3.1 It has long been recognised that a fundamental principle of democratic societies is that all citizens are equal legally and politically and should be treated equally before the law. However, in a world where human beings differ because of physical, cultural, social and innumerable other factors, discrimination, including exclusion and subordination, has been the historical response to encounters with the “other”. Thus, in its pejorative sense, discrimination is basically the act of making prejudicial distinctions among individuals or groups by taking irrelevant matters into consideration resulting in unequal treatment. Such discrimination found early expression in Plato’s Republic and throughout the centuries that followed.

3.2 Laws prohibiting discrimination are designed to give effect to one facet of the basic philosophical principle, first expressed in the Universal Declaration of Human Rights (“UDHR”) and passed by the United Nations General Assembly in 1948, that “all humans are born free and equal in dignity and rights”.¹ That principle is also reflected in the International Covenant on Civil and Political Rights (“ICCPR”) which declares that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law”.² In both the UDHR and the ICCPR the prohibited distinctions are defined as including “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.³

3.3 These broad principles were given specific application in relation to the Convention on the Elimination of all forms of Racial Discrimination (“CERD”)⁴ and in relation to the Convention on the Elimination on all forms of Discrimination Against Women (“CEDAW”).⁵ The area in which CERD operates is defined as that of “human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. In CEDAW, the area is defined as “human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.⁶ Other conventions, such as the Discrimination (Employment and Occupation) Convention 1958 (“International Labour Convention 111”) concerning discrimination in respect of employment and occupation, are applicable only in particular areas, in that case the area of “employment or occupation”.

General features of anti-discrimination legislation

Discrimination defined as direct or indirect

3.4 The general features of anti-discrimination laws are similar to the Anti-Discrimination Act 1977 (NSW) (“ADA”) and prohibit direct and indirect discrimination.⁷ Under the ADA, direct discrimination results from less favourable treatment in comparison with a real or hypothetical comparator from the mainstream group in the same or similar circumstances on a prohibited ground. Indirect discrimination results where there is a requirement that appears to be neutral and fair, but which actually impacts disproportionately on one individual or group as compared with another (and the requirement or condition is not reasonable in the circumstances). The two tests have significantly different criteria.⁸ As one writer noted, the distinction between the two is in “how the practice or policy is identified as being discriminatory. Does it treat someone less favourably directly by reference to their status or indirectly by its impact on persons of that status?”.⁹ The main object of this chapter is to review and evaluate the current definition of discrimination and its capacity to fulfil the objects of the legislation.

Discrimination identified by grounds, areas and exceptions

3.5 In Australia, all anti-discrimination legislation is structured so as to prohibit such discrimination on the basis of nominated grounds, in specific areas subject to particular exceptions, although the Racial Discrimination Act 1975 (Cth) (“RDA”) does contain a broad general prohibition against discrimination. The operation of anti-discrimination principles, as introduced into Australian law, has been described by Justice Gaudron of the High Court in the following terms:

Where protection is given by anti-discrimination legislation, the legislation usually proceeds by reference to an unexpressed declaration that certain characteristics are irrelevant within the areas in which discrimination is proscribed. Even so, the legislation frequently allows for an exception in cases where the characteristic has a relevant bearing on the matter in issue. Thus, for example, the Anti-Discrimination Act 1977 (NSW), whilst proscribing discrimination in employment on the grounds of race and sex, allows in s 14 and 31 that discrimination is not unlawful if sex or race is a genuine occupational qualification.¹⁰

3.7 In Chapter Four, the Commission identifies the areas in which the prohibition should apply, taking as a basic precept the concept identified in CERD that prohibitions should extend to all fields of “public life”. That is not to assume that people should not be protected from discriminatory treatment in the areas of private life, nor that the distinction is necessarily one which is easily drawn. These ideas will be elucidated in the next chapter.

3.8 Depending upon the precision with which one identifies the area of operation of a particular practice or activity, relevant and irrelevant considerations may be defined with varying levels of particularity. However, for present purposes, the underlying policy of anti-discrimination laws may be satisfied if one identifies what are generally accepted as basic human rights and fundamental freedoms. By analogy with principles which have been developed in relation to refugee law, those may be defined as, in each case, “a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed.”¹¹ The grounds which may properly be said to give rise to irrelevant considerations for the purposes of discrimination law are identified in Chapter Five.

Universal approach: protection not limited to disadvantaged groups

3.9 The ADA presently provides protection from discrimination in relation to most grounds on the basis of neutrality. In other words, persons of both genders, all races and all forms of marital status are treated equally. The ADA is not limited to protecting particular disadvantaged groups against the dominant or more powerful groups in society. Were it otherwise, it might be argued that discrimination against women should be prohibited, but not discrimination against men.¹² That argument has some respectability in that there is an international Convention which is designed to protect women but not men. Similarly, one might identify particular racial groups in the community which may deserve protection, and exclude other dominant groups, such as Anglo-Saxons or Anglo-Celts.

3.10 There are two criticisms which may be levelled at the current approach. First, it may be argued that providing universal protection tends to camouflage the extent to which common social values reflect the values of the dominant group. There is a body of feminist literature which sets out to demonstrate this point.¹³ Secondly, there are circumstances in which the ADA is directed towards protection of a particular class whose members may require differential treatment in order to be treated equally. This is true in relation to gay men and lesbians, transgender people and people with disabilities.

3.11 More generally, the Commission does not consider it practical or appropriate in modern Australian society to seek to identify other disadvantaged groups and limit the protection of the ADA accordingly. Although it may be readily conceded that Indigenous people generally are a disadvantaged group in modern society, there are an increasing number of Indigenous people who would not fall within that classification and who might find such a legal classification offensive. Indeed, the existence of such a classification might have a socially counter-productive effect. Similarly, many women would find it invidious to be classified as a disadvantaged group. The closer a society comes to an ideal of equality of opportunity, the less appropriate such classifications become.

3.12 It therefore seems appropriate, as a general principle, to maintain the universal approach adopted by the ADA and avoid any general attempt to limit its operation to the protection of identified disadvantaged groups. However, this conclusion should not in itself be treated as an absolute stance. First, although it suggests a formal equality model, it is qualified by recognition of the need to take account of difference, where difference is relevant. In particular areas, there may well be reasonable arguments in favour of maintaining the protection for one group where there is little or no history of the other group being discriminated against. As already noted, these arguments will be considered in relation to the question of sexuality. Secondly, it is important to allow for special measures which may be designed to alleviate the circumstances of disadvantaged groups where the circumstances of one group justify significantly different treatment which benefits that group. This issue is discussed below¹⁴ and in more detail in Chapter Six in relation to the formulation of the special measures provision.¹⁵

Generalised approach to all grounds of discrimination

3.13 The ADA presently approaches the concept of discrimination on the basis that the defined concept is applicable to all grounds. In practice, some modification of this principle is necessary in relation to disability, family responsibilities, religion and pregnancy, where characteristics can be relevant to decisions made. For instance, in some circumstances, disability is a totally irrelevant consideration, and the refusal to act appropriately in relation to people with disabilities is a reflection of prejudice rather than a rational response to their disability. Nevertheless, it is obvious that, in some circumstances, a disability can be a relevant consideration. The ADA recognises that fact and seeks to ensure that, so far as possible, the adverse impacts of a disability are minimised. In such instances, it is important that the decision maker does not give inappropriate emphasis to the prescribed characteristic and, in addition, that the decision maker must also appropriately evaluate alterations to its requirements or practices which are reasonable in the circumstances. This approach is commonly referred to as the “reasonable accommodation” approach which currently applies in relation to the ground of disability. However, the Commission proposes some modification to the current approach and extension to other selected grounds. This is an issue of general importance which is addressed below.¹⁶

THE DEFINITION OF DISCRIMINATION

Formal or substantive equality

3.14 Against this background, it is necessary to return to the concept of discrimination as involving an unexpressed declaration that identified characteristics are irrelevant. Stated in this bald manner, anti-discrimination laws might be said to pursue what is sometimes called “formal equality”. The yardstick of formal equality is based on the Aristotelian notion of equality which uses the comparability model, that is, that all people are equal and must be treated similarly in similar circumstances. It does not recognise any differences between people.

3.15 Substantive equality on the other hand, does not require that all persons be treated identically. It seeks genuine equality and takes account of, and makes allowances for, factors such as social and historical disadvantage and individual and group characteristics which may inhibit complete societal participation. It has the potential to reverse historical disadvantage, whereas formal equality may only achieve the removal of formal barriers. However, its practical implementation may be more difficult.

