Sydney Law Review
The central issue before the High Court in Purvis was whether treatment of a person based on their behaviour amounts to unlawful disability discrimination, in circumstances where that behaviour is directly connected with an underlying disability. The determination of this issue required consideration of a number of issues, primarily matters of statutory construction, including whether, or in what sense, there exists under the Disability Discrimination Act 1992 (Cth) an obligation to accommodate the effects or characteristics of a person’s disability — in the instant case, the disturbed behaviour — in order to avoid a finding of unlawful discrimination.
In this paper, an outline of the relevant facts and litigation history is followed by a detailed examination of how each of the major issues were dealt with in the High Court, with regard to the separate judgments delivered. The author concludes that the majority’s determination of the issues, and their construction of the Act, was in reality heavily influenced by the inability to directly take into account the broader effects of the disturbed behaviour, due to the specific statutory context in which the claim arose. In failing to qualify its reasoning either with respect to the specific legislation in issue, or even to discrimination on the particular ground of disability, the decision, at least in principle, sets a precedent of broad and general significance on the meaning of discrimination.
* Final year student, Faculty of Law, University of Sydney. The author sincerely thanks Belinda Smith for her valuable comments and suggestions on the draft of this article. All opinions, and any errors, are the author’s own.
The decision of the High Court in Purvis v New South Wales (Department of Education and Training) has been highly anticipated and represented an opportunity both to test the correctness of the Federal Court’s narrow approach to the issues in the case and to provide authoritative guidance on the meaning of direct discrimination on the grounds of disability where a person’s behaviour is a manifestation of an underlying condition.
The case arose, primarily, from the decision of a state high school to expel a student, Daniel Hoggan, who had engaged in various acts of anti-social and violent behaviour during the months in which he had attended the school. The critical factor was that a connection existed between the behaviour Daniel exhibited and his underlying disabilities. In the Federal Court, the primary judge found that the Human Rights and Equal Opportunity Commission had erred in a number of major respects in its decision to award damages, and found that Daniel had not been unlawfully discriminated against. An appeal to the Full Court was dismissed.
A majority of the High Court dismissed the appeal, disapproving of the Federal Court’s reasoning only in limited respects. Five members of the Court rejected the finding of the Federal Court that the definition of disability under the Disability Discrimination Act 1992 (Cth) (Hereinafter the Act) required a distinction to be drawn between behaviour and the underlying condition giving rise to that behaviour, and the leading majority judgment found that it was not even necessary to decide whether the behaviour itself could be identified as the disability. The issue on which fundamental differences of opinion emerged was the construction of the hypothetical comparator for the purpose of determining whether Daniel had been subjected to less favourable treatment. Concurring with the finding of the Federal Court, a majority found that the proper comparator had engaged in like conduct to Daniel. Although providing somewhat more cogent reasoning than the Federal Court, the majority’s reasoning suggests a principle of general application that the characteristics of an aggrieved person related to the proscribed ground can be attributed to the comparator. If the case is treated as authority for such a principle, it marks an extremely regrettable development in anti-discrimination law jurisprudence.
McHugh and Kirby JJ, in a joint judgment, dissented on the comparator issue, concluding that the comparison was between Daniel and a student who did not behave in a similar way. McHugh and Kirby JJ agreed that s5(2) of the Act, which provides that the fact that a person with a disability requires different accommodation or services does not make that person’s circumstances materially different for the purpose of determining whether that person was subjected to less favourable treatment, did not impose an obligation as such to accommodate a person’s disability. However, their Honours’ construction of that subsection gave it a beneficial operation, and it was regarded as having considerable bearing on the proper construction of the comparator. It appears, however, that the majority construed s5(2) as having virtually no role in making operational the objects of the Act.
|2.||Background to the High Court’s Decision|
The case concerned the treatment of Daniel Hoggan by South Grafton High School, at which Daniel had commenced as a student in April 1997. Daniel had suffered brain damage as an infant, which had given rise to intellectual disabilities, visual impairment and epilepsy, and resulted in various forms of anti-social behaviour, including physical violence against others. Daniel’s application for enrolment in the school was in fact initially refused, but after a change of principal and several months of negotiations, and the making of certain preparations, the school agreed in February 1997 to accept his application. Between his commencement and the formal exclusion in December 1997, Daniel was suspended on several occasions following his difficult behaviour, which included swearing and physical violence against staff and other students. After the fifth suspension, the principal notified that he would exclude Daniel from the school, due to Daniel’s unresolved behaviour problems, concerns for the safety of other students and staff, and the school’s duty of care.
