The Commonwealth of was a respondent to both proceedings. The 166 Commonwealth has agreed that if the employers are liable for discrimination it will bear the liability under s 122 of the Disability Discrimination Act. Both Messrs Prior and Nojin now appeal. 167 The detailed and careful recitation of the facts giving rise to these appeals by 168 the presiding Judge renders it unnecessary to separately engage in that exercise: at [18]-[53]. The evolution of BSWAT has also been set forth in considerable detail in the reasons of the primary Judge: [2011] FCA 1066 at [40]-[73], 283 ALR 800 at 820-829. It need not be repeated here. The presiding and her Honour are of the view that the appeals should be 169 allowed. Concurrence cannot be expressed with that conclusion. Short reasons should be provided for this contrary position. THE DISABILITY DISCRIMINATION ACT The principal provisions of the of relevance to Disability Discrimination Act 170 these appeals are ss 3, 6, 15 and 45. The principles to be applied when considering these provisions were not put in 171 issue. What was put in issue was the application of those principles to the facts. Section 3 provided at the relevant time that the objects of the Act are (inter 172 alia) “to eliminate, as far as possible, discrimination against persons on the ground of The objects of the Act, in the context of appeals such disability in the areas of work … …”. as the present, assume importance. The that requires that the particular provisions “principle it has been said, of the Act must be read in the light of the statutory objects”, of particular “is significance in the case of legislation which protects or enforces human rights”: Waters v (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J. Public Transport Corporation Section 5 deals with what is commonly referred to as direct 173 “disability and s 6 deals with The discrimination” disability discrimination”. “indirect “major between the two forms of discrimination difference” is that in the case of direct “… discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one
166 The Commonwealth of was a respondent to both proceedings. The Commonwealth has agreed that if the employers are liable for discrimination it will bear the liability under s 122 of the Disability Discrimination Act. 167 Both Messrs Prior and Nojin now appeal. 168 The detailed and careful recitation of the facts giving rise to these appeals by the presiding Judge renders it unnecessary to separately engage in that exercise: at [18]-[53]. The evolution of BSWAT has also been set forth in considerable detail in the reasons of the primary Judge: [2011] FCA 1066 at [40]-[73], 283 ALR 800 at 820-829. It need not be repeated here. 169 The presiding and her Honour are of the view that the appeals should be allowed. Concurrence cannot be expressed with that conclusion. Short reasons should be provided for this contrary position. THE DISABILITY DISCRIMINATION ACT 170 The principal provisions of the Disability Discrimination Act of relevance to these appeals are ss 3, 6, 15 and 45. 171 The principles to be applied when considering these provisions were not put in issue. What was put in issue was the application of those principles to the facts. 172 Section 3 provided at the relevant time that the objects of the Act are (inter alia) “to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of … work …”. The objects of the Act, in the context of appeals such as the present, assume importance. The “principle that requires that the particular provisions of the Act must be read in the light of the statutory objects”, it has been said, “is of particular significance in the case of legislation which protects or enforces human rights”: Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J. 173 Section 5 deals with what is commonly referred to as direct “disability discrimination” and s 6 deals with “indirect disability discrimination”. The “major difference” between the two forms of discrimination “… is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one