3.16 To return to the exegesis of Justice Gaudron, it is important to note that the notion that anti-discrimination laws pursue formal equality may be simplistic. Her Honour continued from the passage quoted above in the following terms:

The framework of anti-discrimination legislation has, to a considerable extent, shaped our understanding of what is involved in discrimination. Because most anti-discrimination legislation tends to proceed by reference to an unexpressed declaration that a particular characteristic is irrelevant, it is largely unnecessary to note that discrimination is confined to different treatment that is not appropriate to a relevant difference. It is often equally unnecessary to note that, if there is a relevant difference, a failure to accord different treatment appropriate to that difference, also constitutes discrimination.¹⁷

... the principle of equality before the law ... means ... relative equality, namely the principle to treat equally what are equal and unequally what are unequal ... To treat unequal matters differently according to their inequality is not only permitted but required. The issue is whether the difference exists.¹⁸

Material discrimination would consist in treating either similar situations differently or different situations identically.¹⁹

All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination against equals only and not as taking away from the State the power to classify persons for the purpose of legislation.²⁰

(1) that the classification must be founded on an intelligible differentia which distinguishes those which are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disabilities.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

3.23 In relation to the application of the Charter in circumstances where differential treatment is required, reference should be made to the recent Canadian Supreme Court decision in Eldridge v British Columbia (Attorney General).²⁵ In that case, the Supreme Court of Canada upheld a complaint brought by three people who were born deaf that the failure to provide hospital services and medical care with interpreters able to communicate in sign language was a contravention of their equal protection rights. It should be noted that, under the Charter, the infringement of a right guaranteed by s 15 is not necessarily an end of the matter: the Government may nevertheless seek to establish that what it has done provides a reasonable limit which can be “demonstrably justified in a free and democratic society”.²⁶ For present purposes, the case provides a useful illustration of the application of the Charter to the differential circumstances of those without language impairment and those born deaf. The Court, in the judgment of Justice La Forest, commenced with a statement of general principle:

In the case of s 15(1), this Court has stressed that it serves two distinct but related purposes. First, it expresses a commitment – deeply ingrained in our social, political and legal culture – to the equal worth and human dignity of all persons. As McIntyre J remarked in Andrews, at p 171, s 15(1) “entails the promotion of a society in which all are secure in the knowledge that they are recognised at law as human beings equally deserving of concern, respect and consideration”. Secondly, it instantiates a desire to rectify and prevent discrimination against particular groups “suffering social, political and legal disadvantage in our society” …²⁷

A person claiming a violation of s 15(1) must first establish that, because of a distinction drawn between the claimant and others, the claimant has been denied “equal protection” or “equal benefit” of the law. Secondly, the claimant must show that the denial constitutes discrimination on the basis of one of the enumerated grounds listed in s 15(1) or one analogous thereto. Before concluding that a distinction is discriminatory, some members of this Court have held that it must be shown to be based on an irrelevant personal characteristic … Under this view, s 15(1) will not be infringed unless the distinguished personal characteristic is irrelevant to the functional values underlying the law, provided that those values are not themselves discriminatory. Others have suggested that relevance is only one factor to be considered in determining whether a distinction based on an enumerated or analogous ground is discriminatory …

In my view, in the present case the same result is reached regardless of which of these approaches is applied ... There is no question that the distinction here is based on a personal characteristic that is irrelevant to the functional values underlying the health care system. Those values consist of the promotion of health and the prevention and treatment of illness and disease, and the realisation of those values through the vehicle of a publicly funded health care system. There could be no personal characteristic less relevant to these values than an individual’s physical disability.²⁸

3.26 A case of physical disability no doubt provides a dramatic example of the circumstances in which differential treatment may be required, but it illustrates an important principle underlying the concept of discrimination.

3.27 The need for differential treatment of those whose circumstances are not identical is undoubtedly sound in jurisprudential terms, but requires care if it is to be expressed in legislative terms with certainty and precision.

DIRECT DISCRIMINATION

3.28 Under the ADA direct discrimination is said to occur where a person:

treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person [not having the relevant characteristic].³⁰

(a) less favourable treatment;

(b) comparison between the aggrieved person and a real or hypothetical person without the relevant characteristic; and

(c) circumstances that are the same or not materially different.

3.30 The first question is how the definition operates in relation to the prohibitions which follow it. Thus, in Part 2 of the ADA, dealing with racial discrimination, the primary section in relation to employment provides that it is “unlawful for an employer to discriminate against a person on the ground of race” in various respects concerned with employment.³¹ Similar prohibitions exist in relation to other grounds and areas.

Problems associated with the definition of direct discrimination

The need for a comparator

3.31 The consequence of the above test is that identical treatment is deemed not to result in discrimination. It is also limited to those forms of treatment where the required comparison is made out. Treatment which is detrimental, but not less favourable in a comparative sense, is excluded.

3.32 The interrelationship of the definition of discrimination and the active proscription, albeit in an earlier form of the Act, was discussed in detail by Justice Mahoney in Boehringer Ingelheim Pty Ltd v Reddrop.³² Justice Mahoney set out the issue in the context of marital status discrimination in the following terms:

The formula adopted [in the definition provision] requires that, for discrimination to be found to exist, it must be found that the complainant was treated “less favourably”. These words require that there be two situations or sets of circumstances, the actual and the hypothesised, so that it can be determined by a comparison whether the treatment in the former is “less favourable” than in the latter. In order to provide for such a comparison, the legislature might have provided simply that there is proscribed discrimination where, on the relevant ground, the complainant is treated less favourably than he would have been treated if that ground had not been present. Such a provision would have required a comparison of treatment, in the actual and the hypothesised case, but it would have been a comparison in which the person discriminated against would be the same in each case (vis, the complainant), and the comparison would have been between the two sets of circumstances (vis, the circumstances actually existing and such circumstances minus the marital status of the complainant).³³

[b]ut the “detriment” concept of discrimination may comprehend different things. It may limit discrimination to treatment involving the imposition of a thing which is of itself detrimental; or it may extend to treatment which is detrimental only in the sense that it is less favourable than the treatment which, in the instant circumstances, is afforded to another person. The legislature ... adopted the latter meaning. But, because it adopted that meaning, it became necessary to spell out the kind of comparison to be made between the two persons. The words “treats him less favourably” required this. And the draftsman did this by the words “than in ... different marital status”. These words, in my opinion, represent merely the draftsman’s necessary drawing out of the meaning of “less favourably”. I do not think that they were intended to limit the circumstances in which less favourable treatment could operate as discrimination.³⁴

The unexpressed declaration

3.35 The next step in refining the definition is to adopt the principle referred to by Justice Gaudron in Street v Queensland Bar Association³⁶ that “anti-discrimination legislation usually proceeds by reference to an unexpressed declaration that certain characteristics are irrelevant within the areas in which discrimination is proscribed”.

3.36 That analysis is not only accurate, but identifies an underlying flaw in the scheme of the current legislation. That declaration should be made express. In short, unlawful discrimination should be identified as breach of a duty not to treat people on the basis of irrelevant considerations (which in the present context will be defined by the proscribed grounds) where to do so may adversely affect the person concerned.

3.37 This approach is consistent with the established principle that an intention to discriminate is not an essential part of the statutory proscription. As noted by Justices Deane and Gaudron in Australian Iron and Steel Pty Ltd v Banovic:

[I]n Reg v Birmingham City Council; ex parte Equal Opportunities Commission, Lord Goff stated that “[t]he intention or motive of the defendant to discriminate ... is not a necessary condition to liability”. His Lordship explained that, if it were otherwise, “it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy”.³⁷

That exercise is, in essence, the same as an inquiry whether irrelevant considerations were taken into account or relevant considerations were not taken into account.³⁸

3.39 Complaint as to the failure to adopt terminology reflective of irrelevant considerations is also to be found in the judgment of Justice Gummow in I W v City of Perth.⁴⁰ After referring to the passages identified above dealing with discrimination as referable to irrelevant considerations, his Honour stated that: “this passage deals with the species of discrimination which elsewhere have been identified as ‘direct’ and ‘indirect’”.⁴¹

3.40 The succinct terms by which the fundamental precepts are explained in this passage have been eschewed by legislatures when framing human rights legislation, such as the ADA. Language has been employed which is both complex and obscure and productive of further disputation. The consistency and obvious justification for the criticisms demands a new approach.

Benign discrimination

3.41 An important aspect of the concept of discrimination is that not every treatment involving a distinction is discrimination. This leads to the question whether that which is sometimes described as “benign discrimination” is rendered unlawful. Benign discrimination is treatment which should not be unlawful where characteristics justify treatment which is different from treatment afforded to the dominant group. For example, appropriate forms of maternity leave must be available to women if they are to enjoy equal levels of job security with men despite their unique characteristic of child bearing. Similarly, ethnic differences may need to be taken into account: thus employment practices may need to cater for the requirements of practising Jews which are different from the norm, so as to allow them to travel home before dark on the day before the Sabbath. Also reflecting cultural differences based on race, protection may be necessary for property owned by Indigenous people which has a cultural attachment for them and which cannot be treated as an economic resource readily translatable into financial compensation in the way that ordinary title in this country is treated. If differential treatment is required in these cases, it is arguable that there is no discrimination because the characteristics are a reflection of the legitimate circumstances of the individual groups. Alternatively, such laws may be treated as “benign” discrimination, which, although they provide a particular benefit or privilege to a particular group, are legitimate because they have an objective justification based upon a characteristic, albeit a characteristic based on sex or race.

