Commission submissions: Hurst

Legal

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

No QUD 187 of 2005

On appeal from Lander J in the Federal Court

BETWEEN

TIAHANA HURST

(BY HER NEXT FRIEND GAIL SMITH)

Appellant

and

STATE OF QUEENSLAND

Respondent

SUBMISSIONS OF THE HUMAN RIGHTS

AND EQUAL OPPORTUNITY COMMISSION

SEEKING LEAVE TO INTERVENE

A. Submissions on leave to intervene

1. By Notice of Motion filed 16 February 2006, the Human Rights and Equal Opportunity Commission ('the Commission') seeks the leave of the Court to intervene at the hearing of this appeal pursuant to s 67(1)(l) of the Disability Discrimination Act 1992 (Cth) ('DDA') and s 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOC Act').

2. The application for leave to intervene is made on the grounds set out in the affidavit of Graeme Innes, affirmed on 16 February 2006.

3. The Commission seeks to intervene by way of written submissions and, if the Court considers it to be of assistance, short oral submissions.

4. The Commission submits that the appeal involves issues of general principle and public importance which may significantly affect persons other than the parties who are before it.[1]

5. The Commission further submits that it has:

1. a legitimate concern in making submissions in relation to the proper interpretation of the provisions of the DDA that are at issue in these proceedings;[2]
2. an interest in the subject of litigation greater than a mere desire to have the law declared in particular terms;[3]
3. an ability to make submissions that the Court might consider that it 'should have to assist it to reach a correct determination';[4]
4. special knowledge and expertise relevant to the issues raised in these proceedings; and
5. an ability to make submissions that differ in emphasis and content from those of the parties and that are likely to 'assist the Court in a way in which the Court would not otherwise have been assisted'.[5]

6. No practical considerations militate against the granting of leave because:

(a) all parties have received adequate notice of the Commission's intention to seek leave to intervene and the nature of that intervention;

(b) the Commission requests only a short opportunity to make oral submissions;

(c) the Commission's intervention should have no adverse impact upon the parties with respect to costs.

B. Summary of substantive submissions

7. The Commission seeks to provide the Court with an overview of the DDA relevant to the issues before it and will make submissions to the Court on the correct approach to the term 'does not or is not able to comply' in s6(c) of the DDA, having regard to:

international and Australian authorities;
relevant rules of construction; and
relevant international human rights standards.

C. Overview of the DDA

8. The objects of the DDA as expressed in s 3 include:

(a) a remedial object: 'to eliminate, as far as possible, discrimination against persons on the ground of disability' in designated areas: (paragraph (a)); and

(b) an educative object: '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': (paragraph (c)).

9. To give effect to those objects the Act contains, amongst other things, a number of provisions which make it unlawful 'to discriminate against a person on the ground of the person's disability' in specified areas of public life.[6]

10. The present appeal involves section 22(2) of the DDA, which provides:

It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:

(a) 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.

11. The term disability is defined in s 4(1) of the DDA.

12. The term disability discrimination is also defined in s 4(1) as 'the meaning given by ss 5 to 9 (inclusive)' and discriminate is defined as 'the meaning given by ss 5 to 9 (inclusive)'.

13. Adopting a dichotomy that is mirrored in other Commonwealth, State and Territory legislation,[7] 'discrimination' for the purpose of the Act, may be either 'direct discrimination' (s 5) [8] or 'indirect discrimination' (s 6).[9] The present appeal is concerned only with a claim of indirect discrimination.

14. Section 6 of the DDA defines indirect 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; and

(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.

15. Not all forms of discrimination are unlawful and the DDA provides a range of defences or exemptions.[10] It is a defence in certain circumstances for a respondent to show that the actions required to avoid discrimination would impose 'unjustifiable hardship' on a respondent. [11] Such a defence did not apply here, however that omission has been described by members of the High Court as a legislative anomaly which should be addressed by Parliament.[12] It is also a defence if a person acts in accordance with a 'disability standard' formulated under s31 of the DDA.[13] The Disability Standards for Education 2005 were formulated under that provision, but did not apply during the period in issue in this appeal.[14]

D. Findings made by Lander J

16. In relation to the appellant's claim of indirect discrimination under s 22(2) of the DDA the Court below found:

(a) the appellant was a student (see para [15]);

