RELEVANT ASPECTS OF THE DISABILITY DISCRIMINATION ACT
12 The DDA, like other anti-discrimination legislation (whether state or federal), represents a compromise by the Parliament between the protection and advancement of the right to equality of treatment and opportunity enjoyed by people with disabilities, and the interests of other groups in the community who interact with people with disabilities and whose conduct, though it might be discriminatory, Parliament makes a legislative choice to exempt from compliance with prohibitions on discrimination.
13 The fact of this compromise was recognised in Waters v Public Transport Corporation (1991) 173 CLR 349 at 362-363 per Mason CJ and Gaudron J, at 409-410 per McHugh J. Legislative compromises of this nature may be reflected in statutory language which is deliberately opaque. Writing extra-judicially, then Chief Justice Spigelman observed:
The concept of attributing an intention to a legislature poses a number of problems. Indeed, there may not have been any actual intention at all. The words of a statute may represent a compromise between contending positions, where the actual working out of the application of the statute is, in practice, left to courts precisely because those responsible for the legislation are not able to agree on what the position should be. In a sense, each group is prepared to take its chances in court.
(Spigelman JJ, "The Poet's Rich Resource: Issues in Statutory Interpretation" (2001) 21 Aust Bar Rev 224 at 225-226.)
14 The statutory language of the DDA is an example. The facts of this case, and the parties' respective arguments, call for the resolution by interpretation of several aspects of that opaqueness. In doing so, the Court should remain faithful to the text, context and purpose of the legislative scheme, although application of this guidance in a scheme which is inherently a compromise requires reconciliations on which reasonable minds might differ. There are constructional choices to be made. The Court must make them trying as best it can to remain close to the language Parliament chose to use, in the context it chose to use it, and applying the legislative purpose, objectively ascertained.
15 The applicant's claims concern amendments to the DDA made by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth), which introduced s 5(2) of the DDA, incorporating a new characterisation of what "discrimination" means for the purposes of the DDA.
16 The explanatory material stated that the amendments were designed to implement the recommendations of the Productivity Commission, themselves in part a consequence of the High Court's decision in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62. The Commission's recommendations are found in its Review of the Disability Discrimination Act 1992 (Report No 30, 30 April 2004) where it observed (at Overview, pp XL-XLI):
A reasonable adjustment duty
Until recently, it had been presumed that the DDA obliged affected organisations to make 'reasonable adjustments' to accommodate the needs of people with disabilities. Although the term 'reasonable adjustment' does not appear in the DDA, various features of the Act seemed to imply such an obligation. However, a recent High Court decision questioned this presumption and appears to have narrowed significantly the protection that the Act was previously thought to provide.
The Commission considers that substantive equality is a sound basis for disability discrimination legislation. It therefore endorses the concept of reasonable adjustment as a means to this end, and recommends that it be included explicitly in the Act as a stand alone duty. This would mean that failure to provide reasonable adjustment could itself be unlawful discrimination and the subject of a complaint.
The Commission makes this recommendation provided that the duty is always subject to the unjustifiable hardship defence. 'Reasonable adjustment' should be defined to exclude adjustments that would cause unjustifiable hardship. This safeguard is necessary to ensure that adjustments are likely to produce net benefits for the community, and do not impose undue financial hardships on the organisations required to make them.
Even in the absence of an explicit reasonable adjustment duty, there are strong grounds for ensuring that the unjustifiable hardship defence applies to all areas of the Act, including: education after enrolment; employment between hiring and firing; and administration of Commonwealth laws and programs. Some people are opposed to the Australian Government having recourse to this defence, presuming that it has greater resources at its disposal. But any government expenditure has an opportunity cost, and to devote resources to making adjustments that do not have net community benefits is just as wasteful as it is in any other area covered by the DDA.
The DDA should also require that unjustifiable hardship be included in all disability standards introduced under the Act, including current draft standards.
Who pays?
Any obligation to make adjustments raises the vexed question of who should pay for those adjustments: the organisations concerned, or the community more broadly. There are good arguments for both to be involved (box 5). In some cases, the costs can be spread across different groups. For example, the costs of accessible public transport might be met partly by transport providers (through lower earnings), their customers (through higher fares) and by taxpayers (through subsidies). But in other cases organisations might not be able to pass on the costs.