3.42 The Australian Law Reform Commission (“ALRC”) in its report, The Recognition of Aboriginal Customary Laws,⁴² quotes from an international lawyer, W A McKean, discussing the principle of equality in international law, to the following effect:

The principle does not require absolute equality or identity of treatment but recognises relative equality, ie. different treatment proportionate to concrete individual circumstances. In order to be legitimate, different treatment must be reasonable and not arbitrary, and the onus of showing that particular distinctions are justifiable is on those who make them. Distinctions are reasonable if they pursue a legitimate aim and have an objective justification, and a reasonable relationship of proportionality exists between the aims sought to be realised and the means employed. These criteria will usually be satisfied if the particular measures can reasonably be interpreted as being in the public interest as a whole and do not arbitrarily single out individuals or groups for invidious treatment.⁴³

The Native Title Act was said to discriminate in favour of Aborigines and Torres Strait Islanders and thus to offend the Racial Discrimination Act ... The argument encounters considerable obstacles. In the first place, it is not easy to detect any inconsistency between the Native Title Act and the Racial Discrimination Act. The Native Title Act provides the mechanism for competing rights and obligations of those who are concerned to exercise, resist, extinguish or impair the rights and interests of the holders of native title. In regulating those competing rights and obligations, the Native Title Act adopts legal rights and interests of persons holding other forms of title as the benchmarks for the treatment of the holders of native title, but if there were any discrepancy in the operation of the two Acts, the Native Title Act can be regarded either as a special measure under s 8 of the Racial Discrimination Act, or as a law which, although it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of all forms of Discrimination.⁴⁴

But some at least of the special measures which are to be taken under Article 2(2) do not have what could be described as an end result in view, and could properly be maintained indefinitely. For example, special provisions for bilingual education for a minority ethnic group are certainly among the measures envisaged by Article 2(2). Such measures should last as long as the linguistic group survives. In such cases, the termination of the special measure would indicate, not the “achievement” of its objectives, but its failure.⁴⁵

3.45 The current definition of direct discrimination does not expressly cover future discrimination. This was also the position in other early anti-discrimination legislation. However, the more recent State legislation namely, the Victorian,⁴⁶ ACT⁴⁷ and Queensland⁴⁸ Acts now expressly cover future discrimination. It is noteworthy that the Disability Discrimination Act 1992 (Cth) (“DDA”)⁴⁹ also covers future discrimination in its definition of direct discrimination.

3.46 Cases in NSW and Victoria (under the now repealed 1984 Act) have held that a complaint can only be brought if the particular treatment has occurred even though its occurrence in the future is inevitable.⁵⁰ However, in Waters v Rizkalla⁵¹ it was stated that although not every decision would fall within the ambit of “treatment”, “a decision made by a public corporation which normally has active and effective control over the subject matter of its decision, announced publicly, and made and announced with the intention and will to implement in fact” would constitute relevant “treatment”.⁵² Commenting on this issue, an academic, R Hunter is of the view that although unresolved there must be an argument on the strength of Waters v Rizkalla that future discrimination will be unlawful under the State Acts and the Sex Discrimination Act 1984 (Cth) (“SDA”) where it is not specifically covered.⁵³

Characteristics

3.47 The current definition of direct discrimination in the ADA includes an expanded definition of each ground so as to include treatment, not merely on the ground of race, sex, etc, but also on the ground of a “characteristic which appertains generally” to persons of that sex or race, or a “characteristic which is generally imputed” to such persons. The breadth of this extended definition has given rise to some difficulties in identifying an appropriate dividing line between direct and indirect discrimination. This, of course, is important as indirect discrimination may be justifiable, whereas direct discrimination is not, in the absence of an applicable exception.

3.48 Further, it is not entirely clear what a characteristic may be that “appertains generally” to a particular group. For example, is it correct to say that the ability to bear children is a characteristic appertaining generally to people of the female sex? Whilst the characteristic is unique to that sex, there are many women who, whether for reasons of age or otherwise, are not able to have children. Accordingly, the characteristic may be unique and may apply to many women, but it certainly is not universally applicable. Is a characteristic which may be true of some 90% of females between the ages of 15 and 45 one that appertains generally to females? Alternatively, if a particular woman is within the relevant age group, is one entitled to take the subset of women comprising that age group in considering the pool against which the generality of appertaining must be considered?

3.49 Similar problems arise in relation to characteristics which are “generally imputed” to persons of a particular class. Further, it is not clear why the conduct is unlawful only if the employer has selected a characteristic which is generally imputed to people of that class. For example, it seems most unlikely that any court would find that, within the Australian community, women were generally considered to be less intelligent than men, although such an imputation might have been generally made in other communities or at other times. However, the eccentricity of a particular employer who held such a view should not take the conduct outside the prohibition in the Act.

3.50 Despite these theoretical difficulties, the definition of grounds in a manner which includes characteristics appertaining or imputed to a class of people has not given rise to significant difficulties in the case law. In part, this appears to be because appellate courts have acknowledged that the determination of appropriate characteristics is a matter for the Tribunal empowered to make findings of fact and, unless manifestly unreasonable, will be largely unreviewable. However, it is also fair to say that the courts and tribunals have generally adopted approaches to this question which are both practical and based on common sense, rather than being troubled by concerns about the precise meaning of the terminology adopted. While the Commission sees merit in not varying the terminology unnecessarily, some matters would benefit from clarification.

The new approach

Substitute comparability test with detriment test

3.51 As canvassed in case law and academic literature referred to above, there is widespread dissatisfaction with the current definition of discrimination in anti-discrimination statutes. The limitations imposed by the need for a comparator give rise to conceptual difficulties as well as problems associated with proof for complainants. The concept of discrimination, properly understood, must go further than a guarantee of formal equality.

3.52 As stated above, the current statutory definition includes both comparability and detriment. However, the focus is on the comparability test. Given the level of artificiality and resulting complexity that is associated with meeting the comparability test, the Commission prefers to adopt a definition of discrimination which is based on and focuses on a concept of detriment or adverse effects. This will also serve the added purpose of excluding benign discrimination from the ambit of the ADA. This, we note, is the preferred approach of the ALRC in its consideration of the international instruments which underlie the SDA and hence indirectly underlie the State legislation.⁵⁴

3.53 In formulating the actual definition, detriment will be articulated separately, somewhat akin to damage in a negligence action. Adopting a negligence style approach, the three elements required will be that:

(a) in statutorily prescribed circumstances there is a duty to consider people on their merits;

(b) it is a breach of that duty to take account of irrelevant considerations; and

(c) there will be liability when there is detriment or damage which flows from that breach of duty.

The duty to consider people on their merits will be encompassed in the objects clause of the legislation.⁵⁵ Elements (b) and (c) will be articulated in the definition of direct discrimination.

3.54 Although there is no express declaration, it would appear that the existing law, as exemplified in cases such as Director General of Education v Breen,⁵⁶ does in effect take an “irrelevant considerations” approach. Also, it appears that members of the High Court support an “irrelevant considerations” approach as being the proper conceptual approach to anti-discrimination law. This is evidenced by Justice Gaudron’s statements about it in Street quoted above, which is shared by other High Court justices.⁵⁷ If this view is supported by the High Court, then the Commission is doubly satisfied that the irrelevant considerations approach should be expressly provided for in the legislation.

3.55 The converse of taking irrelevant considerations into account is failing to take relevant differences into account. Thus, an employer who treats all employees alike ignoring the fact that some people have disabilities will be discriminating against them. This issue becomes particularly relevant in relation to grounds that require some form of reasonable accommodation before a “level playing field” can be established.

3.56 Subject to the special circumstances attending disability, family responsibilities, pregnancy and religious discrimination, the general approach to defining discrimination is common to all the identified grounds. Accordingly, there is a question as to whether the ADA would be easier to read and apply if there were a single part defining discrimination and identifying the relevant grounds. This is the approach which has been adopted in recent legislation in most other jurisdictions in Australia.⁵⁸ Although it is necessary to consider separately the areas in which the prohibition operates, and the relevant exceptions, on a ground by ground basis, the Commission is satisfied that the adoption of a general definition is feasible and will simplify the ADA.