(b) the appellant was required to comply with a requirement or condition, being that the appellant be educated without an Auslan interpreter or Auslan teacher (see para [85]);

(c) a substantially higher proportion of students without a hearing impairment could comply with that requirement or condition (see para [79]);

(e) the appellant was able to comply with the requirement as 'she can cope in a regular classroom environment' and had maintained parity with her hearing peers (see paras [809], [812] and [813]);

(f) if the appellant had been unable to comply with the requirement or condition:

(i) the requirement or condition would not have been reasonable having regard to the circumstances of the case (see paras [797] and [802]); and

(ii) the appellant would have been subjected to a 'detriment' for the purposes of s22(2)(c) of the DDA (see para [797]).

E. Line of Australian and international authority regarding ability to comply with a requirement or condition

17. In arriving at the finding referred to in paragraph 16(e) above, Lander J did not discuss a line of Australian and international authority which has adopted a broad and flexible approach to the issue of compliance.

18. The starting point for that line of authority is the decision in Mandla v Dowell Lee,[15] (Mandla) where the House of Lords considered a provision analogous to s6(c) of the DDA, which used the term 'can comply'. Prior to that decision, it had been suggested that a strict approach was required in that context, such the mere theoretical possibility of compliance would result in a conclusion that the person alleging discrimination could comply.[16] However, Lord Fraser of Tullybelton delivering the leading judgment in Mandla rejected such an approach holding:

The word 'can' is used with many shades of meaning. In the context of the [relevant provision] it must, in my opinion, have been intended by Parliament to be read not as meaning 'can physically', so as to indicate a theoretical possibility, but as meaning 'can in practice' or 'can consistently with the customs and cultural conditions of the racial group'.[17]

The appellant in Mandla was a Sikh student who wore long hair and a turban. He was subjected to a requirement, as a condition of entry to the school, that he wear short hair and a cap. Lord Fraser observed:

It is obvious that Sikhs, like anyone else, 'can' refrain from wearing a turban, if 'can' is construed literally. But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in the 1976 Act, then a literal reading of the word 'can' would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the 1976 Act to afford to them. They 'can' comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules. .... I am of opinion that the 'no turban' rule was not one with which the second appellant could, in the relevant sense, comply.[18]

19. The approach in Mandla has been expressly approved by a number of Australian courts and tribunals considering state and federal indirect discrimination provisions.[19] The principle emerging from Mandla has generally been understood as requiring a 'broad'[20] or 'reasonably liberal'[21] approach to the question of compliance, which is not foreclosed by the fact that the person could in certain circumstances literally 'comply' with the relevant condition or requirement.[22] Rather, it has been held that a wider inquiry is required, including matters such as practicality of compliance[23] and reasonableness.[24]

20. That approach is evident in a number of Australian decisions on indirect disability discrimination. For example, in Byham v Preston City Council[25] (Byham), the Victorian Equal Opportunity Commission considered a complaint by an elderly man who walked with the assistance of crutches. His complaint concerned his attendance at council meetings, held in a place which was only accessible by stairs. It was found that he was subject to a requirement that he use the staircase to access the municipal offices. The respondent suggested that he was able to comply with that requirement, as his own evidence was to the effect that he had actually climbed the stairs with the assistance of his son. The Board rejected that submission stating:

In the Board's view, the submission by the respondent that the mere fact that Mr Byham actually does access the first floor albeit in a manner that is totally different to a person who is not impaired in the way he is is not sufficient for us to find that he can comply with their requirement. In the Board's view, the [equivalent of s6(c)] necessitates a finding that the impaired person, in this case Mr Byham, is unable to comply with the requirement set by the Respondent in a similar manner to the way in which a person not so impaired could comply. [26]

21. A similar approach was adopted by the New South Wales Equal Opportunity Tribunal in Woods v Wollongong City Council[27] (Woods), where the applicant used a wheelchair and alleged that she was subjected to a requirement or condition that she enter a shopping centre at particular locations via stairs or an escalator. The Tribunal observed that, if a literal construction were adopted, it could be said that the applicant was able to comply with that condition with 'able bodied assistance'. The Tribunal rejected such an interpretation, stating:

...[it] would deprive physically disabled persons of much of the protection which the legislation was intended to afford them. Accordingly the Tribunal considers that compliance with this requirement should be interpreted in a practical sense so that, unless the applicant could comply with the requirement without assistance, she must be regarded [for the purposes of the relevant provision] as being unable to comply.[28]

22. The Federal Court and Federal Magistrates Court have similarly construed s6(c) of the DDA. In Travers v New South Wales[29] (Travers), 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 that she attend classes in a classroom from which she could not walk to a readily accessible toilet in 12 seconds. Twelve seconds was the time by which the applicant needed to reach the toilet to avoid urinating in her pants. 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, his Honour held that (if the applicant proved the facts alleged) she would not able to comply with the requirement or condition in the relevant sense.[30]

23. The issue also arose more recently, in Clarke v Catholic Education Office & Anor[31] (Clarke). In that matter, the applicant contended that his son, who was deaf, was subjected to indirect discrimination 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 his admission to their school was made. The 'model of learning support' did not include the provision of Auslan interpreting assistance and instead relied upon the use of note-taking as the primary communication tool to support the student in the classroom. Madgwick J characterised the requirement or condition as being a requirement that the student was 'to participate in and receive classroom instruction without the assistance of an interpreter'. Amongst other things, the respondent contended that

[the applicant] was able to comply with the alleged requirement or condition as he was a "total communicator"; the model of support was a positive tool, and compliance with it would not have resulted in unfavourable treatment for him (emphasis added)

Madgwick J stated that this submission:

...implicitly and, in my view, correctly concedes that compliance [for the purposes of s6(c)] must not be at the cost of being thereby put in any substantial disadvantage in relation to the comparable base group.[32]

In the context of the submission he was discussing, it is apparent that his Honour was using the word 'substantial' to refer to disadvantage or unfavourable treatment which is not merely nominal, ephemeral or minimal.[33]

24. In concluding that the student would not have been able to comply with the relevant requirement, his Honour stated:

In my opinion, it is not realistic to say that [the student] could have complied with the [requirements imposed under the model of support offered by the school]. 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.[34]

25. His Honour's findings on that point (and on a number of other points) were the subject of an appeal to the Full Federal Court. The Court expressly held that there was no error in his Honour's findings in relation to s6(c).[35]

26. The Commission submits that Madgwick J correctly articulated the test underlying the approach evident in the Australian and United Kingdom authorities. That is, a person 'does not or is not able to comply' where circumstances said to constitute compliance or potential compliance involve the person being placed at a non-trivial disadvantage as compared to people who are not affected by the relevant ground of discrimination. Matters of practicality and reasonableness must be taken into account when considering that issue.

27. Federal Magistrate Driver has since purported to apply Clarke in Hinchliffe v University of Sydney.[36] However, his Honour mistakenly understood Clarke to require:

...the applicant prove a "serious disadvantage" with the result that the applicant could not "meaningfully participate" in the course of study for which she had been accepted. [37]

28. With respect, the references to 'serious disadvantage' and ability to 'meaningfully participate' were plainly Madgwick J's description of the actual disadvantage faced by the applicant in Clarke. The statement of general principle is that identified in paragraph 26 above.

29. In reaching his conclusions on s6(c) in the current matter, Lander J did not refer to Clarke or the other authorities discussed above. His Honour approached the question posed by s6(c) as involving ascertainment of whether the appellant had been able to 'cope in a regular classroom environment'.[38] In giving an affirmative answer to that question, his Honour relied upon the opinions expressed in expert evidence and the fact that the appellant had maintained parity with her hearing peers.

30. His Honour did not ask himself whether the evidence established that the appellant's purported compliance was at the cost of a non-trivial disadvantage as compared to her hearing peers. That omission was significant. A failure to consider the question identified by Madgwick J anomalously penalises those who, like the applicant in Bynam, persevere in their efforts to overcome a particular condition or requirement. Mr Byham's admission that he could climb the stairs with his son's assistance arguably demonstrated that he was able to 'cope' with the relevant requirement, even if he was subjected to some hardship and personal indignity. It could similarly be asserted that the parties alleging discrimination in Wood, Mandla, Travers and Clarke could have 'coped' with the relevant requirements or conditions, despite suffering indignity and/or disadvantage in comparison to those not affected by the relevant ground of discrimination.