Two approaches could be adopted to help broaden the obligation to fund adjustments. The Commission is recommending that:
• the unjustifiable hardship test also require that consideration be given to efforts taken by the organisation to access financial and other assistance. This would mean that the organisation could not use ignorance of existing programs as a defence.
• the Australian Government review existing arrangements for funding adjustments and consider portable access grants to support participation in employment and education.
17 Section 5(2) of the DDA deals with the subject matter of the Commission's recommendations. It provides:
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
18 The definition of "reasonable adjustment" is critical to the disposition of the issues in this proceeding. The explanatory material (see Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) at [28]-[29], [35] (2008 Explanatory Memorandum)) acknowledges the concept of "reasonable adjustments" is drawn from the Convention on the Rights of Persons with Disabilities, although the term in the Convention is "reasonable accommodation". Article 2 of the Convention defines reasonable accommodation in the following terms:
"Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
19 Australia became a party to the Convention on 17 July 2008. It acceded to the Optional Protocol to the Convention on 21 August 2009, which became effective in Australia on that date. Article 5(3) of the Convention provides as follows:
In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
20 Although the phrase chosen by the Parliament is slightly different, it is clear that these amendments were made in pursuance of Australia's international obligations under the Convention. If there is a constructional choice, a construction of s 5(2), and those provisions designed to interact with it, which is consistent with those obligations should be preferred, insofar as the text and context otherwise allow: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22 at [97] per Gummow and Hayne JJ; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [247] per Kiefel J; SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 at [59].
21 This approach is important when the breadth of the statutory definition of "reasonable adjustment" is considered. Section 4 of the DDA defines "reasonable adjustment" in the following terms:
an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
22 Thus, s 4 has effect as a deeming provision. The word "adjustment" is left undefined by the statute and is to be given its ordinary meaning as "an alteration or modification": Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the Court in the second instance to determine whether an adjustment is "reasonable". Although the word "reasonable" is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.
23 To what does the adjustment relate? By s 5(2), it is made "for" the person with a disability. It is not made "to" the position the person occupies. It is not made "to" the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification "for" the person, which operates on the person's ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word "adjustment" in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an "adjustment" that, a decade or two ago, may have been little more than a theory.
24 Similarly, the range of disabilities covered by the DDA, evident from the definition of "disability" in s 4 (some with clear physical manifestations and some without), means that the range of modifications for a particular person may be very specific to that person. Two individuals may have the same "disability" but how that "disability" manifests itself, and the impact it has on an individual's capacity to work or access services or education, may vary widely. Breadth and flexibility in the meaning of the word "adjustment" is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals. Where the disability is psychological, "adjustment" must be construed in a way which will ensure the same level of protection under the DDA to those with this kind of disability as to those with any other disability. Ultimately then, so long as it is a modification or alteration "for" a person with a disability, the DDA says nothing about how specific or non-specific the adjustment must be. An adjustment "for" a person may involve only technology, or it may involve only human interactions, or something in between. An adjustment "for" a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an "adjustment".
25 There is one relevant qualification to the breadth of what can constitute an "adjustment" for the purposes of the DDA, as Australia Post submitted. Even taking into account the potential need for flexibility and adaptations, the adjustment must be sufficiently identifiable so as to enable the alleged discriminator (and the Court if need be) to determine whether making the adjustment will impose unjustifiable hardship on the discriminator. Otherwise, the exception in s 21B could be frustrated. For the reasons I express below at [45], this issue also arises under s 21A(1) in respect of the inherent requirements exception. The level of specificity required will be a factual question in each case.
26 It will be noticed that the definition of "reasonable adjustment" in s 4 uses the singular, and s5(2) uses the plural. For the purposes of the operation of s 23 of the Acts Interpretation Act 1901 (Cth), in my opinion the DDA exhibits a contrary intention. The use of the plural in the provision which imposes an enforceable obligation conveys an intention to capture the variety of circumstances, and the variety of disabilities, which may need to be accommodated. More than one adjustment may be necessary. More than one option may be available. The use of the plural is consistent with the imposition of an obligation that may require several steps, alternatives, processes or modifications for one person. The use of the plural allows for that possibility.
27 The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a Court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it "for" the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose. The legislative choice about what is "unreasonable" for the purposes of this scheme is expressed in the inherent requirements exception, and in the concept of unjustifiable hardship. I deal with these provisions in more detail at [35] and [57] below. One consequence is that what constitutes "hardship" and the circumstances in which it might be "unjustifiable" may be broader than if the statute used reasonableness as a criterion of liability.