In March 1998, Mr Purvis, Daniel’s foster father, lodged a complaint of direct discrimination under the Act with the Human Rights and Equal Opportunity Commission (hereinafter the Commission). Applying the definition of direct discrimination as provided by s5(1) of the Act, it was argued that the State had treated Daniel ‘less favourably than, in circumstances that are the same or are not materially different’, the person (the discriminator) would treat another person without the disability.
The proscription of discrimination in the area of education is provided by s22 of the Act. A defence of unjustifiable hardship is available to respondents in certain limited circumstances in the field of education, namely in relation to refusal or failure to admit a student. Had the defence been available to the State in Purvis, considerations such as the safety and wellbeing of other students and staff, and the school’s associated legal responsibilities, could have been directly factored into the equation in determining whether the treatment of Daniel amounted to unlawful discrimination. It can readily be inferred that the claim was not brought under the Anti-Discrimination Act 1977 (NSW) for the reason that the respondent in the case could then have raised unjustifiable hardship as a defence, since under that Act the defence is available to a respondent in relation to a decision to expel a student as well as to refusal or failure to enrol.
|C.||History of Litigation|
At the relevant time, disputes under the Act were first brought before the Commission. The Commission’s inquiry was conducted by Commissioner Innes, who found that the complaint had been substantiated and awarded $49 000 compensation. Commissioner Innes accepted that, based on the medical evidence, Daniel had no control over his behaviour and that it was a direct result of his brain damage. By comparing the treatment of Daniel to that of a hypothetical student who did not exhibit similar behaviour, it was found that Daniel had been treated less favourably. It was further held that, in the circumstances, less favourable treatment ‘because of’ Daniel’s behaviour was ‘because of’ his disability since the two were so closely connected. The Commissioner also found that the school had an obligation to make a ‘reasonably proportionate response’ to Daniel’s disability, which it had failed to do, and which led to the suspensions and expulsion. Compensation was awarded for the suspensions and expulsion, and the failure to provide accommodation required by Daniel was, in the circumstances, treated as separate grounds for relief.
The Department applied for review of the Commission’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Federal Court (Emmett J) found that the Commissioner had erred in law in several important respects and set aside the decision. The proper comparator was a student who exhibited similar conduct to Daniel, not one who did not engage in such conduct. It was further held that treatment on the ground of Daniel’s behaviour was not necessarily treatment on the ground of his disability, since such behaviour did not ipso facto represent a manifestation of a disability.
Mr Purvis appealed the decision to the Full Court of the Federal Court, which dismissed the appeal, affirming the decision and reasoning of Emmett J. The Full Court (Spender, Giles and Conti JJ) was particularly critical of the Commissioner’s apparent finding that the Act imposed a positive obligation to accommodate a person’s disability, and even suggested that providing special measures to Daniel may have offended s22.
Mr Purvis was subsequently granted special leave to appeal to the High Court.
|3.||Purvis in the High Court|
There were essentially three issues before the High Court: the ‘disability issue’, the ‘comparator issue’ and the ‘causation issue’. The first issue concerns the proper application of the definition of disability under s4 of the Act to Daniel’s situation, and in particular, whether the Federal Court was correct in finding that the definition required a distinction between conduct and the underlying cause of the behaviour. The comparator issue involves the construction of the hypothetical comparator: what circumstances should be attributed to a person without the disability, in the same or not materially different circumstances? The important related issue is the proper construction of s5(2) of the Act, which provides that a need for different accommodation or services by a person with a disability does not constitute a material difference. In particular, does s5(2) imply a positive obligation to provide accommodation or services? Thirdly, if there was less favourable treatment, was it ‘because of’ Daniel’s disability?
The majority of the Court dismissed the appeal. The leading joint majority judgment was delivered by Gummow, Hayne and Heydon JJ, with Gleeson CJ and Callinan J agreeing on the outcome. McHugh and Kirby JJ, in a joint judgment, disagreed with the leading majority judgment in a number of important respects and would have allowed the appeal.
|A.||General Approach to the Issues and Construction of the Act|
The major legal issues before the High Court were largely matters of statutory construction. However, it is important to identify the way in which the interpretation and application of such legislation is a result of choice and the particular attitude taken towards the issues.
