In Queensland, the Anti-Discrimination Act 1991 (Qld) (the Act) establishes two broad classes of prohibited discrimination – direct and indirect. The former is overt and explicit, often involving clear, intentional actions that treat individuals unfavourably because of a protected attribute.
The latter is more subtle, and often unintentional. In accordance with section 11 of the Act, indirect discrimination on the basis of a protected attribute occurs when:
(1) a person imposes, or proposes to impose, a term—
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
Pursuant to this definition, an institution which imposes a seemingly neutral policy may nonetheless be in breach of the Act if a disproportionate number of individuals with a protected attribute are unable to comply.
A key question arising from this proposition, is how the terminology “not able to comply” should be construed.
In Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249[1], the Tribunal found that the student could not, in keeping with the customs and cultural practices of his race, comply with a uniform policy that mandated “boys must not wear buns or their hair long”.
Conversely, in refusing an application for an interim order, Senior Member Fitzpatrick held in XA (BY ZA) v School [2024] QCAT 15 that there was no evidence that the complainant child was unable to comply with the requirement that he cut his hair, and that his hair length was a matter of personal choice.
In this article we explore the recent QCAT decision of Kos v Deltapath Pty Ltd [2024] QCAT 107 which helps to shed light on the meaning of “does not or is not able to comply”.
Facts
During the height of the pandemic, a Mitre 10 hardware store imposed a requirement that customers wishing to enter the store had to wear a face mask. The complainant, who suffered chronic anxiety and agoraphobia, alleged that this constituted indirect discrimination pursuant to s 11of the Act.
Principles Considered
Citing Waters v Public Transport Corporation (1991) 173 CLR 349, Member Gordon found that the purpose of section 11 is to eliminate discrimination which arises when:
one person appears to be treated just as another is or would be treated, but the impact of such equal treatment is that the former is in fact treated less favourably than the latter.
Expanding on this point, the Tribunal had recourse to the following cases:
- Taniela v Australian Christian College Moreton Ltd – the meaning of ‘can comply’ does not mean ‘can physically’ in the sense of being theoretically possible, but as meaning can in practice[2];
- Hurst v State of Queensland – the real issue was whether the complainant student would suffer serious disadvantage by reason of the requirement or condition imposed[3]; and
- Hickson-Jamieson v University of the Sunshine Coast – an inability to comply must be some incapacity to comply, not merely an unwillingness, or a preference for other outcomes. A claim that the requirement gives rise to an inconvenience, or a person would prefer alternatives, does not satisfy this element[4].
Held
The applicant ultimately failed to provide any real evidence to show that he was medically exempt from wearing a mask. Although Mr Kos may well have found wearing a mask uncomfortable and strange, it was held that he could have worn one without additional difficulty arising from his impairment when entering the store building had he wished to do so. As such, he failed to satisfy the first element of his complaint, and his complaint failed.
Takeaways
- The words “not able to comply” should not be interpreted literally, as this would undermine the purpose of the provision; and
- A personal preference for an alternate outcome, or a mere unwillingness to comply, will not give rise to a successful claim of indirect discrimination.
Vocare Law is well equipped to assist our institutional clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on ensuring your business or organisation is able to adequately comply with the Anti-Discrimination Act 1991 (Qld). Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Jonas Whincop & Courtney Linton.
**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.
Footnotes
[1] A decision subsequently upheld in Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118.
[2] [2020] QCAT 249.
[3] [2006] FCAFC 100
[4] [2023] QCAT 66.
