Recommended decision on application
for exemption under Disability Discrimination Act section 55: Employers
Making A Difference

Application

By email received on 14 August 2001, Employers Making A Difference have
requested an exemption under section 55 of the Disability Discrimination
Act from liability under the Act, for a period of five years, to permit
them to advertise positions as being only open to people with a disability.

Process for consideration notice of inquiry and submissions

The Commission's published policy on exemption applications under the
DDA indicates that "the Commission will seek to give interested parties,
including people with a disability (through their representative organisations
and/or more directly), effective opportunities to participate in decisions
regarding applications for exemption".

In general this involves seeking submissions in response to a notice
of inquiry and/or a draft decision. This policy also indicates that the
procedure may be varied in cases of urgency and/or where the Commission
considers that sufficient opportunities have already occurred for parties
to put evidence and arguments before it.

In my view the present application is a case where the usual consultation
procedure is not required before refusing to grant an exemption, because
it turns entirely on a simple and clear point of law rather than on any
assessment of facts and their merits.

I also consider that, having regard to the objects of the Act, the Commission
should accept the applicant's submission that the matter deserves urgent
consideration so that employment opportunities for people with disabilities
should not continue to slip by pending resolution of this matter.

Recommended decision

I recommend that the requested exemption be refused, because there is
simply no arguable basis for any view that the conduct in question is
unlawful under the DDA so as to require an exemption.

The Commission has decided on a number of occasions that it ought not
to grant exemptions where there is no substantial prospect of the conduct
concerned being held to be unlawful in the absence of an exemption. Other
bodies responsible for similar powers have taken the same view. I refer
in particular to the decision of the Victorian Equal Opportunity Board
in Re Fernwood Fitness Centre ([1996] EOC 92-782), adopted and summarised
by the Victorian Civil and Administrative Tribunal (VCAT) in Doveton
North Primary School, where it was noted that "an exemption will not
be granted unnecessarily - that is, where another statutory exception
in the Act clearly applies, or where there is no arguable case of discrimination".

It should be obvious that in the present matter there is no arguable
case of discrimination.

The Disability Discrimination Act provides for complaints only where
a person alleges discrimination on the basis of a disability which that
person has (or which is imputed to him or her, or he or she had in the
past or may have in the future or the disability of an associate). A complaint
that a person has been discriminated against because he or she does not
have a disability or the particular disability which is a criterion for
eligibility for a program or opportunity would lack any valid basis in
the Disability Discrimination Act - or for that matter under its State
and Territory equivalents, each is which is in similar terms in relevant
respects.

The applicants have indicated that they require this exemption because
the Department of Employment, Workplace Relations and Small Business will
not permit "disability only" positions to be advertised on its main jobseeking
service, the Australian Jobseeking Site without such an exemption. However,
it would not in my view be proper for the Commission to base its own decisions
on plainly incorrect views of the Disability Discrimination Act which
might be held by other parties.

Adoption and publication of a decision in the terms I recommend is more
likely to be effective in correcting such incorrect views and avoiding
the time of all concerned being wasted in making similar applications
in future to protect beneficial programs targeted to people with a disability.

GRAEME INNES AM

Deputy Disability Discrimination Commissioner

14 August 2001