31. There was evidence before Lander J which indicated that the appellant had suffered comparable forms of disadvantage. For example, it could have been inferred from the evidence of Mr Morris (which Lander J accepted in all respects[39]) that the appellant had suffered disadvantage as compared to her hearing peers either in the form of having to undertake substantial additional work outside class or a failure on the appellant's part to reach her full potential. His Honour also had before him evidence of the appellant's mother to the effect that she had spent considerable time and effort providing the appellant with relevant instruction outside class.[40] Although not entirely clear, his Honour appeared to accept that those efforts on the part of the appellant and her mother had contributed to the appellant 'coping' in the sense that she did not fall behind her hearing peers.[41] However, Lander J did not take the next step required by Clarke and consider whether those efforts constituted non-trivial comparative disadvantage in the sense discussed by Madgwick J. Had his Honour correctly identified the issue to be determined for the purposes of s6(c), it was open to him to have found that the appellant did not comply or was unable to comply with the condition or requirement for the purposes of s6(c).

F. Matters supporting the Commission's preferred construction of s6(c)

32. The approach the Commission contends for in relation to s6(c) is supported by rules of construction and a consideration of the objects and scheme of the DDA.

Indirect discrimination and 'less favourable treatment'

33. In Waters v Public Transport Corporation[42] the High Court discussed the principles underlying direct and indirect discrimination in the following terms:

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter...Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.[43]

34. Madgwick J's formulation of the test for ability to comply in Clarke appropriately recognised that the legislature, in enacting s6 of the DDA, was seeking to proscribe 'less favourable treatment' in the broader sense discussed by the High Court in Waters. As noted above, the objects in s3(a) indicate that the legislature intended that such treatment would be eliminated 'as far as possible'. Such an intention is also evident in the very wide definition of disability in s4(1) of the DDA,[44] which includes disabilities that are imputed to a person and functional disorders, such as an incapacity, or a diminished capacity, to control behaviour.[45] It would frustrate that legislative intention if applicants seeking to utilise s6 could be defeated on the basis that they do or are able to 'comply' with the relevant condition or requirement, where such 'compliance' results in their being treated less favourably (or subjected to a disadvantage of substance) as compared to people without the particular disability.

Beneficial approach to remedial legislation

35. It is trite to observe that remedial legislation such as the DDA, which aims to prevent discrimination and uphold equal opportunity, should be construed beneficially and not narrowly.[46] That rule of construction favours Madgwick J's approach to s6(c).

36. Courts also have a special responsibility to take account of and give effect to the objects and purposes of remedial legislation.[47] Those objects relevantly included the promotion of autonomy and self reliance on the part of people with disabilities. This is evident from the second reading speech where it was said that the DDA was 'essential' to:

...enable people with disabilities to participate in the economic, social and political spheres of the community and subsequently determine the direction of their own lives.[48]

37. It is contrary to the objects and purposes of the DDA that people with disabilities should be forced to choose between taking positive steps in an effort to lead an independent life and retaining their rights under the DDA. That would be the effect of Lander J's approach to s6(c).

Construction of s6(c) in light of s6(a) of the DDA

38. It is notable that paragraph (a) of s6 uses similar language to paragraph (c): the requirement or condition must be one 'with which a substantially higher proportion of persons without the disability comply or are able to comply'. The common wording in s6(a) and 6(c) strongly implies that a similar approach is to be taken to both elements.[49]

39. The nature of the comparison required by s6(a) was discussed by the Full Court in Clarke in the following terms:

Section 6(a) is satisfied if the requirement or condition is one with which a 'substantially higher proportion of persons without the disability comply or are able to comply'. This language implicitly requires a comparison to be made. Clearly enough, one comparator is a group of persons without the disability. The other comparator is not, however, specifically identified. But as Dawson J observed in Australian Iron & Steel v Banovic, at 187, a 'proportion must be a proportion of something'. This suggests that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person's ability to comply with the requirement or condition is addressed in s 6(c). In any event, it does not accord with the ordinary use of language to refer to the 'proportion' able to comply with a requirement in relation to only one person (original emphasis).

