Case: Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987 ; (2002) 123 FCR 561
Outcome: cited
The concept of "requirement or condition" within the meaning of s 6 or its State equivalents has been considered in a number of cases. Relevant principles include: &#8226; it is only if the alleged discriminator can be said to have required, in the sense of "obliged" or "compelled" the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance: Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987 ; (2002) 123 FCR 561 at 577, cf Heerey J in Fetherston v Peninsula Health [2004] FCA 485 at [81] &#8226; whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia , use services or access premises, is a question of fact (Dawson and Toohey JJ in Waters 173 CLR at 394 per, Sackville and Stone JJ in Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 143) and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DD Act has been infringed by indirect indiscrimination: Sluggett 123 FCR at 577 &#8226; a requirement or condition may be implicit in the conduct which is said to constitute discrimination: Mason CJ and Gaudron J in Waters 173 CLR at 360, Clarke 138 FCR at 143 &#8226; the requirement or condition in each case will depend on the facts of that particular case, however it should be construed to include any form of qualification or prerequisite, and formulated with some precision: Clarke 138 FCR at 143 &#8226; the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the goods or services provided: Mason CJ and Gaudron J in Waters 173 CLR at 361, Clarke 138 FCR at 142. So, as Mason CJ and Gaudron J pointed out in Waters 173 CLR at 361: "...it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands". &#8226; the expression "requirement or condition" should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Dawson and Toohey JJ in Waters 173 CLR at 394, Clarke 138 FCR at 143. 141 Similarly in Sluggett [2002] FCA 987 ; 123 FCR 561 the nature of the complaint of the applicant, who suffered a disability as a result of childhood polio, in relation to long walks, many stairs, heavy doors, difficult stairways, open walk areas, crowded stairs, the distances between lifts, and the sometimes limited access to lifts at Flinders University, was such that the conduct was alleged to be unlawful in relation to the means of access to the premises pursuant to s 23(1)(c). 142 As I found earlier in this judgment, the respondent had a policy that persons entering its premises not do so accompanied by an animal unless the animal was a guide dog or a hearing dog or unless the animal had been assessed by the respondent as having training and hygiene standards acceptable to the respondent. I have found that the respondent discriminated against the applicant within the meaning of s 6 and s 9(1)(f). Further, as was specifically acknowledged by the respondent in its written submissions (written submissions of the respondent filed 5 September 2006 para 5.11), the respondent refused to allow the applicant with his dogs access to its premises at Cairns Base Hospital on 16 November 2004, or at Smithfield Community Health Centre on 19 November 2004, 24 February 2005, 28 February 2005 and 3 March 2005. 143 On the facts of this case, the respondent has discriminated against the applicant on the ground of his disability by refusing to allow him access to its premises, which conduct is unlawful pursuant to s 23(1)(a). As the respondent noted in written submissions, once management of Cairns Base Hospital had considered the matter after 16 November 2004 it refused to allow the applicant access because it considered that his dogs were ill-behaved, ill-controlled and that there was inadequate evidence of proper assistance dog training (written submissions of the respondent filed 5 September 2006 para 5.11). 150 Finally, I note the very limited defence (or ground of exculpation as so termed by Madgwick J in Cooper [1999] FCA 180 ; 93 FCR 481 and Drummond J in Sluggett [2002] FCA 987 ; 123 FCR 561) in s 23(2) available to a respondent who has breached s 23(1). It is curious that s 23(2) is so narrowly drafted, in comparison for example with the much broader provision in s 24(2) in relation to conduct in breach of s 24(1). However the form in which s 23(2) is drafted is matter for Parliament, not the Court, and does not in my view limit the manner in which s 23(1) should be interpreted. The defence of the respondent as pleaded in relation to unjustifiable hardship was not referable to the design or construction of its premises as contemplated by s 23(2) , and accordingly is of no relevance in the context of s 23. 157 A number of general principles have developed in relation to the concept of "unjustifiable hardship" within the terms of the DD Act . These principles include the following: &#8226; the issue whether the alleged discriminator is potentially subject to unjustifiable hardship arises only once the applicant establishes that the alleged discriminator has engaged in unlawful conduct: Cooper 93 FCR at 491-492, Sluggett 123 FCR at 568, Daglian [2003] FCA at [113]-[114] &#8226; the respondent bears the onus of showing unjustifiable hardship within the meaning of s 24(2): Cooper 93 FCR at 492, Sluggett 123 FCR at 568 &#8226; the concept of "unjustifiable" hardship suggests that some hardship is justifiable, and requires a consideration of whether the hardship is of such a nature or degree as to be unjustifiable following a weighing of relevant factors: Hills Grammar School v Human Rights &amp; Equal Opportunity Commission [2000] FCA 658 ; (2000) 100 FCR 306 at [48] .