The joint judgment of McHugh and Kirby JJ was critical of the judicial approach commonly taken towards construction of anti-discrimination legislation, of which the Federal Court’s decision was viewed as an example, whereby ‘judicial intuition’ that a finding of unlawful discrimination would be unfair or lead to ‘draconian consequences’ is used as a basis for narrowly construing the legislation. In a particularly insightful observation, it was stated that not only may such an approach lead to injustices in future cases, but it may itself ‘be based unconsciously on the very attitudes that the law is designed to correct and redress’. The joint judgment therefore emphasised the need to ensure that the Act is not construed on the basis of what the particular judge thinks is a ‘fair’ outcome or to prevent the Act from operating in a way that he or she considers harsh. The proper approach was to ‘construe the Act in a manner that furthers the goal of truly equal treatment for disabled persons’, so far as possible, and to give full effect to the language and purpose of the Act.
In comparison, and like the approach of the Federal Court and the Full Court, the judgments of both Gleeson CJ and Callinan JJ leaned towards a ‘perpetrator perspective’. The need to avoid unfairness to the school in construing the Act is clearly emphasised, foreshadowing a clear view as to the desirable resolution of the issues in the case.
The approach taken in the leading majority judgment is considerably more conservative than that of McHugh and Kirby JJ, although not as overtly dominated by a particular view as to a desirable outcome as are the judgments of Gleeson CJ and Callinan J. The leading majority judgment identifies ‘ensuring equality of treatment’ (ie formal equality) as ‘the principal focus of the Act’, and constructs various arguments in defence of a conservative approach.
|B.||Definition of Disability in the Act|
Five members of the High Court expressly concluded that the Federal Court had erred in adopting a narrow construction of the definition of disability, and concluded that a distinction between ‘conduct’ and the condition or disorder was not required. Of the remaining two members of the Court, Gleeson CJ’s finding on this point was equivocal, whereas Callinan J did not need to consider the issue.
McHugh and Kirby JJ concluded not only that the definition of disability did not require the distinction found by the Federal Court, but also expressly stated that ‘the behavioural manifestations of an underlying disorder or condition is itself a disability for the purposes of the Act’. The joint minority judgment took a contextual and purposive approach, finding that unless the definition was construed as enabling the behaviour to be considered the disability, its utility in cases of functional limitations and ‘hidden impairments’ (as in Daniel’s case) would be removed.
The leading majority judgment also concluded that the ‘sharp distinction between cause and effect’ made by the Federal Court was erroneous, and found that no distinction was required but, unlike McHugh and Kirby JJ, the majority seemed to indicate that it was not necessary to decide whether the behaviour should be regarded as the disability. The reasoning adopted shows a more strictly textual approach to construction. Thus although it was acknowledged that the resulting behaviour was what made Daniel ‘different in the eyes of others’, the reasoning for this conclusion was located in the specific provisions of the Act.
|C.||The Comparator Issue and the Effect of s5(2) of the Act|
The majority agreed with the determination of the Federal Court that the proper comparator was a person with similar behaviour to Daniel, and s5(2) was apparently seen as having no bearing on the issue. McHugh and Kirby JJ dissented on these issues, concluding that the proper comparator did not engage in like conduct and that s5(2) had a substantial effect on the construction of the comparator.
|(i)||McHugh and Kirby JJ|
McHugh and Kirby JJ were the only members of the Court to hold that the Commissioner had been correct in finding that the comparator was a person without the behaviour. Their Honours regarded as being firmly established the principle applied by the Commissioner that the circumstances of the aggrieved person which are related to the proscribed ground are excluded from the circumstances of the comparator. Authority for the principle was found in Sullivan v Department of Defence and the judgments of Toohey and Kirby JJ in IW v City of Perth, the latter of which had in fact been applied in relation to the Commonwealth Act, which undermined the reasoning of the Full Court in deciding to reject that reasoning on the basis that it had been decided under a different Act. Further authority was found in the definition of disability in the Act, which, by allowing the disability to be defined as the behaviour itself, aimed to ensure that such characteristics could not be used as ‘proxies’ for discriminating on the proscribed ground. Aside from the principle that circumstances relate to the proscribed ground cannot be attributed to the comparator, it was also noted that the comparator could not be a person with the behaviour, since the free will of the comparator over the behaviour constituted a material difference to the circumstances facing Daniel.
According to the joint judgment, the focus of s5(2) is on whether the disabled person requires different accommodation or services. If such were required, in the sense that providing them would make the circumstances not materially different by overcoming the effects of the disability, then to treat the person on the basis of the effects of having not provided such accommodation would constitute less favourable treatment. The effect of s5(2) is therefore to recognise that it may be necessary to ‘inject into the equation’ the things that the disabled person would need in order to compete on equal terms with an able-bodied comparator. On the findings of the Commissioner, Daniel would not have behaved in the way he did if certain accommodation had been provided. The required comparison was therefore based on the circumstances if Daniel’s disability had been accommodated, in particular, that the difficult behaviour would not have arisen.
