Case: Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349
Outcome: cited
Prior to closing submissions, Mr O'Gorman for the applicant stated he no longer pressed the applicant's direct discrimination claim under s 5 DD Act (TS p 285 ll 29-31). I note that it has been held in numerous cases that findings of direct and indirect discrimination are mutually exclusive ( Australian Medical Council v Wilson (1996) 68 FCR 46, Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349), and that the applicant in this case chose to pursue an indirect discrimination claim under s 6 DD Act , as well as a separate claim pursuant to s 9. 53 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. 70 Principles relevant to this question were summarised by Sackville and Stone JJ in Clarke 138 FCR at 145-146 as follows: "i. The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111; ii. The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263; Deane J in Waters v Public Transport Corporation at 395-396 per Dawson and Toohey JJ, at 383. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Lockhart J in Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83; iii. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62; Sackville J in Commonwealth Bank v HREOC at 112-113; and iv. The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395... However the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable..."