28 A further construction issue posed by s 5(2)(a), relevant to the current proceeding, is how the phrase "does not make, or proposes not to make" should be construed. The first part of the phrase is clear enough: it concerns the factual situation at the time a Court assesses whether s 5(2) has been contravened. It directs attention to whether, as a matter of fact at that time, reasonable adjustments have been made. The second part directs attention to a (negative) position of the alleged discriminator, and also involves some speculation about the future. One construction question is whether the second part of the phrase is to be determined only by reference to the subjective intentions of the discriminator. Ordinarily, motive (that is, the reason a person has herself or himself for achieving an object, or seeking to achieve an object) is not relevant in determining why a person acted as she or he did for the purposes of establishing discrimination: see Purvis 217 CLR 92; [2003] HCA 62 at [148]-[166] per McHugh and Kirby JJ.
29 In Nagarajan v London Regional Transport [2000] 1 AC 501 at 511, Lord Nicholls of Birkenhead said:
For the purposes of direct discrimination … the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign.
30 In my opinion, two points should be made about the construction of the phrase "proposes not to make" in s 5(2)(a). First, it is not directed to intention or motive. It requires an objective judgement about the position taken by the alleged discriminator. It should not be regarded as intending an assessment of the discriminator's subjective and ongoing state of mind. Consistently with the approach in Purvis 217 CLR 92; [2003] HCA 62, the statute requires a determination, as a matter of fact at the point in time when the discriminator's conduct is challenged, of what the discriminator's position in fact is.
31 Second, it is intended to identify a different factual situation from the phrase "does not make". The latter looks to what has or has not been done by the time of complaint, in circumstances where the complainant says something should have been done. If, in a given factual situation, the time for making reasonable adjustments has not yet been reached (for example, because the disabled worker has not started a job, has not returned to work, or there is an anticipatory refusal by the discriminator) then that is one circumstance in which the second part of the provision has work to do. It will also have work to do when there is continuing discrimination at the time a claim comes to be determined: in that situation both limbs may be engaged on the facts.
32 Further, s 5(2) as a whole must be construed in a way that allows it to operate in a practical way in the workplace, and in the educational and other settings with which the Act deals. Adjustments may be simple, but also complex. Not only complex because of technical or technological requirements, but also perhaps because of personnel and workplace requirements. Time may be needed to implement them. Part of the work to be done by the second limb is to allow for the position of a discriminator who recognises her or his legal responsibilities, but the implementation of adjustments requires a period of time. In those circumstances, it cannot be said, consistently with the proper construction of the provision, that a discriminator "proposes not to make" reasonable adjustments. The period of time during which it might be said, in a given factual situation, that a discriminator has acknowledged her or his legal obligation and is pursuing implementation cannot be fixed in advance. Invariably it will be fact dependent. Delay may, after a period, indicate lack of genuine recognition of the legal obligation and make available the inference that the discriminator's position is that it "proposes not to make" the adjustment. On the other hand, delay may be accounted for by the unavailability, for example, of an adjustment where the adjustment is a practical, technological adjustment.
33 In other words, subject to circumstances of continuing discrimination, the two parts of the phrase are intended to be able to address different factual situations. That is particularly apparent from the use of the conjunction "or" in s 5(2)(a), rather than "and". Each can and should be given different work to do in the statute: Commonwealth v Baume (1905) 2 CLR 405 at 414.
34 The tense used in paragraph (a) of s 5(2) (extracted at [17] above) is in my opinion significant. Paragraph (a) is expressed in the present tense. It is suggestive of an ongoing or continuing obligation imposed by the statute on the discriminator. That is consistent with the subject matter of the provision which concerns (for example) the ability of disabled people to perform work, attend educational institutions, be provided with goods and services, and have access to accommodation on an ongoing basis.
35 The effect of the 2009 amendments on the two statutory exceptions to unlawful discrimination, described as "unjustifiable hardship" and "inherent requirements", is also important for the resolution of the issues in this proceeding.
36 Prior to the 2009 amendments, s 4(1) required "unjustifiable hardship" to be read by reference to s 11 of the DDA. Section 11 set out a series of mandatory considerations to be taken into account in determining what constituted unjustifiable hardship. The term was then picked up in the provisions dealing with prohibitions on discrimination in particular spheres, creating (where it was picked up) an exception to the prohibition. For example, s 15(4) of the DDA formerly provided:
Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment; or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.