40. It has been observed that this element, which the applicant bears the onus of making out, potentially requires 'a complex, time consuming and undoubtedly expensive exercise in comparisons'.[50] In that regard, it is relevant to note that a number of state and federal sex discrimination cases have dealt with complex issues in relation to the identification of the two 'base groups' or 'pools'.[51]

41. If Lander J's approach to s6(c) were applied to 6(a), it would create considerable additional difficulty for potential applicants. An applicant would be required to identify the proportion of people who have the relevant disability who can 'cope' with the particular requirement or condition, which in turn would require consideration of matters such as possible family support and other forms of assistance for all members of the pool. This would create evidentiary difficulties for many applicants, potentially requiring them to deal with an insurmountable range of hypothetical fact situations and contingencies in the context of an element which already gives rise to considerable difficulty.

42. In contrast, Madgwick J's approach to compliance largely avoids that difficulty. That is because the potential multitude of methods of 'coping' can largely be excluded from consideration on the basis they involve disadvantage of some substance to the pool members and do not therefore constitute compliance for the purposes of s6(a).

Reasonableness element in s6(b)

43. Paragraph (b) of section 6 is also relevant to the construction of paragraph (c).

44. As noted above, the DDA provides for a range of statutory defences, which apply in particular circumstances. In s6(b), Parliament further circumscribed the limits of liability for indirect disability discrimination by requiring applicants to prove that the relevant condition or requirement was 'not reasonable'.[52] The factors that are to be considered in relation to that element were discussed by the Full Federal Court in Clarke:

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 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.[53]

45. The Full Court also observed that:

The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. As such 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; and
A degree of diffidence on the part of the Court will be appropriate when considering the actions of a respondent in respect of which there may be a division of opinion.[54]

46. Lander J had regard to those principles at [71]-[75] and his Honour's findings (which are not the subject of an appeal to this Court) appear at [786]-[803].

47. The Commission submits that, given the nature of the Court's inquiry into the issue of 'reasonableness' and the broad range of matters relevant to that question, Madgwick J's construction of s6(c) creates no practical difficulties nor does it do violence to the scheme of the Act. Reasonableness will continue to mark the outer limits of liability for indirect discrimination claims, allowing consideration of the legitimate interests of respondents as Parliament intended. In that regard, the following remarks of the English Court of Appeal in Meade-Hill and another v The British Council[55] usefully capture the approach taken by the Australian Parliament in the DDA:

[UK Sex Discrimination Acts] had an educative as well as a legislative purpose. Their objective was not merely to regulate behaviour, but also to influence social attitudes by achieving a greater awareness (especially in areas where discrimination is indirect and therefore not so readily apparent) of the inequalities of opportunity to which discrimination may lead. To that intent the concept of indirect discrimination was framed broadly--in language which casts the discriminatory net over a very wide area and gives it a fine mesh. The prevention of any unfairness or injustice being suffered as a result is achieved by giving equal breadth to the [equivalent of the reasonableness requirement], which exempts from unlawfulness any condition which (when the context is employment) the employer can show 'to be justifiable irrespective of the sex of the person to whom it is applied'.

Construction consistent with international human rights law

48. The DDA should also be construed consistently with the international human rights instruments which underpin the DDA, and human rights standards generally. It is an established general principle of construction that statutes are to be interpreted and applied so as to be in conformity and not in conflict with established rules of international law, as far as their language permits.[56]

49. It is also accepted that the meaning of provisions in a statute which implement a convention or conventions is to be ascertained by reference to the relevant provisions of that convention or those conventions.[57]

50. The DDA seeks to give effect to Australia's international legal obligations and internationally recognised standards in relation to people with disabilities.[58] This is made clear by s 12(8) of the DDA which sets out the basis and scope of the DDA's 'limited application' provisions (including, relevant to the present matter, ss 22 and 24):

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 the Convention;[59] or

(b) give effect to the [International] Covenant on Civil and Political Rights;[60] or

(d) relate to matters external to Australia; or

(e) relate to matters of international concern.

