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CONSOLIDATION – COMPARATIVE ANALYSISPART 3 – DEFINITIONS OF DISCRIMINATION

1. Direct and indirect discrimination

Submissions to SDA inquiry

IW v City of Perth (1997) 191 CLR 1

Commonwealth

The ADA, DDA, RDA and SDA distinguish between direct and indirect discrimination. The ADAand DDA use the terms ‘direct discrimination’ and ‘indirect discrimination’ in the headings whilethe RDA and SDA (which are earlier enactments) do not specifically use these terms.

The AHRC Act does not specifically distinguish between direct and indirect discrimination inemployment (ILO discrimination). However the Federal Court in Commonwealth v Hamilton1 heldthat ‘discrimination’ in s 3(1) encompassed both direct and indirect discrimination.

FWA prohibits adverse action against an employee on the basis of a protected attribute (s 351).‘Adverse action’ is defined to include discrimination between employees (eg Table Item 342(1)(d)).‘Discrimination’ is not defined so it is unclear what the relevant test is and whether it extends to theconcept of indirect discrimination. The ordinary meaning of ‘discrimination’ is differentiationbetween different persons or groups; it involves making a distinction in favour of, or against, aperson.

States and Territories

NSW, Vic, Qld, WA, SA, Tas, ACT – distinguish between direct and indirect discrimination.

NT – does not have a separate indirect discrimination provision.

Overseas

The UK Equality Bill distinguishes between direct and indirect discrimination.

The Canadian Human Rights Act contains a general definition of discrimination that incorporatesboth direct and indirect discrimination concepts:

Section 5. It is a discriminatory practice in the provision of goods, services, facilities oraccommodation customarily available to the general public

• to deny, or to deny access to, such good, service, facility or accommodation to anyindividual, or

• to differentiate adversely in relation to any individual,

on a prohibited ground of discrimination.

1 Commonwealth of Australia v Hamilton and Another [2000] FCA 1854

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Discussion

Direct discrimination occurs where the treatment is on its face less favourable (disparate treatmentdiscrimination / formal inequality).

Indirect discrimination occurs where the treatment is on its face neutral, but the impact of thetreatment on one group who share a protected attribute when compared to another group is lessfavourable (adverse impact discrimination / substantive inequality).2

A number of submissions to the SDA inquiry criticised this distinction in the SDA context, statingthat it is artificial, difficult to apply and does not accurately reflect the definition in CEDAW. TheNACLC submitted that the Canadian definition of discrimination be reviewed as a possible workingalternative. It has also been argued that as a result of the decision in Purvis v New South Wales,3

the concept of direct discrimination will prohibit only the most blatant acts of discrimination.

Brennan CJ and McHugh J in IW v City of Perth criticised the Equal Opportunity Act 1984 (WA) asdefining discrimination in a “rigid and often highly complex and artificial manner.”4

The Productivity Commission considered this issue in its report on the DDA and concluded that thedistinction is appropriate and necessary to ensure that the DDA can address discrimination thatarises from different circumstances.5

2 Waters v Public Transport Corporation (1991) 173 CLR 349 at 570 (Dawson and Toohey JJ).3 Purvis v New South Wales (Department of Education & Training) (2003) (hereinafter Purvis) 217 CLR 92.4 IW v City of Perth (1997) 191 CLR 1 at 12.5 Productivity Commission Inquiry Report, Review of the Disability Discrimination Act 1992 (hereinafter ProductivityCommission report on the DDA), at 305.

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2. Direct discrimination – coverage of proposed treatment

AHRC submission to SDA inquiry, recommendation 11: Amend the definitions of discrimination tocover proposed treatment.

Commonwealth

The ADA and DDA apply to both actual and proposed treatment (ss 14(a) and 5(1)).

Section 14(a) of the ADA:

Discrimination on the ground of age—direct discrimination

For the purposes of this Act, a person (the discriminator) discriminates against another person(the aggrieved person) on the ground of the age of the aggrieved person if:

(a) the discriminator treats or proposes to treat the aggrieved person less favourably than,in circumstances that are the same or are not materially different, the discriminatortreats or would treat a person of a different age;

The RDA applies to ‘any act’ (s 9(1)), which may not include proposed treatment, and the SDAdefinition of direct discrimination only covers actual treatment (ss 5, 6, 7 and 7A).

FWA defines ‘adverse action’ to include threatening to take adverse action or organising adverseaction (s 342(2)).

States and Territories

NSW, WA, SA, Tas – do not cover proposed treatment.6

Vic, Qld, ACT, NT – cover proposed treatment.

Discussion

While it is likely that proposed treatment would be covered by the RDA and SDA in most cases,AHRC raised concern that a number of discrimination claims at the State level have failed becausean actual act had not yet occurred.

For example, in Woods v Wollongong City Council7 the NSW Equal Opportunity Tribunaldismissed a complaint in relation to a development approval for a retail complex because there hadbeen no provision of services to the complainant. The complaint concerned the absence ofwheelchair access to the complex in the plans. The complex was constructed without wheelchairaccess and a successful complaint was made requiring some reconstruction. In this case, it wouldhave been more cost effective for both the complainant and the respondent if the matter could havebeen heard before completion of the construction.