37 At that time, s 15(1)(b) dealt with the terms on which persons were offered employment and s 15(2)(c) dealt with dismissal. Those were the only circumstances in which the inherent requirements and unjustifiable hardship exceptions operated.
38 It can be seen from the former version of s 15 that the exception of "inherent requirements" was neither separately defined nor provided for. Instead, it was left undefined and a body of authority grew up around its content: see, eg, X v Commonwealth (1999) 200 CLR 177; [1999] HCA 63; Cosma v Qantas Airways Ltd (2002) 124 FCR 504; [2002] FCAFC 425.
39 The 2009 amendments not only introduced the concept of reasonable adjustments, but altered the way in which the exceptions for unjustifiable hardship and inherent requirements were to operate. Aside from the introduction of s 5(2), this was achieved in relation to discrimination in the area of work by repealing those parts of provisions such as s 15 which had dealt with these exceptions, and introducing freestanding provisions to deal with inherent requirements (s 21A) and unjustifiable hardship (s 21B). For other spheres of activity (see, for example, Div 2 of Part 2 of the DDA, which includes education and access to premises), a new provision creating an exception of unjustifiable hardship was introduced: see s 29A.
40 Section 21B provides:
21B Exception-unjustifiable hardship
This Division does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.
41 Section 21B was not relied on by Australia Post in this proceeding and therefore is not directly in issue. However, its place and operation in the scheme assists in the construction, for example, of s 21A, which is in issue. The text of s 21B speaks of "avoiding the discrimination", thus picking up discrimination as defined by both ss 5(1) and 5(2). For the purpose of s 5(2), "avoiding the discrimination" should be understood to mean making, or proposing to make, reasonable adjustments for a person with a disability.
42 The Productivity Commission dealt with the extension of the unjustifiable hardship defence (at 210-211):
The Productivity Commission considers that there are good reasons to extend the unjustifiable hardship test to all areas of the DDA. As a duty to make adjustments might be implied from existing provisions, an across the board unjustifiable hardship defence is required as the Act stands now to provide the necessary balance. It would seem that the Australian Government intended it to apply it universally in the first place. According to HREOC:
The second reading speech introducing the Disability Discrimination Bill indicated an intention to apply the concept of unjustifiable hardship as a general limitation on the legislation, although the drafting of substantive provisions did not fully reflect this. (sub. 143, p. 28)
If the Commission's proposal for a duty to make reasonable adjustments were adopted, an accompanying unjustifiable hardship defence would become even more important as an across the board safeguard to balance rights and obligations.
43 The Productivity Commission also recommended the extension of the exception of inherent requirements, from its 2009 operation in respect of hiring and dismissal, to all employment situations. The Report stated (at p 221):
The Commission concludes that the inherent requirements provisions in the DDA are important from the perspectives of employers and employees (and prospective employees). From the employers' perspective, inherent requirements provide an important safeguard that underpins the merit principle in employment decisions. For employees, inherent requirements mean that employers cannot discriminate against them by using failure to meet non-essential requirements as a reason. Guidelines would help employers and employees to identify the inherent requirements for particular jobs.
There is, however, one legislative amendment that should be made to address an apparent anomaly in the way inherent requirements apply to some employment situations and not others. Currently, like the unjustifiable hardship defence, the inherent requirements defence is not available between the hiring and dismissal stages of employment. It does not apply, for example, in relation to promotions. No good explanation has arisen for why this is so, nor to the Commission's knowledge is it a major issue with employers. The current lack of this defence would appear to have the unusual result, for example, that failure to meet the inherent requirements of a more senior position could not be used by an employer to refuse to promote a person. Although not a seemingly urgent issue, this matter should be addressed.
44 Section 21A provides:
Exception-inherent requirements
Inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discrimination relates to particular work (including promotion or transfer to particular work); and
(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person's past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator-the aggrieved person's performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.
(3) For the purposes of this section, the aggrieved person works for another person if:
(a) the other person employs the aggrieved person; or
(b) the other person engages the aggrieved person as a commission agent; or
(c) the aggrieved person works for the other person as a contract worker; or
(d) the other person and the aggrieved person are members of a partnership; or
(e) both of the following apply:
(i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;
(ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.
