adopted the findings and reasons contained in the recommendation and statement of reasons prepared by the Disability Discrimination Commissioner and annexed to this notice and marked "A".
Review of decision:
Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review of the decision to which this notice relates by or on behalf of any person or persons whose interests are affected by the decision.
President, on behalf of the Commisison
3 September 1996
Recommendation of the Disability Discrimination Commissioner to the Human Rights and Equal Opportunity Commission
I recommend that the Commission decline to grant an exemption pursuant to section 55 of the Disability Discrimination Act 1992 in respect of the application dated 29 May 1996 by Women's Legal Service concerning premises at 387 Ipswich Road, Annerley, Queensland.
Findings on material questions of fact
2. Reasons for recommendation
3. Conclusion and recommendation
1. Findings on material questions of fact
The decision in relation to this application does not depend on any findings on material questions of fact.
2. Reasons for recommendation
Applicant and activity for which exemption is sought
2.2 Grounds of application
2.3 Statutory provisions from which exemption is sought
2.4 Unjustifiable hardship
2.5 The exemption power and unjustifiable hardship
2.6 Action plans
2.1 Applicant and activity for which exemption is sought
Women's Legal Service Inc. ("the Service") by its solicitors Tobin & Co. has applied for an exemption pursuant to section 55 of the Disability Discrimination Act 1992 ("DDA").
The application relates to premises at 387 Ipswich Road, Annerley, Queensland, which the Service is acquiring with a view to conducting from those premises its activity of providing legal services to women. The application is entirely to do with physical access to the premises and in these reasons I confine myself to issues arising therefrom. It is appropriate to observe that were the application to be granted on the grounds on which it is sought, any exemption would be conditional and restricted to questions of physical access which do not exhaust the scope of the DDA as it applies to service providers.
2.2 Grounds of application
The Service says:
"that the supply of disabled access to the first floor of the Service's proposed premises would impose unjustifiable hardship on the Service in that:
- the ground floor of the premises has disabled access and ..... the majority of the offices to which women seeking assistance from the Service would require access are located on the ground floor. If any of the staff of the Service who have offices on the first floor are required to meet with a disabled client then arrangements will be made for a ground floor office to be available;
- the non-provision of disabled access to the first floor of the premises will not reduce the ability of disabled women to access the Service nor the ability of the Service to provide services to disabled women;
- the Service simply has insufficient funds to provide disabled access to the first floor of the premises in addition to meeting the costs of purchasing the house and undertaking renovations to the house;
- the renovated premises will allow the Service to provide a better service to women generally and will make the Service more accessible. If the Service were required to provide disabled access to the first floor then the Service would not be able to proceed with the purchase of the house and the renovations."
The Service also submits as a relevant circumstance the fact that it "does not currently employ any disabled staff".
The premises are described in detail in the application and comprise 809 square metres on which is situated an elevated timber house that is to be raised further and enclosed to create a ground floor. The ground floor will be designed for wheelchair access and the plans provide for installation of a lift to the first floor. I summarise the financial information provided in the application, as follows.
The premises are being purchased for an amount of $186,000. The cost of renovations, removal and associated expenses is estimated to be $192,500, making a total of $378,500. Funds available for the purchase amount to $362,000 from various sources, leaving a shortfall of $16,500. Replacement of the roof, at an approximate cost of $20,000, is being deferred to meet the shortfall. Funding is not available for the lift, which would also cost approximately $20,000.
2.3 Statutory provisions from which exemption is sought
The application appears to be directed to physical access to the premises where the Service intends to act as a service provider. In the circumstances it is convenient also to make observations on physical access with respect to the responsibilities of the Service as an employer. I set out the relevant provisions of the DDA as follows.
15. (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:
- in the arrangements made for the purpose of determining who should be offered employment; or
- in determining who should be offered employment; or
- 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:
- in the terms or conditions of employment that the employer affords the employee; or
- 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
- by dismissing the employee; or
- 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:
- would be unable to carry out the inherent requirements of the particular employment; or
- 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.