51. In the Second Reading Speech for the Disability Discrimination Bill 1992 (Cth), the Minister stated:

The Bill recognises that discrimination against people with disabilities is a matter of international concern. It is another significant step in fulfilling Australia's international obligations under a number of United Nations instruments. These include the International Labour Organisation Convention concerning discrimination in respect of employment and occupation; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and a number of related declarations.[62]

52. In addition, the Explanatory Memorandum explained the application of s 12 as follows:

This clause provides that the legislation is to apply throughout Australia. The provision is also designed to ensure that all possible Commonwealth Constitutional power is relied upon to support the various provisions of the Act.

In particular sub-clause (8) of this clause indicates that certain provisions of the legislation have effect in relation to discrimination against people with disabilities to the extent that the provisions implement Australian responsibilities under certain international instruments. Most notably these are the United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights and the International Labour Organisation's Convention Number 111 entitled Convention concerning Discrimination in Respect of Employment and Occupation.

....

It is also clear from a number of lesser international instruments that discrimination against people with a disability is a matter of concern to the international community generally. The limited application provisions apply to the extent of that international concern. The Declaration on the Rights of Disabled Persons, The Declarations on the Rights of Mentally Retarded Persons and The Declaration on the Rights of the Child are just some of the instruments which further indicate how discrimination against people with disabilities is a matter of international concern.

53. The Commission therefore submits that the Court may have regard to and should construe the DDA consistently with relevant international human rights instruments.

54. The International Covenant on Civil and Political Rights (ICCPR) requires Australia to proscribe discrimination on various grounds, including disability.[63] It has been held by the United Nations Human Rights Committee that this obligation includes the proscription of indirect discrimination. In determining whether a particular practice, measure, rule, action or condition constitutes indirect discrimination, the Committee considers:

whether the measure, rule, action or condition has a detrimental effect on the complainant;
whether that detrimental effect is felt exclusively or disproportionately by people having the relevant ground of discrimination; and
whether the relevant measure, rule, action or condition is based on objective and reasonable grounds.[64]

The Committee's jurisprudence has generally focused upon the last element (reasonable and objective grounds). [65]

55. As such, Australia is under an obligation to proscribe a broad range of 'detrimental effects' experienced disproportionately by people with disabilities, subject to the outer limits of reasonableness. The construction of s6 contended for by the Commission should be preferred as one which is consistent with that obligation. Section 6(c) should not be construed in a narrow or technical manner, as to do so would exclude from the coverage of the DDA many 'detrimental effects' impacting disproportionately upon people with disabilities which would violate their right to equality guaranteed by the ICCPR.

56. Australia is also obliged to take measures to ensure that people with disabilities are as self reliant as possible.[66] As noted above, the approach taken by Lander J actually discourages efforts to achieve self reliance and is therefore inconsistent with that obligation.

57. The Commission's preferred construction of s6(c) is also consistent with the following international law principles:

(a) disabled persons have the inherent right to respect for their human dignity.[67] As illustrated by Travers and Bynam, a literal or unduly narrow approach to s6(c) can infringe that right;

(b) every child has the right to education;[68]

(b) education shall exhibit the following interrelated and essential features;

(i) availability;

(ii) accessibility;

(iii) acceptability; and

(iv) adaptability.[69]

..................................

Craig Lenehan

Solicitor for Human Rights and Equal Opportunity Commission

Level 8, 133 Castlereagh St

Sydney NSW 2000

Tel: (02) 9284 9617

Fax: (02) 9284 9787

[1]United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534.

[2] Australian Railways Union v Victorian Railways Commission (1930) 44 CLR 319, 331 (Dixon J).

[3] Kruger v Commonwealth of Australia (1996) 3 Leg Rep 14 per Brennan CJ.

[4] Levy v State of Victoria (1997) 189 CLR 579, 603 (Brennan CJ).

[5] Ibid 604 (Brennan CJ).

[6] These include: employment: ss 15-21; education: s 22; 7 access to premises: s 23; provision of goods and services: s 24; accommodation: s 25; membership of clubs: s 27; sporting activities: s 28; and the administration of Commonwealth laws and programs: s 29.

[7] Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1995 (Vic); Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1984 (SA); Equal Opportunity Act 1984 (WA).

[8] Direct discrimination under s 5 of the DDA was comprehensively canvassed by the High Court in Purvis v State of New South Wales (Department of Education and Training) (2003) 202 ALR 133.