Opportunities for promotion, transfer and training and registered organisations
(4) This section does not apply in relation to:
(a) discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or
(b) discrimination referred to in section 20 (registered organisations under the Fair Work (Registered Organisations) Act 2009).
45 By the use of the conditional tense, the statute contemplates that the task required by s 21A(1)(b) can be carried out hypothetically. The provision also uses the term "particular work" in identifying the position to which the concept of inherent requirements attaches. The applicant submitted that this term was to be construed in light of whatever specific section of Div 1 of Part 2 was relied upon by a given applicant to establish that particular discriminatory conduct is unlawful. In my opinion the phrase is used in a more precise way than that. Although the word "work" is chosen so that it is capable of covering all the situations with which Div 1 deals, the use of the adjective "particular" suggests Parliament intended a further level of precision to be applied to identifying the "work" said to carry inherent requirements. In my opinion, s 21A requires a focus on the position, task, services or conduct the aggrieved person performs, or seeks to perform, in the workplace. For example, in s 18(3), which deals with partnerships, the relevant prohibition at paragraph (b) (not excluded by s 21A(4)) relates to expulsion from the partnership. In order to assess the application of s 21A(1), it will be necessary to identify what "particular work" the disabled partner was performing, was asked to perform, or sought to perform. For example, was it to manage the human resources area of a partnership, or marketing, or client relations? That is the "particular work" whose inherent requirements must be identified.
46 The 2008 Explanatory Memorandum states at [72] that the newly introduced s 21A
substantially implements Productivity Commission Recommendation 8.4 to extend the defence of 'inherent requirements' so that it is available to employers in all employment situations.
47 It goes on to state (at [74]-[78]):
74. New section 21A extends the defence to all areas of discrimination in employment, except in:
- denying a person with disability access to opportunities for promotion, transfer or training
- denying a person with disability access to any other benefits associated with employment, and
- subjecting the person with disability to any other detriment.
75. The purpose of the first exclusion is to ensure people with disability retain an entitlement to have the opportunity to seek a promotion or transfer on an equal basis with others. Thus an employer could not, by denying access to the opportunity for promotion or transfer, deny an employee with disability the opportunity to demonstrate that he or she can in fact carry out the inherent requirements of the job sought.
76. The second and third areas exclusions relate to instances of discrimination by an employer against a person who is already employed. In those instances, as the employee is already carrying out the inherent requirements of the job, the defence of inherent requirements would bear no meaning. That is, if the employee is carrying out the inherent requirements of the job, but is then denied access to a benefit or is subjected to a detriment by his or her employer (other than dismissal or a change in terms or conditions), it cannot be a defence to claim that the reason for the discrimination was that the employee was unable to carry out the inherent requirements of the job.
77. However, if an existing employee became unable to meet the inherent requirements of the job, the defence of inherent requirements would remain available to the employer should he or she decide to dismiss the employee or to change the terms and conditions of the employment on that basis.
78. An employer who denies an employee access to any other employment benefit or subjects an employee to any other detriment would continue to have available the defence that avoidance of the discrimination would cause unjustifiable hardship (see the general defence of unjustifiable hardship inserted by Item 60 (new section 29A)).
48 The way these statements might be used to construe s 21A, and s 21A(4) in particular, was the subject of considerable argument in this proceeding. In particular, there was argument about the assumptions made in paragraph [76] of the Explanatory Memorandum concerning the circumstances in which the exclusion (in s 21A(4)) would be operating, when applied for example to provisions such as ss 15(2)(b) and 15(2)(d) of the DDA. The assumption is that an employee would be "carrying out the inherent requirements of the job" in all circumstances to which those provisions might apply.