The joint judgment also considered the various cases in which an obligation to provide reasonable accommodation had been found to arise from the Act, having been located in various sources. It was concluded the Act did impose a prima facie requirement to accommodate the disabilities of a disabled person, ‘in order to achieve real – not notional – equality’, but that it contained a ‘recognition’ to provide accommodation, as distinct from an obligation to do so.
The joint minority judgment also directly considered the utility of the unjustifiable hardship exemption in the legislation, its limited operation and the implications for the instant case. Particularly in regards to cases involving difficult behaviour, the unjustifiable hardship exemption was recognised as potentially providing a flexible mechanism by which competing interests could be taken into account, and its restriction to decisions involving enrolment was regarded as anomalous. However, their Honours were careful to point out that this was not a basis for concluding that the recognition of accommodation was limited by a reasonableness standard in the present case, or as a reason for narrowly construing the definition of disability.
|(ii)||Gummow, Hayne and Heydon JJ|
The leading majority judgment analysed the comparator issue as a two-step process. The first step was to identify the circumstances in which the disabled person was treated less favourably, with the relevant ‘circumstances’ being ‘all the objective features which surround the actual or intended treatment’. The second step was then to ask how a person without the disability in those circumstances would be treated. In Daniel’s case, one of the circumstances attending his treatment was his behaviour, and it was said to be ‘artificial’ to exclude this circumstance because it is connected with his disability. Three advantages or implications of the preferred construction of the comparator were discussed. First, it was said to allow for a ‘proper intersection’ between the obligations under the Act and the operation of criminal law. Second, it did not depend on distinguishing between the underlying condition and behaviour and was therefore consistent with the construction of the definition of disability, which did not require a distinction to be made. Finally, it was said to maintain the separation between the comparator question and the causation question. These issues would effectively be combined if the comparator was a person without the behaviour. Gleeson CJ adopted similar reasoning to reach the same conclusion on the comparator issue, but emphasised in particular that unless such a construction was made the requirement of a comparison would be meaningless and ‘purely formal’.
In considering the circumstances that should be attributed to the comparator, the leading majority judgment dealt in a cursory way with the effect of s5(2), stating only that the subsection specifies ‘one circumstance which does not amount to material difference’ and that ‘it does not explicitly oblige the provision of that different accommodation or those different services’.
|D.||The Causation Issue|
In the Federal Court, the approach to the issue of whether treatment was ‘because of’ the disability had significant bearing on the finding that the definition of disability was confined to the underlying condition. It was held that treatment ‘because of’ behaviour did not amount to treatment ‘because of’ the disability, since such behaviour was not a necessary manifestation of a disability. The correctness of this reasoning was not examined in the leading majority judgment, dealing only briefly with the causation issue because the comparator issue was regarded as fatal to the appellant’s case.
Gleeson CJ gave some consideration to the causation issue, making the rather unusual finding that because the Act did not prohibit the desire to remove threats to safety as a legitimate basis of decision making, the subjective and stated intention or motivation of the school should be accepted as the relevant cause of the decisions. This approach clearly favours giving substantial weight to the subjective intent of the discriminator, and it is notable that the leading majority judgment did not directly disapprove of such an approach.
The causation issue was subject to the most careful scrutiny by McHugh and Kirby JJ.
From an analysis of the relevant case law, their Honours concluded that the proper test focuses on ‘the mental state of the alleged discriminator’ and the ‘real reason’ for the act. Although the ‘mental processes of the discriminator will often be relevant, the test was not subjective, and neither is it a ‘but for’ test, since such an approach would focus incorrectly on the consequences for the aggrieved person. Most importantly, it was stated that where, on applying the proper test, it is found that the reason for the act was the manifestation of a disability, this will be sufficient to conclude that the act was ‘because of’ the disability. The implication is that even if Daniel’s disability was defined as the underlying condition and not the behaviour, and the reason for the act was the behaviour, the act would still be ‘because of’ the disability, so that the Federal Court had erred even if its determination of the disability issue had been correct.