6 The NSW law Reform Commission recommended that proposed treatment be covered by the Anti-Discrimination Act1977 (NSW), see Report No 92 (1999), recommendation 4: Relief should be available, in appropriate circumstances, inrelation to threats to contravene the ADA.7 Woods v Wollongong City Council (1986) EOC 92-174

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An example of proposed treatment under the SDA is where an employer advertises a positionalready held by a female employee who had recently requested flexible working arrangements toaccommodate her family responsibilities. As the employer has not yet terminated the employment,the employee may not be able to lodge a complaint and seek an injunctive remedy. Anotherexample of a proposed act is a policy which, if applied, would have a discriminatory effect.

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3. Direct discrimination – standard definition

Section 5 of the SDA represents the standard definition of discrimination currently used in theCommonwealth anti-discrimination Acts (apart from the RDA and AHRC Act) and in NSW, Qld,WA and SA.

Section 5 of the SDA:

(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator)discriminates against another person (in this subsection referred to as the aggrieved person)on the ground of the sex of the aggrieved person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person;or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that arethe same or are not materially different,8 the discriminator treats or would treat a person of theopposite sex.

It is important to note that the definition is not limited to discrimination by reason of the protectedattribute, but also characteristics associated with the protected attribute. This is referred to as‘characteristic extension’ and discussed further below at 3.6.

This standard definition of direct discrimination consists of two elements:

• differential treatment – comparison of the treatment of the complainant with the treatment ofanother person in similar circumstances who does not have the same protected attribute

• causation – reason for the differential treatment was the complainant’s protected attribute

8 The DDA simply refers to ‘circumstances that are not materially different’ rather than ‘same or are not materiallydifferent’ (used in ADA and SDA).

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3.1 Direct discrimination – standard definition - differential treatment (comparator test)

SDA report, recommendation 5: definitions of direct discrimination in sections 5 to 7A of the Actbe amended to remove the requirement for a comparator and replace this with a test of unfavourabletreatment similar to that in paragraph 8(1)(a) of the Discrimination Act 1991 (ACT).

AHRC submission to SDA inquiry, recommendation 6: amend the definition of directdiscrimination to remove the comparator element, along the lines of the equivalent definition in theACT.

Productivity Commission report on the DDA, recommendation 11.2: definition of directdiscrimination in the DDA should be supplemented with examples (either included in the Act orguidelines) to clarify the ‘circumstances that are the same or not materially different’ for thepurposes of making a comparison.

To prove differential treatment in the standard definition of discrimination, the complainant mustestablish:

• actual (or proposed) treatment

• treatment less favourable than treatment of another person without the complainant’s protectedattribute in comparable circumstances – the comparator

The comparator for this purpose can be either a real or hypothetical person, but must:

• not have the same protected attribute as the complainant9

• be in not materially different circumstances as the complainant

The comparator element in the standard definition of discrimination is often criticised as beingunnecessarily complex and artificial. Identifying the appropriate comparator and the circumstancesrelevant for the purposes of the required comparison can be highly complicated and problematic. Itessentially requires the Court to draw a distinction between:

• characteristics associated with the protected attribute that do not form part of the relevantcircumstances (to meet requirement that comparator not have the same protected attribute)

• relevant circumstances for the comparison (to meet the requirement that the comparator be innot materially different circumstances as the complainant)10

The difficulty in drawing this distinction is clearly illustrated by the decision in Purvis whichinvolved a complaint of discrimination on the ground of disability under the DDA. Thecomplainant was a boy with brain injury which caused behavioural problems. He was expelledfrom his school because of his violent behaviour.

The majority11 determined that the comparison required by the DDA is between the treatment of thecomplainant and the treatment of another student without the disorder who behaves in a violent

9 For example, in a sex discrimination complaint by a woman the comparator must be a man.10 Section 5(3) of the DDA clarifies that fact that the complainant requires adjustments because of his/her disability isnot a relevant circumstances for the comparison.11 Gummow, Hayne and Heydon JJ; Callinan J agreeing.

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manner towards others. The majority reasoned that it would be ‘artificial’ to exclude fromconsideration all circumstances connected with the complainant’s disability.12

McHugh and Kirby JJ took a different approach to the construction of the comparator. TheirHonours stated that the complainant was unable to control his violent behaviour because of adisability. This made his circumstances materially different from those of a student who couldcontrol his behaviour but for whatever reason was unwilling to do so.

Their Honours also noted that the definition of discrimination extends to cover characteristics thatare associated with the protected attribute (characteristic extension, see further below 3.5) and that“the purpose of a disability discrimination Act would be defeated if the comparator issue wasdetermined in a way that enabled the characteristics of the disabled person to be attributed to thecomparator”.13 For example, the proper comparator for a job applicant with dyslexia with spellingdifficulties is not a person without dyslexia who also cannot spell. The proper comparator is aperson with dyslexia who can spell with the aid of a computer spell checker and a person withoutdyslexia who can spell.14

Other examples:

Randell v Consolidated Bearing Company (SA) Pty Ltd 15 (disability discrimination): whetherdismissal of trainee with mild dyslexic learning difficulty for poor performance was direct disabilitydiscrimination; comparator – other trainees who had difficulties with their performance.

(Alternative – following McHugh and Kirby JJ’s reasoning – the proper comparator is a traineewith dyslexia who could overcome performance issues with training and assistance and anothertrainee without dyslexia who does not have performance issues.)

Thomson v Orica16 (pregnancy / maternity leave): whether demotion of a female employee who wasdue to return to work after 12 months of maternity leave was discrimination on the ground ofpregnancy, on the basis that maternity leave is a characteristic that appertains generally topregnancy; comparator – similarly graded employee who took 12 months leave and had right toreturn to the same or similar position.