The “detriment” approach

3.57 Currently, less favourable treatment based on a prohibited ground amounts to discrimination, provided it is in a prohibited area and not subject to an exception. Focussing on detriment has the advantage of removing benign discrimination from the ambit of the ADA on the basis that it results in a benefit or privilege which is legitimate rather than a detriment which is illegitimate. However, granting a privilege to a disadvantaged group may result in a detriment to others. This situation is remedied by the special measures provision which is designed to permit measures to alleviate the circumstances of disadvantaged and other groups requiring different treatment. Such special measures should not themselves be treated as discriminatory simply because they are not available to other groups. Currently, the ADA does have a special measures exception in relation to most grounds, albeit in a rather convoluted form. The Commission recognises that the role of a special measures provision is to achieve equality between disadvantaged and non-disadvantaged groups and by doing so it is a means of preventing and eliminating discrimination rather than promoting it. Further discussion on special measures is found in Chapter Six of this Report.

Future discrimination to be covered

3.58 In some circumstances, the statutory prohibition on discrimination has been held to preclude a complaint where the relevant conduct has not been completed. Thus, in Woods v Wollongong City Council,⁵⁹ the Equal Opportunity Tribunal (“EOT”) dismissed a complaint in relation to a development approval granted in relation to a development of a retail complex on the basis that there had been no provision of services to the complainant, in circumstances where the relevant discrimination concerned the absence of wheelchair access to the complex, when built. As a result, the complex was constructed as planned (without wheel chair access) and a further complaint was made, which resulted in a judgment upholding the complaint in significant respects.⁶⁰ Consequently, a number of orders including limited reconstruction work, were made by consent.⁶¹ In practical terms, it would have been preferable if the matter could have been determined prior to construction of the complex. In substance, the problem raised by this case is not so much one flowing from a limited definition of unlawful conduct, but rather from the unavailability of relief except in relation to a complaint of an actual contravention of the Act. The difficulty may be avoided by permitting a complaint in relation to an apprehended contravention of the Act and by permitting the Equal Opportunity Division of the Administrative Decisions Tribunal (“EO Division”) to grant relief, as appropriate in particular circumstances.

Characteristics redefined

3.59 First, it is desirable to add to the current definition the situation of a characteristic which is actually imputed to a class rather than an individual, although such a characteristic is not generally imputed.

3.60 Secondly, it is desirable to specify that a characteristic may appertain generally to a particular class if it appertains to a subset of that class. For example, to make a particular drug available for treatment of a condition which is defined as being “post-menopausal” should be seen as discriminatory. Although only a minority of women may fall within that category, no men do. More significantly, if one takes a section of the public who are over, say, 55 years, a very high percentage of women will have that characteristic but men will not.

3.61 Thirdly, it is appropriate to note that the characteristic need not be unique to one particular group. For example, some physiological conditions such as sickle-cell anaemia, are largely found in people of a particular racial grouping; however, the condition is not unique to that group although it is very rare in other people. It should be sufficient that the characteristic appertains or is imputed generally to a particular group or is disproportionately found within, or imputed to, that group.

3.62 Fourthly, the boundary between direct and indirect discrimination should be clarified to the extent that a characteristic which is sufficient for the purposes of direct discrimination must be one which is inherent in the class concerned, rather than being a particular social construct. This may be identified as an “inherent characteristic”. This idea is not readily translated into precise terminology applicable across all grounds. For example, one may distinguish between physical characteristics appertaining to a particular class of people and levels of education which may reflect economic or social disadvantage. On the other hand, when one is dealing with racial characteristics, the concept of race must be broadly defined to include customs and culture associated with a particular racial group. Accordingly, the definition of an inherent characteristic will depend, to some extent, upon the nature of the ground. Although this will give rise to some difficulty of application, the Commission considers that it would be of assistance to define relevant characteristics as characteristics which are inherent in the class identified by the particular ground.

Other miscellaneous amendments

3.63 The first element of discriminatory conduct is that the discriminator must do something. Failing to do something can also result in detriment. This may be implied within the meaning of the term “an act”. However, for the sake of clarity, the Commission favours the DDA approach of stating that an act includes the failure to do an act.

3.64 In order for the act causing the detriment to constitute discriminatory conduct, there must be some link with the person’s sex, race etc. In relation to direct discrimination, the link is that one of the reasons for doing, or omitting to do, the act (but not necessarily the main reason) is the other person’s sex or race. This link is currently expressed in s 4A of the ADA and should be maintained.

Recommendation 3

The concept of direct discrimination should be redefined:

• to cover conduct causing detriment or disadvantage on the ground of an irrelevant characteristic [Draft Anti-Discrimination Bill 1999: cl 9, 12];
• to include in conduct, a refusal or omission to act [Draft Anti-Discrimination Bill 1999: cl 11]; and
• to clarify what attributes may constitute a “characteristic” [Draft Anti-Discrimination Bill 1999: cl 16, 17, 18].

Recommendation 4

Relief should be available, in appropriate circumstances, in relation to threats to contravene the ADA.

Draft Anti-Discrimination Bill 1999: cl 93, 119(5)

3.65 As stated above, the grounds of disability, family responsibilities, pregnancy and religion differ from other grounds in that they identify circumstances which are not necessarily irrelevant in all circumstances. They also identify grounds which are recognised as requiring differential treatment in order to ensure the equal protection of the law and the provision of equal benefits under the law.

3.66 The approach adopted in the present ADA is that the employer should be required to take reasonable steps to accommodate a disability, so long as those steps will not cause undue hardship. It is then necessary to spell out, as far as reasonably practicable, the criteria which are relevant to considering the question of what constitutes reasonable accommodation.⁶²

3.67 This approach acknowledges that a disability may in certain circumstances be relevant to, for example, the particular work to be done. In accordance with general principles, a disability should not be taken into account where it is irrelevant: further, the particular effects of a given disability should be considered in context and an applicant for employment should not be rejected on the basis of a stereotyped assumption or prejudice which may not be true in the particular case. However, in common with disability discrimination legislation in most jurisdictions, the ADA goes further and requires that positive steps be taken to accommodate disabilities, even where they may be relevant to job performance. The principle was described in 1978 by the Supreme Court of Washington in Holland v Boeing Co in the following terms:

Legislation dealing with equality of sex or race was premised on the belief that there were no inherent differences between the general public and those persons in the suspect class. The guarantee of equal employment opportunities for the physically handicapped is far more complex.

The physically disabled employee is clearly different from the non-handicapped employee by virtue of the disability. But the difference is a disadvantage only when the work environment fails to take into account the unique characteristics of the handicapped person… Identical treatment may be a source of discrimination in the case of the handicapped, whereas different treatment may eliminate discrimination against the handicapped and open the door to employment opportunities.⁶³

The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society’s benefits and to accommodate them. Exclusion from the mainstream of society results from the construction of a society based solely on “mainstream” attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. The discrimination inquiry which uses “the attribution of stereotypical characteristics” reasoning as commonly understood is simply inappropriate here. It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment. It is recognition of the actual characteristics, and reasonable accommodation of these characteristics, which is the central purpose of s 15(1 ) in relation to disability.⁶⁴

3.70 The justification for requiring reasonable accommodation is in part based upon the social benefits from allowing people with a disability to lead as full a life as possible. However, it is also based on recognition that we tend to design buildings and equipment upon particular assumptions. For example, it is universally assumed that access to tall buildings requires a lift or elevator. Sometimes, less thought is given to the positioning of the buttons to allow use of the elevator. Similar assumptions are made about physical capabilities to pick up and carry heavy or awkwardly shaped objects. Again, equipment is sometimes designed upon assumptions about physical capabilities which are not universally true and which are not reasonably necessary. Although this philosophy is now well understood and widely accepted, the principles are not always carefully reflected in the legislation which results.

3.71 The first factor to be considered is whether, with reasonable accommodation, the employee would be able to carry out essential requirements of the position. Most work involves a set of core responsibilities together with some incidental responsibilities which may arise from time to time. The employer should not be required to change those essential core requirements, although it may be reasonable to expect that incidental or less important requirements can be undertaken in a different way or by other persons. This flexibility is generally available in most situations, without questions being raised. For example, staff employed to use computers and photocopiers may need to move the equipment around from time to time. Although that may be part of their work responsibilities, arrangements are invariably made to assist people who do not have the physical strength to undertake those tasks by themselves.

3.72 The second factor which must be addressed is that the accommodation may involve either a variation in the requirements of the position (other than essential core requirements) or the provision of particular services or facilities, or both. These different forms of accommodation should be identified and the restraint of unjustifiable hardship applied to them.

3.73 The third factor concerns the considerations which may be necessary in identifying what constitutes unjustifiable hardship. These are identified in general terms presently in s 49C of the ADA.⁶⁵ The Commission accepts the relevance of those matters, but would add a reference to the particular circumstances of the person concerned, including his or her training, qualifications and experience.