(Section 16, concerning commission agents, and s 17, concerning contract workers, are for present purposes in the same terms as s 15.)
24. (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:
- by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
- 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
- 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.
The Service relies on a claim of "unjustifiable hardship" to establish its case for an exemption. In the DDA "unjustifiable hardship" has the meaning given in s 11:
11. 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:
- the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
- the effect of the disability of a person concerned; and
- the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
- in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under section 64.
As can be seen, rather than providing a comprehensive definition, s 11 is a guide to matters that a decision-maker must have regard for in assessing a claim of unjustifiable hardship.
I now turn to the role that a claim of unjustifiable hardship has with respect to an exemption application.
The function entrusted to the Commission, an administrative body, to exempt one or more persons from the operation of a law that protects the rights of people, involves the exercise of a weighty power that ought to be used with due care and only for the most compelling reasons. The power under s 55 to grant exemptions is a broad one. There are no explicit provisions in the DDA concerning matters which the Commission must or may take into account in determining an application for exemption. As a matter of administrative law, the power must be exercised consistently with the objects provided by s 3, which are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
- work, accommodation, education, access to premises, clubs and sport; and
- the provision of goods, facilities, services and land; and
- existing laws; and
- the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
The overriding public purpose that would justify an exemption is that the objects of the DDA will be best achieved by temporary relaxation, in specific circumstances and with respect to identified persons, of a particular provision. This does not amount to suspension of the operation of the DDA. It allows, on conditions the Commission sees fit to impose, conduct which the DDA otherwise declares to be unlawful whilst measures that will achieve better compliance are implemented Where this public purpose cannot be demonstrated, and absent manifest injustice to the applicant, then as a rule an exemption should not be granted.
An exemption does not prevent a complaint being lodged about disability discrimination but, provided that any conditions placed on the grant of exemption are met, an exemption establishes a defence to a complaint. Where an exemption is granted for the public purpose of better achieving the objects of the DDA, then the existence of the exemption will be a significant deterrent to the lodging of complaints. Its purpose, however, ought not primarily to be a form of insurance against lodgement of a complaint.
Likewise, a claim of unjustifiable hardship does not prevent a complaint being lodged but it can, if established, provide a defence. This raises the question of whether unjustifiable hardship ought to be entertained as a ground for grant of exemption. In my view, the statutory concept of unjustifiable hardship cannot alone justify an exemption. Section 11 has quite specific application in connection with the prohibitions of disability discrimination against "a person" mentioned in Part 2, Divisions 1 and 2. Definitions apart, these prohibitions are the only sections of the DDA in which the term "unjustifiable hardship" appears and in each of them it serves to relax the prohibition. The provisions of the DDA to which I take the present application to be directed (ss. 15, 16, 17 and 24) are among the prohibitions. In each provision, this statement operates to say "This conduct is unlawful unless doing otherwise causes unjustifiable hardship". It follows therefore that where conduct is permitted because to do otherwise would impose unjustifiable hardship, then that conduct is lawful and no exemption from the DDA is required in respect of it.
In saying that an exemption is contingent on the objects of the DDA being achieved I am not asserting that the burden of better general compliance must always fall on a particular applicant for exemption. It may be that improvement will be brought about in the sector concerned due to efforts of relevant industries or professions, through the advocacy of people with disabilities, by changing market demands, the outcomes of complaints or a mixture of these and other factors. It is often the case, especially in highly structured or regulated activities, that an individual person or enterprise will need some leeway in order not to suffer manifest injustice in the adjustment process. For this reason the Commission should remain alert to issues affecting the situation of individual applicants. Unjustifiable hardship is strictly speaking a defence to a complaint and not a ground for granting an exemption, however adverse circumstances in which an applicant may be placed can appropriately be considered by the Commission in forming its view.