[9] The DDA also defines discrimination in relation to palliative and therapeutic devices and auxiliary aids (s 7), interpreters, readers and assistants (s 8) and guide dogs, hearing assistance dogs and trained animals (s 9).

[10] See Part 2, Division 5. An 'inherent requirements' defence applies to the field of the employment (s 15(4)(a)), commission agents (s 16(3)(a)), contract workers (s 17(2)(a)), partnerships (s 18(4)(a)), qualifying bodies (s 19(2) and employment agencies (s 21(2)). A range of other general exemptions are set out in Part 2, Division 5 of the DDA.

[11] The 'unjustifiable hardship' (s 11) defence operates for some but not all acts which may be unlawful: s 15(1)(b) and 2(c) by s 15(4) in employment; s 16(1)(b) and 2(c) by s 16(3) for commission agents; s 17(1)(b) by s 17(2) for contract workers; s 18(1)(a), 2(a), 3(b) by s 18(4) for partnerships; s 22(1)(a) by s 22(4) for education, s 23(2) access to premises; s 24(2) provision of goods, services and facilities; s 25(3) accommodation; s 27(2)(c) by s 27(3) for clubs and incorporated associations.

[12]Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [96] per McHugh and Kirby JJ.

[13]See s33 of the DDA.

[14]Note that the Disability Standards for Education 2005 include a more broadly applicable unjustifiable hardship defence than that contained in s22(4) of the DDA (para 10.2). This in effect rectifies the anomaly identified by McHugh and Kirby JJ in Purvis.

[15][1983] 2 AC 548, 565-66.

[16] See eg the Court of Appeal's decision in Mandla v Dowell Lee [1982] 3 All ER 1108 per Kerr LJ at 1123 and Watches of Switzerland v Savell [1983] IRLR 141 at 147. Compare with Price v Civil Service Commission [1978] ICR 27, which was approved by Lord Fraser in Mandla.

[17]Mandla at 565-6.

[18] Ibid.

[19]See for example: Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561; Travers v State of New South Wales [2000] FCA 1565; Bogle v Metropolitan Health Service Board (2000) EOC 93-069; Styles v Secretary of the Department of Foreign Affairs (1988) EOC 92-239 and Australian Iron and Steel v Banovic (1987) 168 CLR 165 at 197 per McHugh J.

[20]See Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at [51].

[22]See Travers v State of New South Wales [2000] FCA 1565 at [17].

[23]Bogle v Metropolitan Health Service Board (2000) EOC 93-069 at 74,227.

[24]See Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at [52].

[24]Bogle v Metropolitan Health Service Board (2000) EOC 93-069 at 74,224 and Access for All Alliance (Hervey Bay) v Hervey Bay City Council [2004] FMCA 915 at [9] and [12].

[25](1991) EOC 92-377.

[26]See at 78,604. Note that in Hussain v Midlands Cosmetic Sales PLC [2002] Emp LR 713, the UK Employment Appeal Tribunal suggested that evidence of factual compliance was decisive of the issue of ability to comply (at [33]). That decision involved a narrow reading of Mandla and is inconsistent with the approach of Australian courts and tribunals.

[27](1993) EOC 92-486 at 79,506.

[28] Ibid at 79,506.

[29][2000] FCA 1565.

[30]Ibid at [17]. See also, in relation to access to toilet facilities, Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915.

[31](2003) 202 ALR 340

[32](2003) 202 ALR 340, 352-53 [49].

[33]Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437 at 444.

[34](2003) 202 ALR 340, 352-53 [49].

[35] Catholic Education Office v Clarke (2004) 138 FCR 121 at [126] per Sackville and Stone JJ with whom Tamberlin J agreed.

[36][2004] FMCA 85

[37]See similarly Ball v Silver Top Taxi Service Ltd [2004] FMCA 967 at [69]-[70].

[38] [809], [812] and [815].

[39]See at paras [591]-[592].

[40]See Affidavit of Gail Smith, sworn 30 July 2003, para 40 at AB 77.

[41]See at [819].

[42](1991) 173 CLR 349.

[43]Waters v Public Transport Corporation (1991) 173 CLR 349 at 392 per Dawson and Toohey JJ. See also Mason CJ and Gaudron J at 358-9.