3.74 Finally, where it is necessary to accommodate a particular disability, the question of undue hardship may in part be avoided by some variation in the terms and conditions of employment. For example, where particular steps are taken to accommodate the employee, but on a basis which differentiates him or her from other employees in a manner which might be considered detrimental, such variations should be consensual. This principle underlies the general concept of “special measures” which are identified as appropriate exceptions to all grounds of discrimination.⁶⁶ Where differential treatment is justified because it is said to be in the interests of the individual concerned, his or her consent should generally be required to the extent that the differential treatment may reasonably be seen as detrimental.

3.75 Other issues concerning disability discrimination in employment and other areas of operation which are relevant to this discussion, but not directly relating to conceptual issues, are dealt with in Chapter Five. For present purposes, it would suffice to note that, as in employment, the obligation to accommodate a disability is implicit in other areas but should be made express.

Relevance to other grounds

3.76 Once one accepts that disability discrimination requires more than simply identifying the ground as an irrelevant consideration, it is necessary to consider whether other grounds, currently contained within the ADA or recommended for inclusion, give rise to similar considerations. Care must be taken in undertaking this task, so that factors which are truly irrelevant are not given a status which is not justified.

3.77 In relation to disability, the analysis was undertaken on the basis, not that all persons are identical in their physical and intellectual features, but rather that some people depart significantly from the norm which is reflected in the concept of normal and orderly functioning of body and mind. Employers are expected to structure their employment practices to take account of normal bodily needs, for example, by allowing for sleep and sustenance. However, it is common place in employment to specify hours of work and attendance at places of work which interfere with other physical or social activities, including child care arrangements, pregnancy, childbirth and breastfeeding. There is a legitimate debate as to whether employment practices should cater for these eventualities. Whilst such activities tend to be temporary or episodic, it may be argued that they are normal and commonplace, especially in the lives of women.

3.78 The contrary argument is based on pragmatism. It asserts that, whatever might be true in an ideal world, employment practices in our society do not generally accommodate these situations and that to require such accommodation would be to place the law well ahead of social convention and would cause a significant degree of social and industrial disruption. However, pragmatism can be double-edged. One may point to the significant changes in workplace practices which have been made to accommodate the physical needs of smokers, who are now precluded for health reasons from smoking in many places of employment.

3.79 There is no doubt that the law is developing over time. Carer responsibilities are now being accommodated by industrial laws and the failure to accommodate pregnancy and breastfeeding has been addressed from time to time as a form of sex discrimination. The Commission believes that social attitudes will continue to change in favour of requiring accommodation of such characteristics and supports that process. However, it believes that there are dangers in pressing the legal obligations of employers (and those responsible in other areas of public life) too far beyond the limits of what is generally accepted as necessary responsible conduct. Disability is not the only ground to which the foregoing principles apply: family and carer responsibilities provide a further example. Thus, the need to adjust working hours to allow a working parent to collect young children from school or child care may impose a barrier to the performance of a particular job. This should not be prohibited as conduct which is unacceptable in all circumstances. Rather, a similar question will arise as in the case of workers with disabilities, namely whether the manner in which the work is organised is unavoidable or whether it would be reasonably practicable to vary the working hours to accommodate the worker with family responsibilities.

3.80 The real difficulty in this area is to identify the extent of the prohibition. If an employer treats a person detrimentally on the ground of family responsibilities, for example, by refusing to interview for a position where the applicant has dependent children, the scope of the prohibition will be relatively limited. Further, there may need to be an exception for a genuine requirement of the position. For example, if an applicant says that he or she is not available between the hours of 6.00pm and 9.00am, because of the need to care for young children, that person is simply ineligible for a job (for example) at a bakery which, by law, must operate only during those hours, or for milk deliveries which are required early in the morning. However, these are extreme cases. In other situations, flexibility may be available. A principle of equality of treatment alone will not impose an obligation on an employer to improve the flexibility of, or otherwise vary the conditions attaching to, a particular position. Accordingly, this ground will have little effect in practice if it does not include an obligation to make reasonable accommodation, subject to the defence of undue hardship. This is because actual or potential availability for work at particular hours may be a relevant consideration in relation to some employment. Rather than disregard this fact, it is necessary to acknowledge its force and impose reasonable requirements to achieve the underlying social policy.

3.81 One argument against the “reasonable accommodation” approach is that it imposes a burden on employers, and in particular on small business. There are two answers to this objection: first, it is necessary to assess the strength of the objection in general terms. Secondly, if it is seen to have merit, then consideration must be given to limiting unreasonable effects, preferably with a carefully formulated exception.

3.82 In the first place, the objection bears the hallmarks of the objections historically raised in relation to regulation of anti-social conduct in many areas. The suggestion of unacceptable costs if women were provided with equal opportunities, due to the need to make additional toilet facilities available, and the fears accompanying the requirement to accommodate disabilities, provide examples. In those cases, the overriding social policy contained in anti-discrimination principles was given effect and the adverse economic consequences proved to be exaggerated. In relation to workers with family responsibilities, it may be conceded that the proportion of the work force affected by family responsibilities will greatly exceed the proportion subject to significant disabilities, but on the other hand, will be less than the numbers affected by the prohibition on sex discrimination. More importantly, the appropriate balance is achieved through the “undue hardship” defence which provides a degree of flexibility in the application of this principle.

3.83 The second aspect of the objection really focuses upon the uncertainty which is said to flow from the “undue hardship” defence. However, this uncertainty has not proved a significant difficulty in relation to the area of disability discrimination. In practice, it seems that commonsense has prevailed and that relatively few cases have been brought in the marginal areas where outcomes will be difficult to predict.

3.84 To the extent that new situations give rise to novel complaints, the usual course is likely to follow: namely that the Anti-Discrimination Board (“ADB”) and the EO Division will develop principles and guidelines which will give rise to increasing levels of understanding and certainty. Similar considerations will also apply in relation to pregnancy and breastfeeding.

3.85 The Commission is conscious that these grounds give rise to controversy and debate which can easily arouse legitimate sensitivities. Thus, there is resistance, understandably, to identification of pregnant women as people who should be treated as if they had a disability. That concern is not so much an attempt to deny the physical circumstances of pregnancy, but rather, reflects a fear that such an analysis will reinforce stereotypes that were all too common in the past and which linger in our society. On the other hand, if anti-discrimination laws are to be appropriately moulded and accepted by the community, it is essential that where, in the particular circumstances, a physical condition is relevant that fact be identified and, so far as is appropriate, the difference be accepted as relevant.

Recommendation 5

The ADA should impose an obligation to provide reasonable accommodation in relation to the grounds of disability, pregnancy, breastfeeding and carer responsibilities (only in employment) subject to a defence of unjustifiable hardship.

Draft Anti-Discrimination Bill 1999: cl 14

3.86 It has long been recognised that differential treatment which is specifically related to a prohibited ground, such as race or sex, is generally unacceptable. However, disadvantage can also result from the application of tests which, though facially neutral, have an unreasonable and disproportionate impact on a particular group of people. The resulting discrimination is commonly called indirect or disparate impact discrimination.

3.87 The origin of the notion of indirect discrimination dates back to the US case of Griggs v Duke Power Company.⁶⁷ In that case, the Supreme Court held that an employer’s requirement that job applicants hold a high school diploma or pass an intelligence test was unlawfully discriminatory because it operated to exclude black applicants at a higher rate than whites and was not substantially related to the applicant’s ability to perform the job. Formulating the concept of indirect discrimination Chief Justice Burger said:

What is required by Congress is the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.

The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.⁶⁸

The definition of indirect discrimination in the ADA

3.89 In NSW, indirect discrimination is defined in relation to each prohibited ground. In every case the focus is on the requirement or condition and its disproportionate impact where the discriminator:

requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons [not of that race], ... comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.⁷³

• the discriminator requires the aggrieved person to comply with a requirement or condition;
• a substantially higher proportion of persons of a different status comply or are able to comply;
• the requirement is not reasonable having regard to the circumstances; and
• the aggrieved person does not, or is not able to, comply.

The proportionality test

3.91 Many criticisms have been mounted against the current definition of indirect discrimination. It has been said in numerous commentaries on the ADA and other legislation in similar form that the test, which requires one to identify whether “a substantially higher proportion” of the group into which the aggrieved person falls are unable to comply with the requirement, as compared with a group of persons not having the particular characteristic, gives rise to a number of problems. One major difficulty with this approach is to identify the requisite ‘base pool’ from which the necessary proportions must be drawn. This issue was the subject of detailed consideration by the EOT, the Court of Appeal and ultimately the High Court in the Australian Iron and Steel case (“AI&S case”).⁷⁴ The problems which can arise may be illustrated by the facts of that case. Australian Iron and Steel (“AI&S”) sought to retrench workers on the basis of the “last on, first off” principle. AI&S had, as the EOT found, discriminated against women in its employment practices over many years. However, those practices had improved significantly in the years leading up to the retrenchments. As a result, the correct approach was a matter of critical significance.

