Amicus Submission: Wang v ACT Health

How is reasonableness assessed?

18.         Section 8(3) of the Discrimination Act states that “in deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include-

(a)   The nature and extent of the resultant disadvantage; and

(b)   The feasibility of overcoming or mitigating the disadvantage; and

(c)    Whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.”

19.         In Commonwealth Bank v HREOC ,[5] in considering the Sex Discrimination Act 1984, the Federal Court found that the reasonableness of a requirement or condition will be determined by weighing all relevant factors, which will differ from case to case. However, it “will, usually at least, include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the aggrieved persons”.[6]  Further in Secretary, Department of Foreign Affairs and Trade v Styles and Anor the Full Federal Court stated that the test of reasonableness was stated to be “less demanding than one of necessity, but more demanding than a test of convenience”.[7]

20.         Therefore, it appears clear that the Tribunal must consider if the factors listed in s.8(3) are satisfied as a question of fact, read in light of these tests.

21.         However, there remains some question in interpreting the meaning of ‘reasonable’ under s 8(1)(b) whether any other factors should be considered. In the ACT, such legislative ambiguity is interpreted through the lens of both the Legislation Act 2001 and Human Rights Act 2004.

22.         A range of matters may be relevant in interpreting s 8 of the Discrimination Act. This submission focuses on the human rights issues, and in the Commissioner’s view,  the key interpretation questions are which party bears the onus of demonstrating conduct was reasonable (or unreasonable), and what matters may be considered in determining reasonableness.