(Alternative – female employee and similarly graded male employee.)

Commonwealth v Evans 17 (sex discrimination): whether constructive dismissal of a femaleemployee because she took carer’s leave and sick leave to look after her children was direct sexdiscrimination, on the basis care of children is a characteristic that generally appertains to women;comparator – male employee who took the same or comparable amounts of leave as thecomplainant.

(Alternative – female employee and male employee with similar experience and qualifications.)

12 Purvis, above n3 at 161 (Gummow, Hayne and Heydon JJ).13 Purvis, above n3 at 134-135 (McHugh and Kirby JJ).14 This example illustrates the existing requirement to make reasonable adjustments in the definition of discrimination –discussed further below at 3.7.15 [2002]FMCA 4416 [2002] FCA 93917 [2004] FCA 654

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3.2 Direct discrimination – standard definition - causation

AHRC submission to SDA inquiry, recommendation 7: clarify (either through legislation orextrinsic materials) that it is not necessary for an applicant to prove that the relevant ground ofdiscrimination was the true basis or real reason for the conduct.

The second element of the standard definition of discrimination is whether the reason for thedifferential treatment was the complainant’s protected attribute.

This requires the Court to objectively assess whether the protected attribute was one of the factorswhich influenced the respondent’s differential treatment of the complainant. It is sufficient that aprotected attribute is a reason for doing the act, even if not the dominant or substantial reason.18

The Commonwealth Acts describe causation in different terms:

• ‘because of’ (ADA, DDA, and SDA – section 7, FWA)

• ‘by reason of’ (SDA – sections 5, 6 and 7A)

• ‘based on’ (RDA)

a protected attribute.19

The issue of what must be proved before causation is made out is not settled.

In HREOC v Mount Isa Mines Ltd20 Lockhart J stated that the phrase ‘by reason of’ should beinterpreted as meaning the same as ‘because of’, ‘due to’, ‘based on’ or words of similar importwhich bring something about or cause it to occur.21 His Honour outlined two different tests forcausation:

• causal link between behaviour and detriment (ie would the complainant have received the sametreatment from the alleged discriminator but for the protected attribute)22

• subjective test (defendant’s reason for doing an act)

His Honour was not convinced that the two approaches were irreconcilable and stated that thequestion is ultimately whether there is a relationship of ‘cause and effect’ between the protectedattribute and less favourable treatment (causative link). However the motive, intention or purposeof the alleged discriminator may be relevant.

The most recent High Court decision on causation, Purvis, offers another test for causation: ‘truebasis’ (Gleeson CJ) or ‘real reason’ (McHugh and Kirby JJ). The ‘true basis/real reason’ test isessentially a subjective test. It requires the court to examine the mental state of the allegeddiscriminator. The ‘true basis/real reason’ test also potentially means that where the allegeddiscriminator may have been motivated by a number of factors, including a protected attribute, it is

18 See s 16 of ADA; s 10 of DDA; s 18 of RDA; s 8 of SDA. There are similar provisions in NSW, WA, Tas, ACT andNT. Vic, Qld and SA require that the protected attribute is the substantial reason for doing that act.19 NSW, WA, - ‘on the ground of’Vic, Tas, NT – ‘on the basis of’SA, ACT – ‘because’Qld – does not explicitly require that conduct was by reason of a protected attribute but this can be inferred20 (1993) 46 FCR 30121 Id at 321.22 See James v Eastleigh Borough Council [1990] 2 AC 751.

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sufficient that the protected attribute was not the ultimate reason for the differential treatment. Thisappears to be inconsistent with provisions in all four Acts which provide that the protected attributedoesn’t have to be the only or dominant / substantial reason for the treatment. The underlyingpolicy appears to be that the protected attribute only needs to have influenced the decision to treatthe complainant differently.

The issue of whether there is a substantive difference between the connective words used inCommonwealth anti-discrimination Acts was considered in Macedonian Teachers’ Association ofVictoria Inc v HREOC.23 In that case Weinberg J stated that the phrase ‘based on’ used in s 9(1) ofthe RDA means ‘by reference to’ and the relevant requirement is one of sufficient connection.24

However it is unclear what ‘sufficient connection’ means in this context and how much broader it isthan the ‘cause and effect’ test. Weinberg J’s ‘sufficient connection’ test has not been discussed insubsequent cases.

The UK Equality and Human Rights Commission in a submission on the Equality Bill raisedconcern with the use of the phrase ‘because of’ as it indicates that it would have to be establishedthat the discriminator consciously intended to treat someone less favourably on the protectedgrounds. The Commission noted that the ‘on grounds of’ formulation is consistent with allEuropean equalities legislation.25

3.3 Direct discrimination – standard definition – causation – motive

AHRC submission to SDA inquiry, recommendation 13: Clarify that it is not necessary for anapplicant to establish that the respondent regarded the relevant treatment as unfavourable or lessfavourable.

All Commonwealth anti-discrimination Acts are silent on whether the motive of the allegeddiscriminator is relevant. NSW, WA, SA and ACT are also silent on relevance of motive.

Vic, Qld, Tas and NT clarify that the motive of the alleged discriminator is irrelevant.

Section 14 of the Anti-Discrimination Act 1998 (Tas):

(3) For direct discrimination to take place, it is not necessary –

(a) that the prescribed attribute be the sole or dominant ground for the unfavourabletreatment; or

(b) that the person who discriminates regards the treatment as unfavourable; or

(c) that the person who discriminates has any particular motive in discriminating.