3.92 There were four approaches to the task open, which may best be explained by reference to the following hypothetical figures, based on the AI&S Case.

 

	Initial work force	Retrenched	Remaining work force
Women	500	50	450
Men	4500	450	4050
Total	5000	500	4500

 

3.93 Each approach is concerned with the groups of women and men who survive retrenchments. The first method compares the surviving women, as a proportion of all women in the work force prior to retrenchments, with the surviving men, as a proportion of all men in the work force prior to retrenchments. Before retrenchments women constituted 10% of the work force; they also constituted 10% of those retrenched and still constituted 10% of the work force after retrenchments had been completed. The resultant proportions were identical and there was, therefore, no substantial disproportion between the effects on men and women.

3.94 However, there are three other ways of undertaking the exercise which may lead to a different result. The second method takes the number of men and women in the work force, before and after retrenchments, as a proportion of the total original work force. As appears from the table, the total number of men at all stages exceeded the total number of women in the work force and the proportion of men who overcame the obstacle of retrenchment is 81% (4050/5000), whereas the proportion of women who survived is 9% (450/5000) (10% of the work force was lost). Although this approach found favour with Chief Justice Street in the Court of Appeal in the AI&S case, and with the majority in the Federal Court in Secretary Department of Foreign Affairs v Styles,⁷⁵ it was rejected by all members of the High Court in Australian Iron and Steel Pty Ltd v Banovic.⁷⁶ Justice Dawson noted in Banovic:

The problem with that form of comparison is that the result may merely be a reflection of the fact that the work force was sexually imbalanced. Indeed, where the sexes are not evenly balanced in a work force, the result of the “last on, first off” principle will almost always result in the retrenchment of a higher proportion of one sex ... Obviously, the reach of the subsection was intended to be far less ambitious and to extend only to discriminatory requirements or conditions imposed upon a work force, whether the sexes in the work force happen to be unequal or not. The subsection was not intended to embrace requirements which are truly non-discriminatory and it must, therefore, require something more than a direct comparison between the number of men who comply and the number of women who comply with the requirement imposed by an employer.⁷⁷

3.96 The fourth approach, which was accepted by the EOT in AI&S and found not to involve any legal error by the majority in the High Court, rested on the principle enunciated by Justices Deane and Gaudron, and that:

requires the selection of relevant base groups which do not themselves incorporate the effect of allegedly discriminatory practices and which can accordingly be used as reference points for ascertaining the effect of those practices.⁷⁹

The comparison of the proportions of complying men and women to the male and female populations to be divided by the condition or requirement in question will reliably reveal the extent of the significance, if any, of sex to compliance only if sex is not a factor influencing the composition of those populations.⁸⁰

3.99 The question of establishing the base pool is a factual issue. Nevertheless, it can give rise to serious complexities which may in some cases be avoidable. The real issue is whether the consequences or effects of particular conduct impact disproportionately on one group rather than another, always accepting that, where particular grounds, such as race or marital status, involve numerous different groupings, the exercise tends to become even more complex. As a result of concern with respect to this exercise, some jurisdictions have now abandoned the terminology of “substantially higher proportion” of one group than another. Thus, the SDA now simply refers to the imposition of a condition, requirement or practice “that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.”⁸¹ One benefit of this approach is to avoid apparently different criteria being applied in relation to direct and indirect discrimination.⁸² Also, it would not require statistical analysis to show a disproportionate impact where such analysis is clearly unnecessary.

3.100 On the other hand, the proof that the act is discriminatory does not lie in the reason for doing the act, but in the way the detriment impacts disproportionately on one group compared with another. Using the AI&S case as an example, the act was the imposition of the “last on, first off” policy. The detriment was that some people lost their jobs. However, in order for the act to constitute discrimination there must be a link between the person’s sex and the detriment – that link requires that a disproportionate percentage of women compared with men suffered detriment as a result of the act. If the only test is detriment or disadvantage, then any act which detrimentally affects men and women equally (or other groups based on the prohibited grounds) would come within the definition. Thus, although establishing disproportionate impact can be a complex process, it may be necessary to establish the link between the detriment and the ground or characteristic.

Discriminatory effects – reasonableness

3.101 As already noted, not all conduct which has discriminatory effects should necessarily be unlawful. Thus, just as it is permissible to take account of sex, for example, if there is some inherent characteristic of one sex which is directly relevant to the question in issue, so it is acceptable to take into account factors which have no direct link with sex, although they may have a discriminatory effect when applied. One example, which is to be found in the case law, is the imposition of requirements in relation to appropriate head-wear. Such requirements may impact adversely on groups, such as Sikhs, who are required by their culture and customs to wear particular head-wear, such as the turban. If the requirement is imposed for significant safety reasons, it may be justifiable; if it is imposed purely for matters of appearance, the discriminatory effect may not be outweighed by the intended purpose and the result will be unacceptable.

3.102 The ADA presently requires that the imposition of the requirement be “not reasonable having regard to the circumstances of the case”. The United Kingdom legislation, from which ours was derived, involved a test of whether the conduct was “justifiable” rather than “not reasonable”. That is a somewhat higher test than the test commonly used in Australian legislation. The test of “reasonableness” has been preserved in recent amendments to the SDA, but the burden of proving that the practice is reasonable in the circumstances is now imposed on the respondent.⁸³ Further, the SDA now sets out the factors which are to be taken into account in determining whether a requirement is reasonable.⁸⁴

3.103 In principle, the placing of a burden of proof on the respondent is appropriate. If a complainant establishes, as a matter of fact, that the condition in question has a discriminatory impact, it is the respondent who is best placed to justify the conduct. For example, if it is an employment practice, it will be the employer who will be able to explain the reason for imposing the particular requirement and demonstrate its essential connection with the work required to be done. Although, under the ADA in its present form, the onus is placed on the complainant to demonstrate that the requirement was “not reasonable”, as a matter of practice the burden of demonstrating reasonableness will usually fall upon the respondent. In the face of a proven discriminatory effect and an absence of any ready explanation for the imposition of the practice, in circumstances where other practices with less discriminatory effects appear to be equally available, the EO Division is likely to find that the requirement adopted was unreasonable. The EO Division, in reaching its conclusion, would be entitled to take into account the fact that the respondent could have taken steps to call evidence to justify the practice. Accordingly, a change in the onus of proof is likely to reflect the realities of the present situation and is, on its face, fair.⁸⁵

3.104 There is also merit in spelling out the factors which may be relevant to the question of reasonableness or justification. In the SDA, the factors are set out in the following terms:

The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement of practice; and

(b) the feasibility of overcoming or mitigating the disadvantage; and

(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.⁸⁶

3.106 A more logical approach would be to identify the relationship of the requirement to the legitimate purposes of the employer; determine whether the disadvantage was disproportionate to the benefit accruing to the employer; ask whether the disadvantage could be mitigated without undue hardship to the employer and, if there are steps which might be taken to mitigate the disadvantage, determine if those steps have been or will be taken. As noted above, the assessment of the discriminatory impact will already have been undertaken. The other matters fall within the field of expertise of the employer. Drafting aside, the approach of the SDA, that it is desirable to spell out the factors which are relevant to considering whether a discriminatory effect is unlawful or not, is sound. It also follows from an identification of those factors that it is reasonable to expect the respondent to establish them.

3.107 Two other questions remain. First, there are cases where the discriminatory effect may be deliberately imposed and the use of a neutral requirement is merely a cloak for achieving that end. In these circumstances, the discrimination is deliberate and should not be justifiable. Secondly, it is necessary to resolve the difference in the standard between the current Australian test and the English test. On one view, the English test is more appropriate in that it looks for “justification” of the discriminatory impact, rather than asking whether the discriminatory impact is “not reasonable”. In Griggs v Duke Power Company⁸⁷ the US Supreme Court said, in relation to an employment case, “the touchstone is business necessity”. In the Commission’s view, the question is better resolved by breaking the elements down into their parts. Thus, the facially neutral ground relied upon by the employer should have a sufficient justification in terms of its own legitimate purpose. The suggested link is that it be adapted to a legitimate end, that the unintended detriment is not disproportionate to the benefit and that there was no other less discriminatory option available (absent undue hardship). The need to avoid unnecessary invasion of human rights and fundamental freedoms should not be weakened by a defence which is too readily satisfied. These variations in terminology are unlikely to have great impact in terms of consequences, but the Commission prefers a test of what is “reasonably necessary” in establishing the link between the condition and the legitimate business purpose. The result will obviously be influenced by a consideration of whether there are less discriminatory options and the weighing of the resulting benefits to the employer against the discriminatory impact on the complainant and his or her colleagues.