49 The assumption in the extrinsic material is not borne out by the text of s 21A(4), read with a provision such as s 15(2) upon which it is intended to operate. Notwithstanding those passages in the Productivity Commission report about the desirability of extending the inherent requirements exception to the period between hiring and dismissal, it can be seen that the text of s 21A(4) precludes its extension other than to discrimination in the determination of who should be offered promotion or transfer, without any qualification that the employee must, at the time of discrimination, be performing the inherent requirements of her position. I return to the issue at [51] below in dealing with Australia Post's submission on the operation of s 21A, because Ms Watts' circumstances are an example of how an employee may not necessarily, at the time of the discrimination, be performing the inherent requirements of her position. Were it otherwise, the anti-discrimination provisions might substantially fail to achieve their objective. This is an example of where the words or asserted intention in extrinsic material should not be substituted for the text of the statute: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ, at 532 per Deane J, at 547 per Gaudron J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
50 The interaction between the prohibitions against unlawful discrimination (on either of the bases within s 5) and the two exceptions of inherent requirements and unjustifiable hardship can be summarised in the following way. In all circumstances in which Div 1 of Part 2 would otherwise make discrimination at work unlawful, the "discriminator" (usually an employer but not necessarily) will have available the exception of unjustifiable hardship, but will bear the burden of proving the exception applies. In circumstances which do not involve the denial of a benefit, the limiting of access to opportunities for promotion and the like, or the imposition of any other detriment against an incumbent worker, the "discriminator" (usually an employer but not necessarily) will have available the exception of inherent requirements, but will bear the burden of proving its existence. The inherent requirements exception will apply to selections for promotion or transfer more generally. That is the purpose of the words in brackets in s 21A(1)(a), which are intended to cover the same field as the words at the end of s 21A(4). Broadly, in my opinion, the inherent requirements exception is intended to preserve for employers the entitlement to appoint, retain, promote or transfer employees who can fulfil core aspects of their employment contract.
51 The respondent submits the reason for the more limited application of s 21A, as compared to s 21B, is that given in the Explanatory Memorandum: namely, that incumbent workers with disabilities are assumed to be performing the inherent requirements of their job, and so s 21A could never have any application to denial of benefits associated with employment, or the imposition of a detriment. It draws a comparison with s 15(2)(a) (where the s 21A exception is available), contending that an employer can change the terms and conditions it affords a disabled employee if that person is, because of the disability, no longer capable of performing the inherent requirements of the position.
52 One problem with this construction is it does not recognise that, as they are expressed, provisions such as s 15(2)(a) are also capable of applying to incumbent workers who are performing the inherent requirements of a position.
53 Second, there is no such clear distinction between the circumstances in which s 21A applies and those where it does not. For example the reference in s 21A(1)(a) to "promotion or transfer to particular work", despite discrimination in respect of opportunities for promotion or transfer being at least partially excluded from the operation of s 21A by s 21A(4), does not reveal any clear intention to confine s 21A(4) to workers who are already carrying out the inherent requirements of a position. There is simply no textual support for that construction. Rather, it is aimed at preserving an employer's entitlement to secure a core set of capabilities and performance from employees. An employee temporarily out of the workforce, or on modified duties, may nevertheless be able to perform to such a standard.
54 The consequences of reconciling the operation of s 21A with the terms of s 5(2) and the statutory concept of reasonable adjustments emerge from the breadth of s 5(2), when it is read with the definition of reasonable adjustments in s 4. Section 21A(1)(b), when read with this definition, must be construed as meaning that, if the employer makes (or were to make) all adjustments for the person that do not cause the employer unjustifiable hardship, and the disabled person cannot perform the inherent requirements of the particular work, only then does the s 21A exception apply. That construction imposes substantial obligations on employers, and may as I have observed give the concept of "unjustifiable hardship" more work to do in the legislative scheme than previously conceived. Nevertheless, the text of s 5(2) is clear, especially read with the definition of "reasonable adjustment", and this construction is consistent with Australia's obligations under the Convention.
55 There is a further construction question about the temporal operation of the definition of "reasonable adjustment" in the context of s 21A(1)(b), assuming it applies. Where s 21A posits that a person would be "unable" to carry out the inherent requirements of the particular work, even with reasonable adjustments, does the statute allow for the adjustments to enable the person within a reasonable time to perform the inherent requirements of the particular work, or does s 21A operate to except an employer from liability unless the adjustments immediately enable the person to perform the inherent requirements of the particular work?
56 Take an example divorced from the present proceeding. An existing employee of a multinational computer software company whose "particular work" requires constant use of a computer has a skiing accident which means she loses the use of her arms and hands. Technology is available through which she could learn to operate a computer with the use of a laser beam attached to her head. However, to have her trained in this, and able to use it effectively (including developing the necessary coordination), will take at least 6 months. It should be assumed for the purposes of the example that the use of the laser beam is a reasonable adjustment for the employee within the meaning of s 4 because the employer does not suggest it imposes unjustifiable hardship on the employer. Thus, it will be 6 months before she will be in a position to perform the inherent requirements of her pre-injury duties. Does s 21A(1) operate to except the woman's employer from a claim of unlawful discrimination if it dismisses her because she cannot perform the inherent requirements of her position immediately on her return to work?
