Notice of application for exemption under the Disability Discrimination Act: Powers under Firearms Act 1973 (WA)

See now also notice of decision

Contents

Call for submissionsOverviewOptions for Commission decisionIssuesTemporariness or permanence of need for exemptionRelevance of public health and safety issues to exemption decisionsDoes any substantial issue of unlawfulness under the DDA ariseServicesExercise of powers under sections 11 and 20 as servicesActions of medical practitioners under section 23BQualifying bodiesIs there any discretionary act to complain ofDecisions of Police CommissionerActions by medical practitionersConsideration of public safety issues under DDA provisionsUnjustifiable hardship defenceInherent requirementsAlternative remedies provision

Call for submissions

The Commissioner of Police for Western Australia has requested an exemption under section 55 of the DDA, for a period of five years, regarding exercise of powers under the Firearms Act 1973 (WA).

Section 55 of the Disability Discrimination Act (DDA) gives the Human Rights and Equal Opportunity Commission the power to grant temporary exemptions from provisions of the DDA. Exemptions may be granted for up to five years at a time. The effect of an exemption is that actions or circumstances covered by the exemption are not unlawful under the DDA while the exemption remains in force.

In keeping with its policy on exemption applications under the DDA the Commission is seeking public comment before making a decision on this application. This paper presents for comment issues and options for a proposed Commission decision.

As well as assisting in determination of this exemption application, comments on this point may assist governments and others concerned in deciding whether prescription of the Firearms Act 1973 (WA) and similar legislation in other jurisdictions for the purposes of DDA section 47(2) would be effective and appropriate as an alternative or additional approach to an application for temporary exemption .

Comments should be received by the Commission by 28 April 2000, preferably by e-mail to disability@humanrights.gov.au . Comments may also be submitted by mail to Disability Rights Unit, Human Rights and Equal Opportunity Commission, GPO Box 5218 Sydney 1042.

The Commission will post comments to its web site as they are received, except where and to the extent that confidentiality is specifically requested.

Overview

The Firearms Act 1973 deals with control and regulation of firearms and ammunition in Western Australia, including issue, renewal and revocation of permits, approvals or licenses to person possessing, using, dealing with or manufacturing firearms and ammunition.

Section 11 sets out and limits the circumstances in which the Commissioner (or delegate) can grant an approval or issue a permit or license, and includes the following provisions.

(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that (a) to do so would be contrary to section 11A or regulations under section 11B or 11C; (b) it is not desirable in the interests of public safety; or (c) the person is not a fit and proper person to hold the approval, permit, or licence.

(2) Where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold an approval, permit, or licence.

(3) The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner is satisfied that (a) at any time within the period of 5 years before the person applies for the approval, permit or licence (i) the person was convicted of an offence involving assault with a weapon; (ii) the person was convicted of an offence involving violence; (iii) the person was convicted of any offence against this Act; or (iv) a violence restraining order was made against the person, whether in this State or in any other place; or (b) the person fails to meet standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence.

Section 20 provides for revocation of approvals, permits or licenses in line with the grounds provided in section 11.

Section 23B provides that

(1)If a medical practitioner is of the opinion that (a) because of the patient's physical, mental, or emotional condition, it is not in the person's interest or not in the public interest that the person possess any firearm or ammunition to which the patient is believed to have access; or (b) a person is seeking or has sought medical assistance for an injury in the infliction of which a firearm or ammunition is believed to have been involved, nothing prevents the medical practitioner in good faith from informing the Commissioner of that opinion.

(2) This section has effect despite any duty of confidentiality, and nothing done by a medical practitioner in good faith in accordance with this section gives rise to a criminal or civil action or remedy.

The application seeks an exemption regarding discretionary powers under sections 11, 20 and 23B of the Firearms Act in the interests of public safety.

Exercise of the powers under these sections may involve discrimination in provision of services under section 24 of the DDA. Exercise of powers by the Police Commissioner under sections 11 and 23B may also involve discrimination under DDA section 19 regarding occupational qualifying bodies where the license, permit or approval is sought for occupational purposes.

The Police Commissioner and medical practitioners have defences available under the DDA by reference to concepts of unjustifiable hardship (under section 24) and inherent requirements (under section 19). The effect of these defences in the Commission's view is that if actions taken under the Firearms Act are taken reasonably, no unlawful act will be found, even if no exemption is granted.

Further, decisions by the Police Commissioner are subject to an appeal procedure under the Firearms Act and it could be argued in response to a complaint that the Commission should exercise its power to decline to deal with complaints where there is a more appropriate alternative remedy available.