Recommendation 6

The concept of indirect discrimination should be redefined:

• to be consistent with the new definition of “direct discrimination”;
• to identify how the element of “reasonableness” is to be addressed; and
• to specify that the burden of establishing reasonableness rests with the respondent.

Draft Anti-Discrimination Bill 1999: cl 10

3.108 A final issue which needs to be considered in relation to the concept of discrimination is whether the legislation should include a statement of the objects and principles of the ADA. The current Preamble to the ADA describes it as an “Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”. This statement is limited in scope and, therefore, provides little more than a bald statement of the philosophy behind the ADA. Furthermore, while the existing Preamble refers explicitly to the aim of the ADA to promote “equality of opportunity”, it does nothing to explain the content of this right to equality. As discussed earlier in this chapter, there are numerous ways in which a right to “equality” may be framed and many complex issues which surround its formulation.⁸⁸ In view of the Commission’s recommendation to alter the definition of discrimination to promote substantive rather than merely “formal” equality,⁸⁹ it is desirable that this principle be included in the Preamble to the legislation.

3.109 In light of the complexity of the ADA, and the fact that the Commission is proposing a number of significant changes to the existing legislation, it is desirable that the ADA include a preliminary provision which provides an executive summary of the ADA and the rights and obligations which it creates. This may be done by including a comprehensive statement of objects or general principles at the beginning of the ADA, in addition to an expansion of the existing Preamble to incorporate specifically principles from international human rights law into the legislation.

3.110 A clear statement of the objects of the legislation would serve three important purposes. First, it would provide an important educational tool.⁹⁰ Given the highly complex nature of both Federal and State equal opportunity laws, a clear and succinct statement of the various rights and obligations which exist under the ADA would be extremely useful, particularly considering the importance of the ADA for various disadvantaged groups. It would also be useful as an aid to employers (and other bodies and persons covered by the ADA) in formulating appropriate Guidelines and Codes of Practice.

3.111 Secondly, as it is unlikely that a Federal or State Bill of Rights will eventuate within the next few years,⁹¹ a statement of objects would be a significant opportunity for the State legislature to recognise a number of important human rights which have been recognised at the international level. The precedent for the inclusion of such a statement of rights within legislation itself has already been set in a number of other NSW Acts.⁹² Finally, a clear statement of objects within the ADA may be used by the EO Division and appellate courts as an aid to interpretation of unclear or ambiguous provisions of the legislation. Increasingly, various members of the High Court of Australia have directed that legislation should not be interpreted narrowly but in keeping with the statutory objects of the legislation. For example, Chief Justice Mason and Justice Gaudron said in Waters:

[T]he principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account and give effect to the statutory purpose.⁹³

3.112 The human rights legislation of a number of other jurisdictions throughout Australia, currently include provisions which outline the objectives and underlying principles of the legislation.⁹⁵ Usually such principles are incorporated either in a Preamble or in an “objects” clause. The SDA, however, includes both a Preamble and a statement of objects.⁹⁶ Matters which are commonly covered in “objects” clauses are: general statements of the purpose of the legislation, including the elimination of discrimination and the promotion of equal opportunity, and an executive summary of the various provisions of the Act, including the grounds and areas covered. In addition, a number also include a brief statement of the principles contained in international human rights law and list the various treaties and conventions under which these arise.⁹⁷ As discussed in Chapter Two of this Report, the development of human rights legislation at the domestic level has been preceded by the emergence of a number of human rights instruments at the international level.⁹⁸ Many of these instruments have formed the Constitutional basis for the enactment of the Federal human rights legislation and are thus important to place the ADA in its appropriate context. The Preamble of the Anti-Discrimination Act 1991 (Qld) (“ADA (Qld)”) specifically lists each of the international human rights treaties ratified by the Commonwealth government and states that it is the intention of the State legislature to support and extend Commonwealth activity in this area.

3.113 The Commission is of the view that the ADA should include both a Preamble and a statement of objects. The Preamble could be drafted similarly to the Preamble of the ADA (Qld), including a statement of the principles of equal opportunity and the relevant international instruments ratified by the Commonwealth government. The objects clause could be drafted along the lines of those contained in the SDA and the Equal Opportunity Act 1995 (Vic), which provide a brief summary of the provisions of the Act and the purposes sought to be achieved. Every person’s right to be considered on their merits without having any irrelevant considerations taken into account is an important object which the Commission recommends for inclusion in the objects clause.

Recommendation 7

The ADA should include a Preamble which refers to a right to substantive, as distinct from formal, equality. It should identify the relevant international human rights instruments adopted by Australia and provide a brief statement of the principles contained therein.

Draft Anti-Discrimination Bill 1999: Preamble

Recommendation 8

The ADA should include a statement of objects. The statement should provide that the objects of the Act are:

• to promote recognition of equality of opportunity for all people;
• to eliminate discrimination by recognising that irrelevant characteristics not be taken into account;
• to implement strategies aimed at achieving substantive equality in public life, including provisions requiring the “reasonable accommodation” of certain attributes and permitting special measures to promote the opportunities of disadvantaged groups;
• to provide a mechanism for conciliation of disputes involving discrimination;
• to provide redress for people who have been unlawfully discriminated against; and
• to educate the community about the prohibitions against unlawful discrimination and to promote the social and economic benefits of applying non-discriminatory principles and practices.

Draft Anti-Discrimination Bill 1999: cl 3, 128, 129

Footnotes
1. UDHR Art 1.

2. ICCPR Art 26: the ICCPR is included as a schedule to the HREOC Act Sch 2.

3. UDHR Art 2; ICCPR Art 2(1) and Art 26.

4. This Convention may be found in a schedule to the RDA.

5. This Convention may be found in a schedule to the SDA.

6. For discussion of CEDAW and its areas of operation see: Australian Law Reform Commission, Equality Before the Law (Report 69, 1994) Pt 2.

7. See para 3.28-3.107 below for further discussion.

8. The disparities were noted by McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 402.

9. R Hunter, Indirect Discrimination in the Workplace (Federation Press, Sydney, 1992) at 12. See also Street v Queensland Bar Association (1989) 168 CLR 461 at 569, per Gaudron J; at 582-583, per McHugh J.

10. Street v Queensland Bar Association (1989) 168 CLR 461 at 571.

11. Canada (Attorney General) v Ward (1993) 103 DLR (4^th) 1 at 32 (La Forest J, quoting a decision of the United States Board of Immigration Appeals: In the matter of Acosta).

12. Australian Law Reform Commission, Equality Before the Law (Report 69, 1994) Pt 2 ch 16 where this was the minority view.

13. See, for example, C MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press, Cambridge (Mass), 1987), ch 3; J Morgan, “Equality Rights in the Australian Context: A Feminist Assessment” in P Alston (ed), Towards an Australian Bill of Rights (HREOC and CIPL, 1994); Australian Law Reform Commission, Equality Before the Law (Report 69, 1994) Pt 2 ch 3; S Day and G Brodsky, Women and the Equality Deficit: The Impact of Restructuring Canada’s Social Programs (Status of Women Canada, 1998) especially ch 2.

14. See below at para 3.44.

15. See Chapter 6 at para 6.97.

16. See para 3.65.

17. Street v Queensland Bar Association (1989) 168 CLR 461 at 571.

18. (1966) 6 ICJR at 305-306.

19. (1963) 2 CM LR 289 at 312.

20. (1952) 39 IAR SC 75 at 93.

21. Re East; ex parte Quoc Phu Nguyen [1998] HCA 73 at para 21.

22. The process is usefully described in a seminal judgment of the Supreme Court of Canada, Andrews v Law Society of British Columbia [1989] 1 SCR 143.

23. For a recent illustration of the developing jurisprudence in South Africa, see President of South Africa v Hugo [case CCT11/96, 18 April 1997], a decision of the Constitutional Court of South Africa.

24. Section 8(2).

25. [1997] 3 SCR 624.

26. See s 1.

27. [1997] 3 SCR 624 at para 54.

28. [1997] 3 SCR 624 at para 58.

29. [1997] 3 SCR 624 at para 72.

30. Taken from ADA s 7(1)(a), relating to race discrimination.

31. ADA s 8(1).

32. [1984] 2 NSWLR 13 at 18-22.

33. Boehringer at 19 (discussing the analogous sections dealing with marital status discrimination: ADA s 39).

34. Boehringer at 20.

35. In response to the DP30, the submission of the Disability Council of NSW specifically argued that: “[a] different approach to the comparability test is needed … People with disabilities may adopt different methods of doing things that cannot be compared with the needs or methods of people who do not have a disability”. See Disability Council of NSW, Submission at 1. See also DP 30.

36. (1989) 168 CLR 461 at 571.

