Case: Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121
Outcome: considered
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. 66 This submission accords with comments of Sackville and Stone JJ in Clarke [2004] FCAFC 197 ; 138 FCR 121 where, in considering a claim brought against the Catholic Education Office in relation to facilities to be provided to a profoundly deaf child in Year 7, the "base group" was students admitted to Year 7 at the school in the relevant year or, alternatively, all students enrolled at the school in the relevant year. As their Honours also observed at 144: "The other comparator is not, however, specifically identified. But as Dawson J observed in Australian Iron &amp; Steel v Banovic at 187, a 'proportion must be a proportion of something'. This suggests that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person's ability to comply with the requirement or condition is addressed in s 6(c). In any event, it does not accord with the ordinary use of language to refer to the 'proportion' able to comply with a requirement in relation to only one person." 67 In this case the obvious "base group" constitutes members of the community who wish to access Cairns Base Hospital and/or Smithfield Community Health Centre. There is however dispute as to the nature of the comparator group, namely whether it constitutes people with the specific disorder suffered by the applicant (as submitted by Mr Murdoch) or people with a psychiatric disability (as submitted by Mr O'Gorman). Even in relation to the nature of the group, should it be defined as people with the applicant's disorder, evidence is scanty. As was made clear in the evidence of Dr Unwin, schizo-typal personality disorder is the rarest of the personality disorders (TS p 181 ll 40-43). 68 Mr Murdoch has submitted that I should make no finding as to this issue in light of the lack of evidence of the proportion of people with the applicant's disability who cannot comply, and the medical evidence of Dr Unwin that there is no difference between the proportion of people with and without the applicant's disability who can comply. There is no evidence before me as to the proportion of members of the comparator group (however defined) who would have difficulty complying with the requirement or condition of the respondent in this case. 69 However, I am persuaded, as submitted by Mr O'Gorman, that commonsense dictates that the majority of people in the community, including the community which seeks to access Cairns Base Hospital and/or Smithfield Community Health Centre, would have no difficulty accessing the premises without an animal, and do not require an assistance dog to be able to access the respondent's premises. Accordingly for the purposes of s 6 , I am prepared to hold that a substantially higher proportion of persons without the applicant's disability are able to comply with the requirement or condition imposed by the respondent in this case. 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..." 76 The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of their disability, or use palliative and therapeutic devices or auxiliary aids, or be accompanied by an interpreter, reader, assistant or carer. The Act contemplates that a disabled person is entitled to this assistance, or other forms of support such as, for example, a stool in appropriate circumstances ( Daghlian v Australian Postal Corporation [2003] FCA 759) , studies in Auslan for a deaf child ( Clarke [2004] FCAFC 197 ; 138 FCR 121; Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562) or wheelchair access ( Cooper v Human Rights &amp; Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481).