I quite understand the desire of service providers to minimise the risk that disability discrimination complaints may be lodged against them. I should also say that in some three-and-a-half years of complaint handling under the DDA, no cases have come to light where a successful defence of unjustifiable hardship has been followed by a frivolous or vexatious complaint that would fail in face of the same defence. Had such a complaint arisen a decision would have been taken under s 71(2)(d), which provides in effect for summary dismissal, not to inquire into it.
My advice to the Commission would be that exemptions ought not to be made only to do the work of the defence of unjustifiable hardship although, given some other public purpose that satisfies the objects of the DDA, exemptions may incidentally relieve unjustifiable hardship.
I wish to make some remarks about action plans and their role in achieving the objects of the DDA. The DDA provides:
60. A service provider may prepare and implement an action plan.
61. The action plan of a service provider must include provisions relating to:
- the devising of policies and programs to achieve the objects of this Act; and
- the communication of these policies and programs to persons within the service provider; and
- the review of practices within the service provider with a view to the identification of any discriminatory practices; and
- the setting of goals and targets, where these may reasonably be determined against which the success of the plan in achieving the objects of the Act may be assessed; and
- the means, other than those referred to in paragraph (d), of evaluating the policies and programs referred to in paragraph (a); and
- the appointment of persons within the service provider to implement the provisions referred to in paragraphs (a) to (e) (inclusive).
62. The action plan of a service provider may include provisions, other than those referred to in section 61, that are not inconsistent with the objects of this Act.
The best way of avoiding complaints of discrimination under the DDA is to not engage in unlawful discrimination. Recognizing, however, that our historical legacy of practices, buildings and laws often makes it difficult to avoid, or even to identify, discrimination, the DDA contains mechanisms for facilitating processes of change.
People who use these processes receive statutory recognition for their efforts through the operation of s 11, which incorporates action plans as an element of unjustifiable hardship and can therefore contribute to a defence to a complaint. Of course, the defence is not automatic: it is the substance of an action plan, not the mere fact of its making, that will contribute to deterring or defending a complaint. Nonetheless, for most service providers an action plan will be no less insurance against complaint than an exemption, without the need for discharging the burden of public interest that is required for an exemption application to succeed.
The Commission has produced guides to assist people and organizations in different sectors to prepare action plans. A plan can be large or small: s 61 is to be read in terms of what is reasonable according to the size of the service provider concerned and the range of its activities. The Commission gives every encouragement to the development of action plans as positive moves towards elimination of disability discrimination.
The Service is to be commended for taking action to acknowledge the rights of people with disabilities. I appreciate that their motive in seeking an exemption is part of their overall strategy for providing their services in a non-discriminatory way. In my opinion:
- the Commission is not required to determine the merits of a claim of unjustifiable hardship when that is the sole ground advanced in support of an application for exemption from a provision of the DDA;
- there are alternative means to a grant of an exemption that achieve a measure of security against the lodging of complaints and the objects of the DDA would not be served in granting the present application; and
- no manifest injustice requires that the application be granted.
Without prejudice to handling any complaint that may be lodged, the proposed arrangements for physical access appear to enable the Service to perform its activities without infringing s24. Whether the Service does in fact deliver its services in a non-discriminatory way will be a matter of practice. That practice could be described in an action plan if the Service decides to prepare one.
The Service must also discharge its obligations under ss 15, 16 and 17 towards employees, commission agents and contract workers. In my view, this could also be facilitated through preparation of an action plan as provided by s 62 and by other equal employment opportunity mechanisms, without recourse to a highly specific exemption.
It is in the public interest for service providers to take initiatives to eliminate disability discrimination and for them to affirm their commitment to doing so by preparing and giving action plans to the Commission. Where an exemption is not justified, as in the present case, an action plan could contribute to deterring or defending a complaint through engaging the unjustifiable hardship provisions of the DDA.
For the foregoing reasons I recommend that the Commission decline to grant the application.
Disability Discrimination Commissioner