In Purvis McHugh and Kirby JJ stated that “it is not necessary for the discriminator to have actedwith a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can

23 (1998) 91 FCR 8. The complaint related to a directive by the Premier that State governments and agencies refer tothe language spoken by people living in the Former Yugoslav Republic of Macedonia as “Macedonian (Slavonic)”. Itwas argued that the directed breached section 9(1) of the RDA.24 Id at 33.25 UK Equality and Human Rights Commission, Parliamentary Briefing, Equality Bill, Committee Stage (16 June2009): <http://www.equalityhumanrights.com/legislative-framework/equality-bill/equality-bill-parliamentary-briefings/>

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have a reason for doing something without necessarily having any particular object in mind.”26

Motive may be relevant in determining whether an act was done because of a protected attribute(causation); however the relevant test is an objective test.

Requiring the complainant to establish an actual intention to discriminate would create additionaldifficulties of proof. It may also narrow the current protections – for example, an employer maydismiss a pregnant employee because s/he genuinely believes that it would be unhealthy for thepregnant employee to continue her employment. It could be argued that the employer in this casedid not intend to treat the pregnant employee less favourably.

3.4 Direct discrimination – standard definition – merging the elements of differentialtreatment and causation

The two-step approach in the standard definition of discrimination has been criticised as not alwaysnecessary or appropriate, particularly in cases that require the Court to construct a hypotheticalcomparator. It could be argued that in concluding that the complainant was treated less favourablythan a hypothetical comparator (who does not have the protected attribute but is otherwise in similarcircumstances); the Court is in effect concluding that the protected attribute was a reason for thedifferential treatment.

In Shamoon v Chief Constable of the Royal Ulster Constabulary27 (which involved a complaint ofdirect sex discrimination under the UK Sex Discrimination Act) it was stated that where the identityof the comparator is in question, the issue of whether there was less favourable treatment cannot beresolved without considering, at the same time, the reason for the treatment. It was suggested thatdisputes about the identification of the appropriate comparator could be avoided by concentratingprimarily on why the complainant was treated as s/he was.

It is likely that in most cases where differential treatment is established, it will necessarily lead to aconclusion that the treatment was by reason of the protected attribute.

26 Purvis at 142-143 (McHugh and Kirby JJ).27 [2003] 1 All ER 26.

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4. Direct discrimination – alternative definitions

4.1 Direct discrimination – alternative definitions – RDA and ILO discrimination

Section 9(1) of the RDA and the AHRC Act definition of discrimination in employment(ILO discrimination) depart from the standard definition used in the ADA, DDA and SDA.28

Section 9 of the RDA:

(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction orpreference based on race, colour, descent or national or ethnic origin which has the purposeor effect of nullifying or impairing the recognition, enjoyment or exercise, on an equalfooting, of any human right or fundamental freedom in the political, economic, social,cultural or any other field of public life.

This is both a definitional and substantive provision – it provides a definition of discrimination andscope of the prohibition on discrimination (ie any field of public life). It also does not require thecomplainant to establish differential treatment, only causation and some adverse impact.

The case of Baird v Queensland 29 illustrates that s 9(1) of the RDA does not require comparison intreatment between the complainant and a comparator. The case concerned the payment of belowaward wages to indigenous Australians employed on a mission. The wages were paid out of Crowngrants, which were calculated by reference to below award wages. It was claimed that thecalculation of the grants contravened section 9(1) of the RDA.

In the first instance,30 the primary judge found that the relevant act (calculation of the grants) wasnot discriminatory as it was not ‘based’ on race. This was despite evidence in the form of Cabinetsubmissions showing that the Government referred to the Aboriginality of the persons on thereserves in calculating the grants. The main reason for this conclusion was that there was nocomparator against which to assess the ‘discriminatory element’. That is, the Government did notmake similar grants to facilitate payments to non-indigenous workers: “As to discrimination incalculating the amount of each grant, there is no evidence that the Government calculated paymentsto other organisations using higher wages.”31

On appeal, the Court held that a comparator is not a necessary element of section 9(1), noting that“those suffering the disadvantage of discrimination may find themselves in circumstances quiteunlike others more fortunate than they.”32 The correct approach was to ask:

• whether the calculation was based on below-award wages being paid, as distinct from awardwages being paid

• whether that distinction was based on race, and

• if so, whether there was the relevant effect referred to by s 9(1).

28 NT also adopts a similar definition but limited to specified areas of activity (s 20(1)).29 Baird v Queensland [2006] 156 FCR 45130 Baird v Queensland [2005] FCA 49531 Id at para 138 (Dowsett J).32 Id at 469 (Allshop J).

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4.2 Direct discrimination – alternative definitions – Tasmania and UK

Section 14 of the Anti-Discrimination Act (Tas):

(2) Direct discrimination takes place if a person treats another person on the basis of anyprescribed attribute, imputed prescribed attribute or a characteristic imputed to that attributeless favourably than a person without that attribute or characteristic.

Under the Tas anti-discrimination Act, to prove differential treatment the complainant must prove:

• actual (or proposed) treatment

• treatment less favourable than treatment of another person without the complainant’s protectedattribute – the comparator

The UK Equality Bill uses a similar definition.

Section 13. Direct Discrimination

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, Atreats B less favourably than A treats or would treat others.