An exemption would remove any doubt about the lawfulness, for the purposes of the DDA, of reasonable actions under the Firearms Act. It would also (while in force) remove the ability to have any unreasonably discriminatory decisions reviewed under the DDA, although the appeal procedure under the Firearms Act would remain available. Complaints under the local Equal Opportunity Act (W.A.) might also remain available, unless a comparable exemption were obtained from the Equal Opportunity Tribunal under that Act (or unless the federal exemption were regarded as excluding the operation of the State legislation pursuant to section 109 of the Constitution).

Options for Commission decision

Comments would be welcome on the following options:

1. Grant exemption, on condition that Police Commissioner include in his annual report a report on decisions under the exempted provisions and on operation of the appeal procedure, on grounds that

• granting an exemption as applied for could prevent uncertainty about possible liability under the DDA from hindering police and medical practitioners performing public duties to protect public safety
• any unjustified refusals of licenses, approvals or permits remain reviewable through the appeal procedure under the Firearms Act procedures under the Firearms Act are more appropriate for determining issues of access to firearms than complaint procedures under the DDA and this should be recognised through an exemption rather than only on a case by case basis.

2. Refuse application for exemption on grounds that

• an exemption has not been shown to be required, since complaints regarding legitimate decisions and actions can be expected to be declined as not unlawful, or as more appropriately dealt with through the appeal procedure under the Firearms Act
• it is appropriate for any unjustified license refusals not adequately remedied through this appeal procedure to remain reviewable under the DDA
• it is not appropriate to use the temporary exemption procedure indefinitely and the application gives no indication that the position will be any different in future.

3. Grant exemption only regarding actions by medical practitioners under Firearms Act section 23B; refuse regarding actions by Police Commissioner as indicated in option 2.

Issues

The following issues appear to be relevant to the Commission's consideration of this application, in determining whether an exemption should be refused, or granted with or without conditions. Comments on these, or any additional issues which should be considered, would be welcome.

• Should the Commission be prepared to grant a temporary exemption in circumstances where the reasons advanced for the exemption do not appear temporary?
• What weight should the Commission give safety issues in considering an exemption?
• Does any substantial issue of unlawfulness under the DDA arise in this case so as to require consideration of an exemption?
• In particular should the powers under sections 11 and 20 of the Firearms Act be regarded as non-discretionary such that DDA complaints would be declined?
• Does the DDA provide, in its substantive and procedural provisions, for appropriate consideration of public safety issues without an exemption?
• In particular is the unjustifiable hardship exception regarding provision of services relevant and sufficient?

Temporariness or permanence of need for exemption

Exemptions granted by the Commission to date have been intended and designed to promote these objects by allowing persons and organisations with obligations under the Act to implement transitional measures to achieve equality over time.

The present application is different in kind. It does not seek time to change infrastructure or practices to conform to the DDA. If the restrictions on access to firearms which the Police Commissioner seeks to protect by this exemption application are justifiable now presumably they will also be justifiable in five years time at the conclusion of the requested exemption, although some of the need perceived for this exemption might be modified either with experience during the period of operation of an exemption, or by other legislative or regulatory developments in the interim.

To date the Commission has not favoured using the DDA exemption procedure simply to certify that an action, practice or state of affairs, although discriminatory under the legislation, need not be altered. Reasons which can be advanced against using the exemption power as a certifying power have included:

• the formal argument that the power is one of exempting otherwise unlawful acts, not certifying lawfulness
• questions whether certification in this way could inappropriately deprive persons aggrieved by discrimination of access to justice, since their circumstances might not be known in advance in the context of making an exemption decision
• questions whether an administrative exemption power should be used in effect to amend the legislation to conform with the administering agency's or other views of what Parliament should have provided but did not
• the argument identified by a number of agencies administering similar powers that the temporary nature of exemption powers indicates that they should be used to manage temporary and transitional conflicts between discriminatory present realities and non-discriminatory legal requirements, rather than permanent states of affairs.

There is, however, no barrier within the DDA to repeated applications for exemption being made, indefinitely into the future so long as an applicant sees need for or benefit in this. It does not appear open to the Commission to refuse to consider an application for temporary exemption simply because it may be followed by another application in future. The issue is whether this is a proper case for exercising the power to exempt.