57 The protections intended to be delivered by the 2009 amendments to require accommodation for disabled people by way of reasonable adjustments would seem to be almost entirely undermined by a construction of s 21A(1)(b) which does not allow some time for the adjustment to take effect. This is consistent with the objective of substantive equality s 5(2) is intended to pursue. The expression of s 21A(1)(b) in the conditional tense supports a construction of "unable" which allows some time for the adjustment to take effect. That is not to say that any outer temporal limit (of a number of weeks or months or years) is implied into s 21A(1)(b), nor that a gloss such as "within a reasonable time" is to be implied. Nor is there a need to limit the meaning of "unable". Rather, it is to recognise that, read in context, the prohibitions contained in Div 1 of Part 2 of the DDA are intended to facilitate, in a variety of circumstances, disabled people performing, or continuing to perform, work for which they are qualified and of which they are capable, whether by training, experience or both. In this sense, allowing time for an employee to adapt, and gradually return to full capacity, itself forms part of the "reasonable adjustments" made, subject in any given case to the unjustifiable hardship exception.
58 Several construction issues about s 15 are also raised by Ms Watts' claims. Section 15 provides:
Discrimination in employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.
59 Section 15(2) is the applicable provision in this proceeding. The parties made competing submissions about the construction and scope of the matters dealt with in paragraphs (a)-(d) of subs (2). Subsection (2) takes as its premise an existing employer-employee relationship and deals with the treatment of employees in that context. That premise means there will be terms and conditions already attaching to the employment contract before any impugned conduct or treatment arises. The use of the verb "affords" in paragraph (a), expressed in the present tense, indicates that the conduct said to constitute discrimination could relate either to those existing terms and conditions, or to any changes proposed or made to them by the employer. That construction ensures there is no gap between the protection given by subs (1) to prospective employees and that given to existing employees. The use of the word "in" at the start of this paragraph is important: it indicates that paragraph (a) is directed to terms and conditions of employment (whether existing, proposed or changed) that are in and of themselves discriminatory. I agree with the submission of the applicant that paragraph (a) does not deal with the application of a term or condition to a given factual situation between an employer and an employee. Rather it looks to the nature and operation of the term and condition itself.
60 Bearing in mind that each paragraph should be given real and separate work to do (Baume 2 CLR 405 at 414; Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; [2012] HCA 46 at [41] per French CJ, at [172] per Hayne J, at [450] per Kiefel J), when s 15(2)(b) speaks of "promotion, transfer or training", it is dealing with matters outside the terms and conditions of employment. In my opinion, they are three specifically identified "benefits associated with employment". They are not all benefits which necessarily have a pecuniary impact on an employee's income. They are not necessarily benefits which are permanent. They are all matters which enhance and develop a person's capacity and opportunity in her work. The use of the word "opportunities" in paragraph (b) indicates that these "benefits" are not to be seen wholly from the perspective of the employer (that is, benefits which increase a person's value as an employee) nor are they to be seen wholly from the perspective of the employee (that is, benefits which bring personal achievement and satisfaction to the employee). Rather, they encompass both perspectives. Further, the use of the word "opportunities" distinguishes the breadth of this provision from the specific exception in s 21A(1)(a), which concerns selection for promotion or transfer.
61 There is a question as to how the phrase "other benefits associated with employment" in s 15(2)(b) should be construed, given that three specific benefits have been identified by Parliament. In an earlier time, the construction of a provision like s 15(2)(b) may have been immediately approached through the use of the ejusdem generis rule. I agree respectfully with the observations of Spigelman CJ in Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 at [124]-[127], that what is called the ejusdem generis rule is but one example of a process of interpretation sometimes described as "reading down" the ambit of a term or phrase in a statute, and that the question of whether a phrase should be read down and, if so, how, is not to be approached by any mechanical application of a "rule" such as ejusdem generis.
62 Contemporary approaches to statutory construction may have reduced the role of these rules: cf Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [54] per Gummow and Hayne JJ. In any event, these rules are but methods by which apparent tensions, contradictions, or ambiguities in statutory language and purpose can be reconciled. The need to engage in such reconciliation as part of statutory interpretation has been emphasised as a core part of contemporary approaches to statutory construction (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71]), but the language of reconciliation has been employed by courts for a long time to describe the process of interpretation: see R v Inhabitants of Whitnash (1827) 7 B & C 596 at 599; 108 ER 845 at 846 per Bayley J.