The only difference with the standard definition is that it does not mandate that the comparator be insimilar circumstances as the complainant. It appears to allow for a less restrictive approach toidentifying the appropriate comparator.

For example, in Lawler v The Mercury the Tribunal stated that the Tasmanian provision is differentin terms to relevant legislation in other Australian jurisdictions and therefore “a more generalprocess of evaluation and comparison is appropriate in determining whether a complainant has beentreated less favourably than someone without that attribute would have been treated ....a specificactual person as comparator need not be identified, and that a hypothetical comparator of a personwithout that attribute can suffice.”33

4.3 Direct discrimination – alternative definitions – detriment test

ACT and Vic use what is described as the ‘detriment test’.

Section 8(1) of the Discrimination Act (ACT):

What constitutes discrimination

(1) For this Act, a person discriminates against another person if—

(a) the person treats or proposes to treat the other person unfavourably because the otherperson has an attribute referred to in section 7

33 [2006] TASADT 7, paras 151 – 154.

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This approach removes differential treatment (and therefore the comparator element) from thedefinition of discrimination. To prove discrimination the complainant needs to establish:

• actual (or proposed) treatment

• resulting in disadvantage

• reason for the treatment was the complainant’s protected attribute (causation)

This definition is consistent with the definition of discrimination in the RDA and ILOdiscrimination. It focuses on what caused the treatment and the consequences on the complainant.However some element of comparison may be necessary and useful in some cases to ascertainwhether the treatment was in fact disadvantageous.

In Prezzi, Patricia Anne and Discrimination Commissioner 34 the ACT Administrative AppealsTribunal noted concern that not including some element of comparison involves some difficulty,particularly where all of the available courses of action may produce an unfavourable result for thecomplainant.

The Productivity Commission in its report on the DDA concluded that the alternative approaches –‘unfavourable’ or ‘detriment’ tests – inevitably requires a notional or theoretical comparison of thetreatment of the person with the protected attribute and the treatment that person would havereceived if they did not have that attribute. The Productivity Commission states that “for all intentsand purposes, these different approaches are applied in a similar manner and achieve similaroutcomes”.35

However, the Productivity Commission recommended that greater clarity could be provided forwhat constitutes circumstances that are ‘not materially different’ for the purposes of the comparatortest.

34 [1996] ACTAAT 13235 Productivity Commission report on the DDA, at 307.

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5. Direct discrimination – characteristic extension

AHRC submission to SDA inquiry, recommendation 5: Amend the wording of the characteristicsextension in the definitions of direct discrimination to include characteristics that are actuallyimputed by the alleged discriminator, even if not generally imputed by others.

Commonwealth

The ADA and SDA broaden the scope of the protected attribute to include:

• characteristics that appertain generally to persons with a protected attribute

• characteristics that is generally imputed to persons with a protected attribute

‘Disability’ in the DDA is also broadly defined to include a disability:

• imputed to a person (ie disability that person does not in fact have, but is assumed to have)

• a symptom or manifestation of the disability

It is unclear whether this definition of disability would cover characteristics generally imputed topersons with the disability. For example, a characteristic imputed to a person with HIV/AIDS maybe risk-taking behaviour. Risk-taking behaviour is not a manifestation of HIV/AIDS or a disabilityitself. Such a characteristic is likely to be covered under the ADA and SDA approach.

It is unclear whether the ADA and SDA covers imputed sex and age like the DDA.

The RDA does not have similar provisions broadening the scope of the protected attributes.

States and Territories

All States and Territories extend the protected attribute to include characteristics of the protectedattribute. Some formulations are broader than the ADA/SDA formulation:

Section 7(2) of the Discrimination Act (ACT):

In this Act, a reference to an attribute mentioned in subsection (1) includes –

(a) a characteristic that people with that attribute generally have; and

(b) a characteristic that people with that attribute are generally presumed to have; and

(c) such an attribute that a person is presumed to have; and

(d) such an attribute that the person had in the past but no longer has.

Section 8 of the Anti-Discrimination Act 1991 (Qld):

Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on thebasis of –

(a) a characteristic that a person with any of the attributes generally has; or

(b) a characteristic that is often imputed to a person with any of the attributes; or

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(c) an attribute that a person is presumed to have, or to have had at any time, by theperson discriminating; or

(d) an attribute that a person had, even if the person did not have it at the time of thediscrimination.

Example of paragraph (c) –

If an employer refused to consider a written application from a person called Viv because itassumed Viv was female, the employer would have discriminated on the basis of an attribute(female sex) that Viv (a male) was presumed to have.

Discussion

Commonwealth anti-discrimination Acts broaden the scope of protected attributes to include:

• protected attribute imputed to a person (DDA)

• characteristics generally imputed to persons with protected attribute (ADA, SDA)

• characteristics that appertains generally to persons with protected attribute / symptom ormanifestation of attribute (ADA, DDA, SDA)

This recognises that in most cases less favourable treatment occurs because of characteristicsassociated with a protected attribute rather than the attribute per se.

For example, an employer may refuse to employ women for positions requiring physical strengthbecause the employee believes that women are not as strong as men. Another example is where ahotel refuses to rent rooms to Indigenous people because it is assumed that Indigenous people aremore likely to drink excessively and cause property damage. It could be argued that the reason forthe differential treatment in both examples was not the protected attributes of sex and race, rathercharacteristics imputed to people of a particular sex and race.

