Balancing the Act: ADCQ newsletter -
This article first appeared in Balancing the Act , Issue 6, August 1999, pages 2-3.
The Anti-Discrimination Act 1991 (Queensland), like other pieces of legislation, outlines certain behaviours which are unlawful, and also includes various exemptions or exceptions to the general rule. These exemptions are not automatic and are not 'loopholes' in the legislation which can be 'claimed' like a tax deduction; they must be raised and argued. If the argument is successful, the behaviour is considered to be lawful, although it may still be discriminatory.
When the Anti-Discrimination Commission receives a complaint, a response is sought from the person or organisation complained about. It is at this point that an exemption will usually be raised and argued. The onus is on the respondent to prove on the balance of probabilities that the exemption applies in the particular circumstances of the complaint.
However, the division between the Commission and the Tribunal needs to be fully understood in order to appreciate the way in which a respondent can successfully make use of the exemptions. The Commission is not the judicial arm of the process and cannot therefore unilaterally determine or 'rule upon' the application of highly complex questions about exemptions. Such rulings are rightly only the province of the Tribunal which can make decisions about the truth or otherwise of the evidence as well as the credibility of witnesses. When an exemption is raised, the Commission will not decide whether it succeeds if such a determination in any way involves deciding issues of truth or credibility. The Commission will only accept an exemption is made out in the clearest of cases where the application of the exemption is so obvious that the Commission can justifiably terminate the complaint as lacking in substance.
For example, if a courier driver's position is vacant, it is unequivocal that an inherent requirement of the job is for the applicant to have a valid driver's licence. The Commission would have no hesitation in rejecting a complaint from a person who, because of some impairment, cannot obtain a driver's licence. The need to have a driver's licence is an integral part of that job. Alternatively, if a food attendant's job was vacant, you could hardly claim that an inherent requirement of that job is that the applicant have a valid driver's licence. In some circumstances, it might be required legitimately, but in many instances it would not. The Commission would therefore not decide in these uncertain circumstances that the exemption for 'genuine occupational requirement' applied.
At the Commission stage, it is only when an exemption clearly applies that we will use this as a basis for terminating a complaint for want of substance. And obviously, the greater the discretionary component in an exemption (for example, if an exemption contains an assessment of what is 'reasonable') the less likely it will be for the Commission to determine its application in a given situation. This is clearly the case for the 'unjustifiable hardship' defence in impairment cases. A good example of this is highlighted in L v Minister for Education .
In the matter of L v Minister for Education (1996) EOC92-787 the respondent argued successfully on the basis of two exemptions.
L was a seven year old girl who had an impairment which had severe impact on her intellectual development, her ability to communicate, her gross motor skills and her capacity to care for herself in areas such as eating and hygiene. The Education Department sought to exclude her from an ordinary classroom and place her in a special education unit.
The respondent initially argued that it was not discrimination and that they had treated L the same as any other child with behavioural problems. The Tribunal did not accept this and stated that the actions were discrimination on the basis of L's impairment.
The respondent also argued that to keep the child in the regular classroom constituted an unjustifiable hardship on the basis of the demands placed on the teacher and the disruption to the other children. They also argued it cost an extra $41,000 to keep L in the school by the provision of additional resources. The Tribunal agreed that the demands on the teacher and the disruption to other children did constitute unjustifiable hardship although it did not accept the argument that the cost was enough to constitute unjustifiable hardship.
The respondent also argued successfully an exemption under section 106 in that the exclusion was specially authorised by the Education (General Provisions) Act .
The important issue in this case was that money is not always most important. Other aspects of an unjustifiable hardship defence are equally as important, in terms of how people are affected and how many are affected.
The Act sets out exemptions at the end of each area (such as work, education, etc) which apply to that area only, and general exemptions which apply to all areas under the legislation, described in sections 103 to 113.
Nevertheless, some of the more common exemptions argued in this jurisdiction are:
Genuine occupational requirements (section 25)
This section states that: 'A person may impose genuine occupational requirements for a position'.
In order to successfully argue this exemption, it is important that the task required to be undertaken is an essential requirement of the job and not just what has always been done. Employers may need to review their workplace systems and job design, or to undertake a detailed analysis of the position itself. So, if an employer decides not to employ someone because of a disability, for example, they need to be clear about the selection criteria, the duties involved, why this person was unable to do them, and whether r easonable adjustments can be made to enable to person to do the job. If the employer has conducted a thorough selection process with all documentation, the exemption should be able to be successfully argued, although opinions will always vary, and each case is considered on its own merits.
Unjustifiable hardship (section 5)
If a person has an impairment, the Act requires that the employer, landlord or educational institution consider reasonable adjustment. Reasonable adjustments must be made to enable the person with an impairment to do a job, or access a building, or participate in an education program unless to do so would cause unjustifiable hardship. If someone makes a complaint of discrimination on the basis of impairment, the respondent may be able to raise and argue the exemption which states that the provision of any special facilities or services would impose an unjustifiable hardship on them. This exemption is outlined in Section 35, Special services or facilities required, and refers to section 5 of the Act, which describes unjustifiable hardship.
5. Whether the supply of special services or facilities would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example:
a. the nature of the special services or facilities; and
b. the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and
c. the financial circumstances of the person; and
d. the disruption that supplying the special services or facilities might cause;
e. and the nature of any benefit or detriment to all people concerned.
Workplace health and safety (section 108)
Section 108 states that: 'A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work'.
This is a commonly argued exemption, and again it would be necessary for the respondent to provide an analysis of the work and the implications of not discriminating against a person, both for the workplace and other people.
Acts done in compliance with legislation (section 106.(1))
This section states that if the actions of the organisation were necessary to comply with existing legislation, then the discrimination may be exempt under the Act as long as the particular provision being relied on was in place before the Act came into force. The Commission would need to be satisfied that the legislation provides specific authority to act in a particular way, and a respondent would need to provide the Commission with details of the legislation, including appropriate sections, and indicating how the actions of the organisation were necessary to comply with the legislation.
Exemptions, then, provide balance and fairness to the legislation, and allow each case to be considered on its own merits.