|4.||Implications and Conclusion|
The High Court’s decision has two major implications. The first implication arises from the majority’s finding on the comparator issue, which appears to establish the principle that the characteristics of the aggrieved person related to the proscribed ground can be attributed to the comparator, apparently regardless of the closeness of their connection with the proscribed ground. The conclusion on this point was stated in general terms, and it is not clear whether it can be read down as confined to the facts of the case in terms of the ground of disability or disabilities in the nature of dangerous conduct. However, even if it is possible to narrowly confine the principle to disturbed behaviour, it still implies an erosion of the protection of people with such disabilities and ignores the fundamental difference between situations where the behaviour is uncontrolled and where it is an act of free will. If the principle is to be regarded as of general application, it sets an extremely dangerous precedent and would seriously undermine the purposes of anti-discrimination law on a broad scale.
The second major implication of the case is the guidance it provides on the effect of s5(2). The leading majority judgment seemed to take a narrow approach; it is not clear whether or in what way the subsection was seen as having any operative effect. The judgment of McHugh and Kirby JJ provides much clearer and practical guidance on the effect of s5(2) on the comparator issue. However, it may be doubted whether their consideration of the issue is consistent with the approach of the majority, and it may be that the latter’s narrow reading prevails, the concern being that it provides no apparent role at all for s5(2) in furthering the objects of the Act.
It is difficult to deny the role that the unavailability of the unjustifiable hardship defence in the case had on the construction of the Act in the joint majority judgment. Yet the precise failure to acknowledge this as being a relevant and important factor in their interpretation creates major implications for the scope of the precedent which is set by Purvis, at least on its face. Thus it is not clear whether the implications of the case can be confined to complaints brought under the Commonwealth Act; it may be that, regardless of differences in the availability of the unjustifiable hardship defence, the implications of the case extend to complaints of disability discrimination under anti-discrimination laws of other Australian jurisdictions. Even more troubling is the very real possibility that elements of the decision could be treated as extending to complaints of discrimination on other grounds, such as sex or race, regardless of the fact that the unjustifiable hardship exemption has no place within the prescription of discrimination on such grounds.
 HCA 62; (2003) 202 ALR 133 (hereinafter Purvis).
The appellant was Daniel’s foster father.
The facts are set out in Purvis, above n1 at 142–144 (McHugh and Kirby JJ) and a chronology of events is also appended to the reasons of Callinan J.
Discrimination is unlawful in relation to a broad range of situations in education, including refusal or failure to admit a student, denial of benefits, expulsion and subjection to detriments s22(2) of the Act.
Unjustifiable hardship is defined in s11 of the Act.
See s22(3) of the Act.
See s49L(4) of that Act.
The Commission no longer hears complaints of unlawful discrimination, as a result of the Human Rights Legislation Amendment Act No 1 1999 (Cth), which came into effect on 13 April 2000. The legislation came about as a result of the High Court’s decision in Brandy v Human Rights and Equal Opportunity Commission  HCA 10; (1995) 127 ALR 1.
Purvis obo Hoggan v State of New South Wales (Department of Education) (2001) EOC 93–117.
Id at [6.3].
State of NSW (Department of Education) v Human Rights and Equal Opportunity Commission (2001) FCA 119.
Purvis v State of NSW (Department of Education and Training) (2002) FCAFC 106.
Id at .
See Purvis, above n1 at 178 (Gummow, Hayne & Heydon JJ).
By operation of the Human Rights Legislation Amendment Act (No 1) 1999 (Cth) and the Human Rights Legislation (Transitional) Regulations 2000, the original complaint was deemed to have been terminated and the appellant entitled to commence new proceedings in the Federal Magistrate’s Court, which it did.
Their Honours would have ordered that the appeal to the Federal Court be allowed and the complaint remitted to the Commission, in accordance with the Human Rights Legislation Amendment Act (No 1). Costs would also have been awarded against the State: see Purvis, above n1 at 174.
Gaze has pointed to the need to acknowledge the extent to which choices are available to the Australian judiciary in interpreting and applying anti-discrimination laws, and that in understanding the cases it is important to make these choices visible, since ‘judicial neutrality is often not what occurs when courts construe anti-discrimination legislation’: see Beth Gaze, ‘Context and Interpretation in Anti-Discrimination Law’  MULR 18: <www.austlii.edu.au/cgi–bin/disp.pl/au/journals/MULR/2002/18.html> (2 August 2004).
Purvis, above n1 at 139.
Purvis, above n1 at 146.
Gleeson CJ emphasises the ‘seriousness’ of the conduct in question and the need to construe the Act in the context of the ‘legal background’ constituted by the school’s other obligations: see Id at 136.