63 Similarly, contemporary approaches to statutory construction may reduce resort to descriptions such as "reading down". Often "reading down" is no more than a convenient way to express a view that text, context and purpose suggest a word or phrase in a statute has particular limits around its construction. It is not that there is a broad meaning, which is then "read down". The interpretation of statutory language does not involve arriving at a preliminary or likely construction, and then revising or revisiting that construction to fit with Parliament's purpose, or the context of the provision and the statute. The choice as to construction is a single choice, arrived at by a variety of legitimate approaches. A circumstance where a construction is chosen which one might describe as a "reading down" is in reality the construction that the court has decided is the one the text, context and purpose of the statute, and its parts and provisions, requires. In that sense, there is no "reading down": there is simply a conclusion as to construction.
64 That is, in my opinion, part of what Mahoney JA was identifying in Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373-376. His Honour's emphasis on text and context in preference to "rules" was prescient of the approach endorsed repeatedly by the High Court in the last decade: Project Blue Sky 194 CLR 355; [1998] HCA 28 at [69]-[71]; Alcan 239 CLR 27; [2009] HCA 41 at [47]; Lacey 242 CLR 573; [2011] HCA 10 at [43]-[44]; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24]-[25]. His Honour observed (at 376) that the application of a "rule" such as ejusdem generis to conclude that a statutory phrase using general words should be given a limited or restricted construction is "not because, e.g. a genus has been found, but only because the legislative intention has already been seen to be that the general words are to be so restricted".
65 In the context of s 15(2) of the DDA, whose function is to express prohibitions on certain conduct, with the purpose of protecting employees with a disability from discrimination during the course of their employment, in my opinion the identification of "promotion, transfer or training" is intended to do no more than provide specific examples of "benefits associated with employment" and is not intended to restrict or limit what might otherwise fall within the concept of "benefits associated with employment". The language and context suggest, as I have observed above, a broad range of matters which could be "benefits", including matters that employees may regard as benefits (such as new challenges or greater interaction with fellow employees) and those that employers might regard as benefits (such as temporary promotions to fill a gap) and those that both employers and employees might regard as benefits (such as training).
66 Accordingly, there is no reason to exclude from the concept of "benefits associated with employment" matters such as those identified by the applicant in this case: attending for work, performing work and exercising skills, using accrued entitlements at a time and for a purpose of the employee's choosing (as would usually be the case with entitlements, within reasonable limits) and earning ordinary income. A similar approach in a different statutory context was taken in Quinn v Overland (2010) 199 IR 40; [2010] FCA 799 at [110] per Bromberg J. In another context, see also Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22 at [80] where Callinan and Heydon JJ stated:
It may be that in modern times, a desire for what has been called "job satisfaction", and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work in fact should be provided.
67 The construction of s 15(2)(c) was not in issue in this proceeding, but the construction of paragraph (d) is important. The use of the word "detriment" within the same subsection as the word "benefit" indicates those terms should be taken as encompassing different kinds of conduct or treatment. The use of the word "other" in paragraph (d) makes clear that the three matters with which paragraphs (a)-(c) deal are regarded by Parliament in their effect on employees as forms of detriments. The purpose of (d) is to pick up matters not otherwise covered already in that subsection. In that sense, it is surplusage to construe paragraph (d) as a negative mirror of paragraph (b): the better approach is to see each paragraph as directed at different kinds of conduct or treatment.
68 Aside from a nexus between the identified "detriment" and the employment of the person concerned, the context otherwise suggests no particular limits on the meaning which should be given to that word. For example, it may be a loss or disadvantage which is temporary but real (such as moving an employee away from her established workplace and colleagues); it may be a prejudice to the earning of additional income (such as a facially neutral requirement about eligibility for overtime which disproportionately affects employees with a particular disability); or it may be damage done by the tolerance (or encouragement) of teasing or harassment of a disabled employee in a workplace. Essentially (and perhaps obviously), a "detriment" within paragraph (d) will have an immediate negative connotation: a "benefit" within paragraph (b) will have an immediate positive connotation. A "detriment" should not be identified solely by the negative expression of what is in reality a benefit.
69 Before applying these provisions to the facts, it is appropriate to now turn to Ms Watts' claims, and Australia Post's responses to them.