37. (1989) 168 CLR 165 at 176.

38. Banovic at 179.

39. Banovic at 184. See also Waters v Public Transport Corporation (1991) 173 CLR 349 at 360, 401 and 409, (per Mason CJ and Gaudron J quoting from Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478-479).

40. (1997) 71 ALJR 943.

41. I W v City of Perth at 962.

42. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 at 109.

43. W A McKean, Equality and Discrimination Under International Law (Clarendon Press, Oxford, 1983) at 286-7. See also A Bayefsky, “The Principle of Equality or Non-Discrimination in International Law” (1990) 11 Human Rights Law Journal 1-34; H Charlesworth, “Equality and Non-Discrimination under the Optional Protocol” in Internationalising Human Rights: Australia’s Accession to the First Optional Protocol (Centre for Comparative Constitutional Studies, 1992); S Pritchard, “The Jurisprudence of Human Rights: Some Critical Thought and Developments in Practice” (1995) 2 Australian Journal of Human Rights 3.

44. (1995) 183 CLR 373 at 483.

45. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 at 112.

46. EOA (Vic) s 8.

47. DA (ACT) s 8.

48. ADA (Qld) s 10.

49. DDA s 5.

50. Woods v Wollongong City Council [1986] EOC 92-174; Ellis v Metropolitan Transit Authority [1987] EOC 92-207.

51. [1991] VR 12.

52. Waters v Rizkalla at 16.

53. R Hunter, Indirect Discrimination in the Workplace (Federation Press, Sydney, 1992) at 45.

54. Australian Law Reform Commission, Equality Before the Law (Report 69, 1994).

55. See discussion at 3.113 below.

56. [1984] EOC 92-015 (NSW Court of Appeal); [1982] 2 IR 93.

57. See Justice Kirby’s judgment in Christie v Qantas Airways Ltd [1995] EOC 92-705; 60 IR 17.

58. EOA (Vic) Part 2; ADA (Qld) Pt 2 and 3; DA (ACT) Pt 2; ADA (NT) Pt 3 Div 1.

59. (1986) EOC 92-174.

60. See Woods v Wollongong City Council (1993) EOC 92-486.

61. See Woods v Wollongong City Council (No 2) (1993) EOC 92-511.

62. The submission of the Disability Council of NSW specifically argued that a positive obligation of “reasonable accommodation” should be introduced into the ADA and that the Act should contain guidance as to the meaning of “reasonable accommodation” and “undue hardship” within the context of the Act: Disability Council of NSW, Submission at 2.

63. 583 P 2d 621 (1978) at 623.

64. [1997] 3 SCR 624 at para 65.

65. Relevant factors currently include: the nature of the benefit or detriment likely to be caused to any person concerned; the effect of the disability; and the financial circumstances of, and estimated amount of expenditure to be made by, the person claiming unjustifiable hardship.

66. For a further discussion of the special measures provision recommended by the Commission, and the operation of this provision with the proposed definition of discrimination, see Chapter 6 at para 6.97.

67. 401 US 424 (1971).

68. Griggs v Duke Power Co at 431.

69. The development of the disparate impact doctrine after Griggs expanded the scope of actionable discrimination under Title VII and made the defence of discrimination claims difficult. During the 1970s and early 1980s critics claimed that it was “leading employers to abandon objective selection procedures in favour of preferential hiring or quotas”. Later, Supreme Court decisions held that defendants need only prove a business justification, rather than business necessity. Criticisms levelled against these decisions resulted in the passage of the Civil Rights Act 1991 (US). The important feature of this Act is that for the first time the disparate impact theory received legislative recognition by a declaration that facially neutral employment policies that have a disparate impact on protected groups are discriminatory and unlawful as originally set forth in Griggs v Duke Power Co.

70. The concept of indirect discrimination received codification in the Sex Discrimination Act 1975 (UK) and the Race Relations Act 1976 (UK). Although the definitions in both Acts are largely based on the Griggs formulation, they are not identical, particularly in relation to the employer’s defence. Whereas “business necessity” is the US defence, “justifiability irrespective of” the particular ground is the defence in Britain. This is probably wider than the US defence because something not strictly necessary may still be justifiable. The requirement of detriment because of the inability to comply was inserted to ensure that the legislation will only be invoked by genuine victims.

71. Although the Canadian human rights legislation does not specifically define the term “discrimination”, the Supreme Court of Canada delivered a landmark decision on the definition of discrimination in O’Malley v Simpson Sears Ltd (1985) 2 SCR 536. The court unanimously sanctioned the effects concept of discrimination and defined indirect discrimination as arising “where an employer for genuine business reasons adopts a rule or standard which on its face neutral and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes because of some special characteristic of the employee or group, obligations, penalties or restrictive conditions not imposed on other members of the work force.” The definition appears to go beyond Griggs in that such discrimination could occur where the rule or standard complained of had been adopted for “genuine business reasons”.

72. The SDA incorporated a definition of indirect discrimination from its commencement in 1984 as did the DDA in 1992 while the RDA was amended in 1990 to include a definition of indirect discrimination on the ground of race. The SDA’s definition is substantially echoed in the other federal and state legislation.

73. Taken from ADA s 7(1)(c), relating to race discrimination.

74. Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165; Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587; Najdovska v Australian Iron and Steel Pty Ltd [1985] EOC 92-140.

75. (1989) 88 ALR 621.

76. (1989) 168 CLR 165.

77. Banovic at 185-16.

78. Styles at 631, per Bowen CJ and Gummow J.

79. Banovic at 180.

80. Banovic at 179.

81. SDA s 5(2). This approach is also taken in the DA (ACT) s 8(1)(b).

82. The submissions of the Catholic Education Commission NSW and the Gay and Lesbian Rights Lobby also argued that the definition of indirect discrimination should focus on the detrimental effect rather than an inability to comply: Catholic Education Commission NSW, Submission at 16; Gay and Lesbian Rights Lobby, Submission at 2. A number of other submissions to the Commission also argued that the current definition of indirect discrimination is overly confusing and requires legislative clarification: Law Society of NSW, Submission at 4; National Pay Equity Coalition, Submission at 5; D Robertson, Submission at 9.

83. SDA s 7C.

84. SDA s 7B(2).

85. Under the ADA (Qld) s 205, the burden of proof of “reasonableness” in indirect discrimination is placed on the respondent. A number of submissions to the Commission in response to DP 30 also argued that, once indirect discrimination has been established, the burden of proof should then rest on the respondent to show that the requirement is “reasonable” in the circumstances: Anti-Discrimination Board, Submission 1 at 45; M Atallah-Clugston, Submission at 1; Auckland Lesbian and Gay Lawyers, Submission at 1; Commissioner for Equal Opportunity (SA), Submission at 9; Disability Council of NSW, Submission at 1; Gay and Lesbian Rights Lobby, Submission at 15; Legal Aid Commission of NSW, Submission at 1; NSW Ministry for the Status and Advancement of Women, Submission at 28; National Pay Equity Coalition, Submission at 4; NSW Bar Association, Submission at 4; NSW Women’s Advisory Council, Submission at 2.

86. SDA s 7B(2).

87. 401 US 424 (1971).

88. For example: whether there is a right to formal or substantive equality; whether there is a right to protection from dominance; whether there is a right to have differences reasonably accommodated; and whether there is an exception in the case of “special measures” provided for a disadvantaged group.

89. That is “equality of outcome” in addition to “equality of opportunity”.

90. Education is an important function of the ADA: ADA s 119(b) provides that one of the functions of the ADB is to “acquire and disseminate knowledge on all matters relating to the elimination of discrimination and the achievement of equal rights”.

91. See H Charlesworth, “The Australian Reluctance About Rights” in P Alston (ed), Towards an Australian Bill of Rights (Centre for International and Public Law and Human Rights and Equal Opportunity Commission, Canberra, 1994) at 28-33.

92. Disability Services Act 1993 (NSW) s 3; Guardianship Act 1987 (NSW) s 4 and Mental Health Act 1990 (NSW) ch 2.

93. Waters v Public Transport Corporation (1991) 173 CLR 349 at 359.

94. The Interpretation Act 1987 (NSW) s 33 provides that, in the interpretation of a provision of an Act or statutory rule, a construction which promotes the underlying purpose or object of the Act should be preferred.

95. SDA s 3; DDA s 3; EOA (Vic) s 3; EOA (WA) s 3; DA (ACT) s 3 and ADA (NT) s 3. See also SDA Preamble and ADA (Qld) Preamble.

96. The SDA was amended to include both a Preamble and an “objects” clause in 1992 as a result of the recommendations of the Half Way to Equal Report: See Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (AGPS, Canberra, 1992) (the “Lavarch Committee Report”) at 260.

97. SDA s 3 and Preamble; ADA (Qld) Preamble.