Relevance of public health and safety issues to exemption decisions

The Commission's policy on DDA exemptions notes that administrative law principles require that the power of the Commission under the DDA to grant exemptions should be exercised consistently with the objects of the DDA. These objects (set out in section 3 of the DDA) are to eliminate, as far as possible, discrimination against persons on the ground of disability (in certain areas); 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 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.

As noted above, unlike previous exemptions granted by the Commission under the DDA this application does not contemplate that the practices concerned need to be changed over time to conform more closely to the DDA or to better promote its objects, but rather more simply that the DDA should not apply to the actions concerned.

At first sight it is not easy to see how such an exemption would promote or be consistent with the objects of the Act.

Exemptions which simply suspend the operation of discrimination legislation have been more common, and are more readily seen as promoting the objects of that legislation, in cases where a beneficial measure for a disadvantaged group intended to be benefited by the legislation might otherwise be struck down by defective drafting or mechanical interpretation of that legislation - for example exemptions to protect facilities for women from being rendered unlawful by sex discrimination legislation.

However, the objects of the DDA do refer to elimination of discrimination "as far as possible", contemplating some need for definition from time to time of what may be "possible", including through the exemption mechanism.

It is also necessary to refer to section 10A(1) of the Human Rights and Equal Opportunity Commission Act provides:

It is the duty of the Commission to ensure that the functions of the Commission under this or any other Act are performed ... with regard for . the principle that every person is free and equal in dignity and rights .

The Commission is therefore required to have regard to the rights of all members of the Australian community where relevant to exercise of its functions rather than only to those of immediate parties to a complaint, exemption application or other matter.

Clearly, recognition in terms of the objects of the DDA that "persons with disabilities have the same rights to equality before the law as the rest of the community" does not mean that a person with a disability should have any more right to unsafe access to firearms than other members of the community.

It does not therefore appear impermissibly inconsistent with the objects of the DDA to grant an exemption as requested in this case - if such an exemption is shown to be justified.

Does any substantial issue of unlawfulness under the DDA arise

It would be unnecessary and improper for the Commission to grant an exemption and seek to impose conditions regarding conduct to which the DDA simply does not apply.

More broadly, it might be argued that exemptions can only be granted regarding what would otherwise be unlawful acts, and that the Commission should therefore refuse an exemption if it thinks the acts concerned are not or would not be unlawful. However, the Commission's practice to date (under the DDA) has not been to require that an applicant for exemption should, if the exemption is not granted, be certain to be acting unlawfully under the DDA. Otherwise, there would be the result that the less justifiable (or more unreasonably discriminatory) the applicant's position under the DDA, the better their prospects would be of being granted an exemption. This would be perverse both in common sense and considering the requirement that the exemption power (like any other statutory power) should be used consistent with and as a means of promoting the objects of the legislation.

Exemptions have been granted by the Commission where, although the applicant might have good prospects of successfully defending a complaint by reference to unjustifiable hardship factors, there is also a substantial prospect that the actions concerned could be found unlawful. In order to address this prospect and remove the uncertainty of their legal position and the need to spend time and other resources in defending complaints, applicants in some cases have been prepared to agree to and implement measures which promote the objects of the legislation. The decision of the Commission regarding accessibility of the Melbourne tram system provides the most detailed example in this respect.

For an exemption to be considered, however, there must be some provision or provisions of the DDA which could apply to the actions concerned - not least so that any exemption can specify the provisions to which it applies.

Services

The DDA (section 24) applies to discrimination in the provision of services, including services of a kind provided by government and services provided by a profession (such as the medical profession).

Exercise of powers under sections 11 and 20 as services

There might appear to be considerable substance in a distinction between provision of services and making of a decision under a statutory discretion. Clearly it is unrealistic to describe a person as being provided with a "service" by being arrested or sentenced under the criminal law for example. On the other hand, accepting such a distinction in all cases could substantially restrict the effectiveness of the DDA and similar legislation in reviewing discriminatory actions of Federal, State, and local government officials, since most if not all government decisions in this country are made under law (whether more or less directly).

To date the Commission has accepted complaints regarding driver licensing as being covered by the DDA, although these have generally been declined having regard to availability of remedies other than the DDA.

The meaning of "services" in the similar context of the Equal Opportunity Act W.A. has been extensively considered by the High Court in IW v City of Perth and others (31 July 1997),

Chief Justice Brennan and Justice McHugh J commented as follows:

The term "services" has a wide meaning. The Macquarie Dictionary relevantly defines it to include "an act of helpful activity"; "the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying or the supplier of water, gas, or the like to the public"; and "the duty or work of public servants". But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA)

. 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 where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest.