In such cases it is highly likely that even without extending the protection to characteristicsassociated with the protected attribute, the court would find that the protected attribute was thereason for the less favourable treatment. There is a clear connection between the protected attributeand the characteristic imputed to that protected attribute (whether generally or only by the allegeddiscriminator). However, characteristic extension provisions clarify that Acts cannot be evaded by“using such ‘proxies’ for discriminating on the basic grounds covered by the legislation.”36

36 Purvis, above n 2 at 134 (McHugh and Kirby JJ).

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6. Indirect discrimination – standard definition

The elements of indirect discrimination under the ADA and SDA are:37

• imposition (or proposed imposition) of a condition, requirement or practice

• condition, requirement or practice disadvantages or is likely to disadvantage persons with sameprotected attribute as complainant

• not reasonable in circumstances (onus of proof on discriminator)

The DDA and RDA require the complainant to prove in addition that s/he cannot comply with therequirement because of the protected attribute. This additional element was inserted in the DDA bythe Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. Theprevious definition of indirect discrimination in the DDA did not require the complainant to showthat their inability to comply with the requirement or condition was because of their disability.

ADA, DDA and SDA specifically apply to proposed acts of indirect discrimination whereas theRDA does not specifically cover proposed treatment.

The SDA also lists matters relevant to determining whether a condition, requirement or practice isreasonable:

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition,of the condition, requirement or 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, orproposes to impose, the condition, requirement or practice.

The standard definition of indirect discrimination consists of the following elements:

• imposition (or proposed imposition) of a condition, requirement or practice

• complainant cannot comply because of the protected attribute (only for DDA and RDA)

• condition, requirement or practice disadvantages or is likely to disadvantage persons with sameprotected attribute as complainant

• condition, requirement or practice not reasonable in circumstances (onus of proof ondiscriminator - except in the RDA, see s 1A)

All States and Territories use the reasonableness test; however there are variations in the definition:

NSW, Qld, WA, SA Vic, Tas, ACT (ADA, SDA)• requires compliance with a

requirement/condition/practice• is more easily satisfied by persons without

the protected attribute38

• requirement or condition not reasonable incircumstances

• complainant does not or cannot comply

• imposition of a condition, requirement orpractice

• not reasonable in circumstances• disadvantages member of group who share a

protected attribute

37 Vic, Tas and ACT use the same definition.38 Higher proportion (NSW, Vic, Qld) or substantially higher proportion (WA, SA) of people without protected attributecan comply.

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6.1 Indirect discrimination – standard definition - condition, requirement or practice

AHRC submission to SDA inquiry, recommendation 9: Amend the SDA to remedy the narrowapproach taken in certain cases to the requirement, condition or practice element, such as byproviding that an applicant must simply establish that the relevant circumstances (including anyterms, conditions or practices imposed by the respondent) disadvantaged women (or other relevantgroups). The onus would then shift to the respondent to establish that the relevant circumstanceswere reasonable.

‘Condition, requirement or practice’ was defined broadly by the High Court in Australian Iron &Steel Pty Ltd v Banovic as encompassing ‘any form of qualification or prerequisite demanded by anemployer of his employees.’39 In Waters v Public Transport Corporation the High Court found thata proposed change to the operation of trams (removing conductors) imposed a requirement orcondition. Further, it is not necessary to show that the relevant requirement or condition wasimposed or is proposed to be imposed by a positive act.

Other decisions have adopted a more restrictive interpretation of ‘condition, requirement orpractice’.

In Kelly v TPG Internet Pty Ltd40 it was decided that an employer’s refusal to provide part-timework upon return from maternity leave did not amount to indirect discrimination as there was norelevant requirement, condition or practice. The court distinguished a refusal of anemployment-related benefit from a requirement, condition or practice of employment. Howeverthis case appears to depart from the general line of authority.41

In New South Wales v Amery 42 it was argued that the different pay scales for permanent andlong-term casual teachers under a NSW industrial award indirectly discriminated against women aswomen were more likely to be engaged on a casual basis. The majority of the High Court foundthat ‘permanence’ could not be described as a ‘requirement’ within the meaning of the NSWAnti-Discrimination Act as casual teachers and permanent teachers were employed in differentoccupations.

In dissenting judgement Kirby J stated that this approach “effectively allows a discriminator, by thecategories of employment that it adopts, to walk straight out of the AD Act. It affords considerablescope for employers to circumvent remedial laws ... By the majority’s reasoning, all that is requiredin order to do so is for an employer to adopt the simple expedient of defining narrowly the‘employment’ that is offered.”43

39 (1989) 168 CLR 165 at 185 (Dawson J) – in context of the Anti-Discrimination Act 1997 (NSW).40 (2003) 176 FLR 21441 See for example Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122; Mayer v Australian Nuclear Scienceand Technology Organisation [2003] FMCA 209.42 (2006) 230 CLR 174 - in context of similar provisions of the Anti-Discrimination Act 1997 (NSW).43 Id at 778 (Kirby J).

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6.2 Indirect discrimination – standard definition – test of reasonableness

SDA report, recommendation 6: Replace the reasonableness test with test requiring that impositionof the condition, requirement or practice be legitimate and proportionate.

AHRC submission to SDA inquiry, recommendation 10: Review the standard of reasonableness tobecome more closely aligned with human rights based principles of legitimacy and proportionality.

Productivity Commission report on the DDA, finding 11.4: The proportionality test in the definitionof indirect discrimination in the DDA is unnecessarily complex and places an unwarranted burdenof proof on complainants.