[44] Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at [52].

[45] Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [11] per Gleeson CJ; [61]-[80] per McHugh and Kirby JJ and [209]-[212] per Gummow, Hayne and Heydon JJ.

[46] Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J with whom Deane J agreed), 372 (Brennan J), 394 (Dawson and Toohey JJ), 406-407 (McHugh J); Australian Iron and Steel v Banovic (1989) 168 CLR 165, 196-7 (McHugh J); Qantas Airways Ltd v Christie (1998) 193 CLR 280, 331 (Kirby J).

[47] Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J); IW v City of Perth (1997) 191 CLR 1, 14 (Brennan CJ and McHugh J), 22-23 (Gaudron J), 27 (Toohey), 39 and 41-42 (Gummow J) 58 (Kirby J); X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J). See also s 15AA of the Acts Interpretation Act 1901 (Cth).

[48]Commonwealth Parliamentary Debates, House of Representatives, 26 May 1992, 2755 (Brian Howe, Minister for Housing, Local Government and Community Services).

[49]McHugh J suggested that this was so in Australian Iron and Steel v Banovic (1987) 168 CLR 165 at 197. See also Bogle v Metropolitan Health Service Board (2000) EOC 93-069 at 74,223-74,224.

[50]Minns v State of NSW [2002] FMCA 60 at [253].

[51]See eg Australian Iron and Steel v Banovic (1987) 168 CLR 165; Commonwealth Bank v HREOC (1997) 80 FCR 78 and Bogle v Metropolitan Health Service Board (2002) EOC 93-069.

[52]See s6(b) and Catholic Education Office v Clarke [2004] FCAFC 197 at [115].

[53]Catholic Education Office v Clarke [2004] FCAFC 197 at [115].

[54]Ibid.

[55][1996] 1 All ER 79 at 92 per Waite LJ.

[56]Jumbunna Coal Mine NL v Victorian Coalminers' Association (1908) 6 CLR 309, 363 (O'Connor J); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J); Kartinyeri v Commonwealth (1998) 195 CLR 337, 384 [97] (Gummow and Hayne JJ).

[57]Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 264-265 (Brennan J); Gerhardy v Brown (1985) 159 CLR 70, 124 (Brennan J); Qantas v Christie (1998) 193 CLR 280, 303 (McHugh J), 332-3 (Kirby J).

[58]Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, 103-104 (McHugh, Kirby JJ), 153-154 (Gummow, Hayne, Heydon JJ).

[59]Discrimination (Employment and Occupation) Convention (ILO No 111), date of adoption 25 June 1958, 362 UNTS 31 (entered into force 15 June 1960; entered into force for Australia 15 June 1974), a copy of which is set out in Schedule 1 of the HREOC Act: s 4 DDA.

[60]Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976; entered into force for Australia 13 November 1980).

[61]Opened for signature 19 December 1966, 999 UNTS 3 (entered into force 3 January 1976; entered into force for Australia 10 March 1976).

[62]Commonwealth Parliamentary Debates, House of Representatives, 26 May 1992, 2751 (Brian Howe, Minister for Housing, Local Government and Community Services).

[63] See art 26 read with art 2(2). In Concluding Observations on Ireland (2000) UN soc A/55/40 para 422-451, para 29(e), the United Nations Human Rights Committee observed that disability fell within the term 'other status' for the purposes of article 26 of the ICCPR.

[64]Althammer v Austria (998/101)

[65]Althammer v Austria (998/101); F v Australia 832/1998 and Derksen v Netherlands 976/2001.

[66]See Declaration on the Rights of Disabled Persons, art 5 and Convention on the Rights of the Child, art 23(1).

[67]Declaration on the Rights of Disabled Persons, art 3.

[68]International Covenant on Economic, Social and Cultural Rights art 13, Convention on the Rights of the Child arts 28, 29.

[69]Committee on Economic, Social and Cultural Rights, General Comment No 13, The Right to Education, UN Doc E/C12/1999/10 (1999), [6]. See also Katarina Tomaševski, Special Rapporteur on the Right to Education, Right to Education Primer No 3, 'Human rights obligations: making education available, accessible, acceptable and adaptable'(2001) 13-15, 31-33.

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March 20, 2009

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