However, Justices Dawson and Gaudron, Toohey, Gummow, and Kirby took the view that there had been no error in the Equal Opportunity Tribunal deciding that making a decision in exercise of the statutory discretion concerned could be a service.

Justices Dawson and Gaudron commented that:

"services", a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context. . Within the context of s 66K(1), a person who provides a service by exercising a discretion to grant or withhold approval may discriminate against a person in the exercise of that discretion by refusing to exercise it at all (par (a)), by imposing terms and conditions (par (b)), or by exercising it in a particular manner (par (c)). Subject to the question whether the appellant is an aggrieved person, it may be that a case can be made that, in refusing PLWA's application, the City of Perth exercised its discretion in a discriminatory manner and, thus, infringed s 66K(1)(c) of the Act.

(The complainants in this case failed on other grounds, because of issues of standing and because the appeal had been pursued incorrectly as if service had been refused, which a majority of justices found it had not, rather than regarding the manner in which services had been provided.)

On this basis, it would at least appear open to a body dealing with a complaint to find that the Commissioner of Police or delegate is providing a service in considering or determining applications for licenses, permits or approvals.

Actions of medical practitioners under section 23B

No issue under the DDA appears to arise from a medical practitioner notifying police that an injury has arisen from use of firearms: accepting that a person's injury and need for medical treatment may constitute a disability, any discrimination is not because of this but between people whose injury is and is not apparently caused by a firearm - which has nothing to do with the DDA.

However, a medical practitioner notifying police that a patient should not have access to firearms because of physical, mental, or emotional condition may be argued to be treating that patient less favourably in the provision of medical services than patients not having or being in the same condition - at least where the notification is made in the interests of public safety rather than of the patient's own health. Any less favourable treatment would fairly clearly be because of the person's disability where the "condition" concerned is a physical disability or mental illness.

Is there any discretionary act to complain of

Where the substance of a complaint is the operation of a provision of a valid and applicable law which leaves the respondent no discretion, the Commission will regard the complaint as not involving any unlawful act by the respondent: summary of decline decision 9 June 1999

On a number of occasions the Commission's President has upheld decisions by the Disability Discrimination Commissioner that a complaint of discrimination cannot be maintained where the person doing the act complained of had no power or discretion to act otherwise. Several of these decisions in the area of administration of Commonwealth laws and programs are summarised on the Commission's internet site.

Decisions of Police Commissioner

Section 11 of the Firearms Act commences by stating that

The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that .

Once the Commissioner or delegate has the relevant opinion, he or she simply lacks any power to grant an approval, permit or licence. It could be argued there is then no discretionary act in refusing, and hence no discriminatory act to which the DDA may apply, so far as actions under sections 11 or 20 of the Firearms Act are concerned.

This interpretation could be seen as artificial and as undermining the effectiveness of protection offered by the DDA, if discretionary decisions can be removed from review under the DDA by being cast in the form of a discretionary process of forming an opinion on which the law then operates.

On the other hand, while the DDA must be interpreted consistently with its own objects as far as possible, there is no mandate for the Commission or the courts to interpret other legislation such as the Firearms Act as favourably for the objects of the DDA as possible, rather than in accordance with the objects of the Firearms Act.

The Commission seeks comments on this issue.

As well as assisting in determination of this exemption application, comments on this point may assist governments and others concerned in deciding whether prescription of the Firearms Act WA and similar legislation in other jurisdictions for the purposes of DDA section 47 would be effective and appropriate.

Actions by medical practitioners

Section 23B of the Firearms Act 1973 (WA) states that "nothing prevents" the medical practitioner from notifying police of an opinion that a patient should not have access to firearms. It does not provide any mandatory duty to notify so as to provide a medical practitioner with no discretion in the matter. Such a mandatory provision would protect medical practitioners from liability under the DDA if it has the effect as interpreted to date by the Commission, and more certainly still if such a provision were prescribed for the purposes of DDA section 47(2) (since this would exclude any possibility of the Firearms Act provision being found inoperative pursuant to section 109 of the Constitution).

However, there is no such mandatory provision and the statement in the Firearms Act excluding civil liability is obviously not effective in itself to exclude any liability that might arise under Federal law (since State legislatures lack capacity to provide unilaterally that Federal remedies shall not apply).