Productivity Commission report on the DDA, finding 11.5: The definition of indirect discriminationin the DDA does not provide sufficient guidance on how to determine whether a requirement orcondition is not reasonable.

ACCI submission to SDA inquiry: noted difficulties with application of concept of indirectdiscrimination and that “some decisions of tribunals and courts have applied discrimination law toconduct not originally thought to have been covered, with attendant uncertainty thereby beingcreated for business policy, management and planning.”

The reasonableness test is used in all jurisdictions. There are statutory guides to reasonableness inthe SDA and in Vic, Qld and ACT.

What is reasonable depends on the particular circumstances of the case. The test of reasonablenessis an objective test described in Secretary, Department of Foreign Affairs and Trade v Styles as“less demanding than one of necessity, but more demanding than one of convenience”.44

In Waters v Public Transport Corporation Brennan J stated that there are two aspects to thecriterion of reasonableness:

• whether imposition of the condition is appropriate and adapted to the performance of theactivity or the completion of the transaction

• whether the activity could be performed or completed without imposing a requirement orcondition that is discriminatory or that is discriminatory as the requirement or conditionimposed

Relevant factors may include financial circumstances, ability to accommodate needs of complainantand availability of alternative approaches which could achieve same aims in less discriminatoryway.45

The reasonableness test has been criticised by the AHRC which suggested the adoption of the UK‘legitimate and proportionate’ test.

Section 19. Indirect discrimination (UK Equality Bill)

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion orpractice which is discriminatory in relation to a relevant protected characteristic of B’s.

44 (1989) 23 FCR 251 at 263 (Bowen CJ and Gummow J).45 Commonwealth Bank of Australia v HREOC (1997) 80 FCR 78.

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(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory inrelation to a relevant protected characteristic of B’s if –

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particulardisadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

It is unclear whether there is a significant difference between a respondent being required to provethat the practice is a proportionate means of achieving a legitimate aim as opposed to beingreasonable in the circumstances. It may prove more onerous for the alleged discriminator to provethat the requirement was directed towards a legitimate aim rather than being appropriate in thecontext of the activity.

6.3 Indirect discrimination – standard definition – ability to comply

AHRC submission on DDA Bill 2008, recommendation 3: the definition of indirect discriminationmirror that under the SDA, to require an aggrieved person to show that the discriminator imposes,or proposes to impose, a requirement or condition that has, or is likely to have, the effect ofdisadvantaging persons with the aggrieved person’s disability.

Only the DDA and RDA require the complainant to show that s/he is unable to comply with therequirement, condition or practice because of the protected attribute. This was inserted in the DDAas part of the 2009 amendments. AHRC has raised concern about requiring the complainant toprove that s/he cannot comply because of the protected attribute. AHRC has not specifically raisedconcern with requiring the complainant to show that s/he cannot comply.

In the DDA context, inability to comply has been interpreted as being satisfied not only where it isimpossible for the complainant to comply, but also where compliance would inflict ‘seriousdisadvantage’ on the complainant. In Hurst v Queensland46 the Court considered whether a deafchild whose first language was Auslan was indirectly discriminated against because her educationwas provided in signed English. Her claim had failed because she could not show that she wasunable to be educated in signed English. The Court allowed the appeal, stating that it is sufficientto show that a disabled person will suffer serious disadvantage in complying with a requirement,irrespective of whether that person can cope with the requirement or condition.

However AHRC has noted that in another case, Hinchcliffe v University of Sydney,47 the Courtfound that the complainant was not disadvantaged seriously enough to prove that she could notcomply with the requirement.

In the RDA context, inability to comply has been interpreted to mean a person’s practical ability tocomply. For example, in Mandla v Dowell Lee48 the House of Lords considered that while it wasnot impossible for Sikh men to comply with a dress code prohibiting the wearing of turbans, it

46 151 FCR 56247 (2004) 186 FLR 37648 [1983] 2 AC 548

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would require them to give up their customs and cultural rules. This would effectively strip theprotection afforded by the Act.

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7. Direct and indirect discrimination – disability – reasonable adjustments

Productivity Commission report on the DDA, recommendation 8.1: DDA should be amended toinclude a general duty to make reasonable adjustments. Reasonable adjustments should be definedto exclude adjustments that would cause unjustifiable hardship. The person or persons on whom theduty would fall should be identified. Examples of how the duty might apply should be included ineach area of the Act.

AHRC submission on DDA Bill 2008, recommendation 5: removing ss 5(2) and 6(2) and insertingnew provision that defines discrimination as occurring when the discriminator refuses or fails tomake reasonable adjustment. The definition of ‘reasonable adjustment’ should also be changed toan adjustment that alleviates disadvantage and provides equal opportunity.

AHRC submission on DDA Bill 2008, recommendation 6: include examples of reasonableadjustments as notes or in EM.

AHRC submission on DDA Bill 2008, recommendation 7: should current framework be retained,make it clear that respondent bears onus of proving that an adjustment would impose anunjustifiable hardship.

The DDA definitions of direct and indirect discrimination make explicit that failure the failure tomake reasonable adjustments can amount to discrimination. The provisions on reasonableadjustments were inserted in 2009.

The elements of direct discrimination involving failure to make reasonable adjustments are:

• failure to make reasonable adjustments for the complainant

• failure has effect of differential treatment on the complainant

• reason for the differential treatment was the complainant’s disability (causation)

Circumstances are not materially different because of the fact that, because of the disability, theaggrieved person requires adjustments (s 5(3)).