The particular issue guiding the construction by Callinan J is the dimension of Commonwealth/state relations, and the notion that Parliament is unlikely to have intended to unduly interfere with the proper administration by the State of the provision of education or the administration of criminal law, both of which are essential state functions: see Id at 191–195.
This term is used in Gaze, above n17 at 7.
Purvis, above n1 at 180. It is also a particularly acute reflection on what has been referred to as the ‘reluctance to depart from same treatment as the ideal of equality’: Gaze, above n17 at 2.
In particular, the judgment warns of the need to take care that in construing the Act, the aims and effect of anti-discrimination legislation in other jurisdictions are not applied, and also that ‘aspirational statements’ (as in international agreements and the Act’s objects) are not used to resolve particular construction issues. The implication is that anti-discrimination legislation should not be construed any differently from other statutes, and that only ‘textual methods’ may be used to interpret and apply statutes: see for example Gaze, above n17 at 5.
See Purvis, above n1 at 135, where his Honour seems to imply that the definition would not extend to cover disabilities which pose a serious threat to others whether or not the definition required a distinction between conduct and the underlying condition.
His Honour held that Daniel’s situation would not be covered regardless of which approach was taken as the definition could not be construed as extending to ‘behaviour which is constitutes criminal or quasi-criminal conduct’: Id at 196.
Purvis, above n1 at 141.
In particular, the judgment considered that the broad definition contained in the Act was influenced by the meaning given to disability in the international community, which includes both the concepts of ‘impairment’ and ‘disability’. In Daniel’s case, his impairment is ‘hidden’ because it is not apparent until it results in a disability, so it is Daniel’s ‘inability to control his behaviour, rather than the underlying disorder, that inhibits his ability to function in the same way as a non-disabled person’: Id at 152–153.
Purvis, above n1 at 182–183.
Id at 182. The judgment also considered that the distinction was not required because it is framed as an inclusive definition, and that because the clauses overlap and are not mutually exclusive, ‘the particular grammatical structure’ used in one clause should not be given decisive effect. The need to give effect to the whole of the definition rather than to construe each paragraph separately was also considered a factor: Id at 182.
Callinan J concurred on the reasoning of Gummow, Hayne and Heydon JJ on these issues, although on his analysis of the case it was not necessary to decide those issues to dispose of the case.
Purvis, above n1 at 141–142.
 (1992) EOC 92–421 at 79,005.
IW v City of Perth  HCA 30; (1997) 191 CLR 1 at 33–34 (Toohey J) and 66–67 (Kirby J).
Commonwealth v Humphries (1998) 86 FCR 324 at 333, and Garity v Commonwealth Bank of Australia  HREOCA 2 at [6.5].
See Purvis, above n1 at 163–164.
Id at 164.
Id at 165.
Id at 159–164. The case was regarded as comparable to the situation in McNeill v Commonwealth (1995) EOC 92–714 at 78,367.
Id at 166.
Id at 157–158.
Id at 154. The meaning of ‘accommodation’ in this context is also discussed at 154.
Id at 159.
Where the unjustifiable hardship defence applied, it was that standard which qualified the obligation to provide accommodation, but there was no basis for finding a limiting concept of reasonableness: Id at 157
Id at 185.
Id at 185–186. Curiously, the judgment also stated that ‘to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act’: id at .
Id at 186.
Ibid. This is open to the criticism that in constructing a hypothetical comparator, it is inevitable that the two questions are combined because the best or ideal comparator necessarily removes from the equation all reasons for the decision other than the proscribed ground. This is referred to in a footnote in the judgment of McHugh and Kirby JJ, citing Shamoon v Chief Constable of the Royal Ulster Constabulary  UKHL 11;  2 All ER 26.
Id at 137–138.
Id at 184.
Id at 187.
Id at 138–139. Again such a conclusion is closely related to the approach his Honour took to the issues and thus to construction of the Act.
Id at 171–172.
Ibid. It was held that the Commissioner had wrongly characterised the test he applied as a ‘but for’ test although he had in fact applied the proper test.
Authority for this point was found in the decision of X v McHugh (Auditor–General (for the State of Tasmania)) (1994) 56 IR 248 at 257, followed in Y v Australia Post (1997) EOC 92–865 at 77,068.
The principle was said to be equally applicable to disabilities that manifest in ‘harmless’ characteristics, such as the difficulty with spelling as a characteristic of dyslexia, as to dangerous conduct: Purvis, above n1 at 172.