Qualifying bodies

Whether or not exercise of the powers under sections 11 and 20 of the Firearms Act involves provision of services, the DDA will apply in those instances where a person seeks a license, permit or approval for occupational purposes. Section 19 of the DDA provides that it is unlawful for

an authority or body empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate on grounds of disability

(a) by refusing or failing to confer, renew or extend the authorisation or qualification; or

(b) in the terms or conditions on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification; or

(c) by revoking or withdrawing the authorisation or qualification or varying the terms or the conditions upon which it is held.

This is subject to the proviso that any discrimination in this area is not unlawful if the person because of his or her disability would be unable to carry out the inherent requirements of the profession, trade or occupation. Whether this proviso gives sufficient scope for proper exercise of the powers under the Firearms Act without an exemption is discussed below.

Consideration of public safety issues under DDA provisions

In HREOC v Mt Isa Mines the Full Federal Court emphasised that discrimination legislation was relevant to regulatory bodies responsible for health and safety although this should not lead them to abrogate their own function or in effect delegate their responsibility to bodies administering discrimination law.

Similarly, issues of public health and safety are relevant in the administration of a number of provisions of the DDA. Whether these provisions provide appropriate substantive coverage of these issues in all respects, and whether it is appropriate to leave these issues to determination through the complaint process through the Commission and the courts rather than through the exemption process or through prescription of relevant laws under DDA section 47 requires more detailed consideration.

Unjustifiable hardship defence

Section 24 of the DDA provides that it is not unlawful to discriminate against a person in provision of goods, services or facilities 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.

Although this provision refers only to hardship imposed on the provider, section 11 specifies that decisions regarding unjustifiable hardship should take into account benefit and detriment to any person affected. It thus appears that it would be open to the Police Commissioner or to a medical practitioner acting under the Firearms Act to raise risks to public safety in the context of an unjustifiable hardship defence to a complaint.

This provision however may not be regarded as sufficiently specific to provide appropriate protection for legitimate decisions and actions under the Firearms Act.

Inherent requirements

As noted, it is not unlawful for a body issuing an occupational qualification to discriminate where the person because of disability is unable to perform the inherent requirements of the position concerned.

In X v The Commonwealth (2 December 1999) all members of the Court emphasised that the inherent requirements of a job are not restricted to performance of the physical tasks involved. Justice McHugh commented that

It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context.

The ability to work safely (that is, without unreasonable risks to others) has been previously noted by the Commission as an inherent requirement: see Woodhouse v Wood Coffill Funerals (Commissioner Innes) and in the Commission's published Frequently Asked Questions on employment.

In X v the Commonwealth Gummow and Hayne JJ noted that:

deciding what is a "reasonable" degree of risk to others . will present difficult questions of judgment.

For the purposes of this exemption application, an important question is, who should be making the judgment of when an unreasonable risk is presented by someone having access - or, more precisely, how closely reviewable under the DDA these judgments should be.

Alternative remedies provision

The DDA provides for the Disability Discrimination Commissioner to decline to investigate complaints on a number of grounds, including where the Commissioner thinks that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available. Summaries of decisions on this and related grounds are available on the Commission's web site including the following example:

Refusal of drivers licence already considered by court

A man with a disability affecting his balance and communication complained that he had been discriminated against when the NSW Roads and Traffic Authority refused to grant him a licence or permit him to take further driving tests unless there was medical evidence of improvement in his condition. This occurred after accidents and after driving tests where his driving was assessed as of a poor and dangerous standard. The Commissioner declined the complaint, on the basis that there had been no unlawful discrimination since any condition or requirement applied should be considered reasonable in the interest of public safety and since the matter had already been adequately dealt with in an appeal to the Local Court as provided for under the Roads and Traffic Act. The President confirmed the decision to decline the complaint, on the basis that the matter had been adequately dealt with by the court. She noted that it would be inappropriate for the Commission to review the decision of a court which was in effect what was being sought in this case (1999).

Section 22 of the Firearms Act provides for appeals from decisions of the Police Commissioner to a magistrate or to a firearms appeal tribunal. The Commission would necessarily have regard to this in deciding whether to deal with complaints in this area.

Possible discrimination by medical practitioners in disclosing information and opinion on patients to the Police Commissioner could also be found to be more appropriately dealt with by bodies specifically established to monitor delivery of medical services, as the Commission has found in a number of medical services complaints previously.

The power of the Commission to decline to deal with complaints because there is another more appropriate remedy available may be seen as a reason why an exemption is not required - since the Commission can decide not to intervene unless it appears that alternative remedies are not functioning appropriately. Alternatively it could be seen as a reason to grant the exemption - since the terms of an exemption can be set so as to permit monitoring of how well other remedies are functioning.