The elements of indirect discrimination involving failure to make reasonable adjustments are:

• imposition (or proposed imposition) of a condition or requirement

• complainant can only comply with the condition if the discriminator made reasonableadjustments

• failure to make those reasonable adjustments

• failure is likely to disadvantage persons with same disability as complainant

• condition or requirement not reasonable in circumstances (onus of proof on discriminator)

‘Reasonable adjustment’ is defined as “adjustment to be made by a person is a reasonableadjustment unless making the adjustment would impose an unjustifiable hardship on the person”.

The reasonable adjustments provisions do not create a new duty; rather it clarifies an existing dutyto make reasonable adjustments (or accommodations) to avoid unlawful discrimination.

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Only Victoria explicitly provides for a positive duty to make reasonable adjustments. The VictorianEqual Opportunity Act 2010 imposes a separate duty to make reasonable adjustments inemployment, education, provision of services and land dealings:

20. Employer must make reasonable adjustments for person offered employment or employeewith an impairment

(1) This section applies to a person with an impairment who—

(a) is offered employment or is an employee; and

(b) requires adjustments in order to perform the genuine and reasonable requirements ofthe employment.

(2) The employer must make reasonable adjustments unless the person or employee could notor cannot adequately perform the genuine and reasonable requirements of the employmenteven after the adjustments are made.

Example An employer may be able to make reasonable adjustments for a person or employeewith an impairment by—

• providing a ramp for access to the workplace or a particular software package forcomputers;

• modifying work instructions or reference manuals;

• allowing the person or employee to be absent during work hours for rehabilitation,assessment or treatment;

• allowing the person or employee to take breaks more frequently.

40. Educational authority must make reasonable adjustments for person with an impairment

(1) This section applies if a person with an impairment requires adjustments in order toparticipate in or continue to participate in or derive or continue to derive any substantialbenefit from an educational program of an educational authority.

(2) The educational authority must make reasonable adjustments unless the person could notparticipate in or continue to participate in or derive or continue to derive any substantialbenefit from the educational program even after the adjustments are made.

Example An educational authority may make reasonable adjustments for a person with animpairment by—

• providing a teacher's aide or particular software packages for computers;

• moving a particular course or event from an inaccessible venue to an accessible one.

The main difference between the Vic model and DDA is the incorporation of the comparator indirect discrimination involving failure to make reasonable adjustments under the DDA. Whiledifferent formulations are used, it is unclear whether there would be significant difference inoutcome. The examples provided in the Victorian Act are likely to also apply to the DDA.

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8. Direct and indirect discrimination – onus of proof

AHRC submission to SDA report, recommendation 8: Amend the SDA to make establishingcausation more achievable, such as by:

• directing courts to draw an adverse inference where a respondent fails to establish anon-discriminatory basis for its conduct;

• shifting the onus to the respondent to establish a non-discriminatory basis for its conduct incircumstances where its conduct was plausibly based (in whole or in part) on a protectedattribute or characteristic, such as along the lines of s 63A of the Sex Discrimination Act 1975(UK); or

• reversing the onus of proof in relation to establishing causation, along the lines of s 664 of theWorkplace Relations Act 1996 (Cth)

The complainant must prove all elements of direct discrimination under each of the Commonwealthanti-discrimination Acts. This is also the case in each of the States and Territories.

The ADA, DDA and SDA provide that the alleged discriminator must prove that the condition,requirement or practice is reasonable in the circumstances. The RDA puts the onus of proof on thecomplainant.

FWA reverses the onus of proof in respect of causation only by requiring that the respondent provethat the reason for the action was not unlawful (s 361):

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a persontook, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention ofthis Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, takenfor that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

Adopting the FWA model in the anti-discrimination context, the complainant would need to proveon the balance of probabilities under current definition of direct discrimination:

Direct discrimination

• actual (or proposed treatment)

• treatment less favourable than treatment of another person without the complainant’s protectedattribute in comparable circumstances

• causation presumed unless rebutted by respondent

It is unclear how the FWA approach could be applied to indirect discrimination as it is notnecessary that the requirement, condition or practice was put in place because of a protectedattribute; rather it is necessary to prove that in fact it differentially impacts on a particular groupwith a protected attribute. Under indirect discrimination provisions in the ADA, DDA and SDA,

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the onus of proving that the condition, requirement or practice was reasonable in the circumstancehas already been shifted to the respondent.

The US and UK have taken different approaches to onus of proof.

In the US:

• complainant first must establish a prima facie case of discrimination (circumstantial evidencepresented is sufficient to create an inference - rebuttable presumption - of unlawfuldiscrimination)

• respondent must respond with a legitimate, non-discriminatory reason for the actions

• complainant must establish that this reason was a pretext to mask unlawful discrimination

The UK Equality Bill similarly places the onus of proof on the respondent once the complainant hasestablished sufficient facts from which an inference of discrimination may be drawn (ie prima faciecase):

Section 135 Burden of proof

(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation,that a person (A) contravened the provision concerned, the court must hold that thecontravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4) The reference to a contravention of this Act includes a reference to a breach of an equalityclause or rule.

(5) This section does not apply to proceedings for an offence under this Act.

Adopting the US and UK approach would require the complainant to establish a prima facie case(all elements), then the burden would shift to the respondent to prove that discrimination had not infact occurred on the balance of probabilities.