person when compared with another is less favourable”: Waters v Public Transport (1991) 173 CLR at 392 per Dawson and Toohey JJ. Corporation The appellants relied upon s 6 which provided at the relevant time as follows: 174 Indirect disability discrimination For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved on the ground of a disability of the aggrieved person if the person) discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply. Split into its constituent elements, s 6 requires a person who claims 175 “indirect to: discrimination”  identify a or condition” “requirement and to thereafter prove that the is one which: or condition” “requirement a  higher proportion of persons without the disability comply or are able “substantially to comply”;  is and reasonable”; “not the person with.  not or is not able to comply” “does The identification of the of an aggrieved or condition” 176 “requirement person complains is central to the resolution of any complaint of discrimination”. “indirect The phrase is one which should be construed broadly; but the or condition” “requirement alleged must nevertheless be identified with some degree of or condition” “requirement precision: cf. (1989) 168 CLR 165. Australian Iron & Steel Proprietary Limited v Banovic Dawson J there said of a comparable phrase contained within s 24(3) of the (NSW): Act 1977 Section 24(3), which defines indirect discrimination, has a much wider application and covers discrimination which is revealed by the different impact upon the sexes of a requirement or condition. The starting point with s. 24(3) must be the identification of the requirement or condition. Upon principle and having regard to the objects of the Act, it is clear that the words or condition” should be construed broadly so as to cover any form of “requirement qualification or prerequisite demanded by an employer of his employees Nevertheless, it is … necessary in each particular instance to formulate the actual requirement or condition with some precision [(1989) 168 CLR at 185].
person when compared with another is less favourable”: Waters v Public Transport Corporation (1991) 173 CLR at 392 per Dawson and Toohey JJ. 174 The appellants relied upon s 6 which provided at the relevant time as follows: Indirect disability discrimination For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply. 175 Split into its constituent elements, s 6 requires a person who claims “indirect discrimination” to:  identify a “requirement or condition” and to thereafter prove that the “requirement or condition” is one which:  a “substantially higher proportion of persons without the disability comply or are able to comply”;  is “not reasonable”; and  the person “does not or is not able to comply” with. 176 The identification of the “requirement or condition” of an aggrieved person complains is central to the resolution of any complaint of “indirect discrimination”. The phrase “requirement or condition” is one which should be construed broadly; but the “requirement or condition” alleged must nevertheless be identified with some degree of precision: cf. Australian Iron & Steel Proprietary Limited v Banovic (1989) 168 CLR 165. Dawson J there said of a comparable phrase contained within s 24(3) of the Act 1977 (NSW): Section 24(3), which defines indirect discrimination, has a much wider application and covers discrimination which is revealed by the different impact upon the sexes of a requirement or condition. The starting point with s. 24(3) must be the identification of the requirement or condition. Upon principle and having regard to the objects of the Act, it is clear that the words “requirement or condition” should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employees … Nevertheless, it is necessary in each particular instance to formulate the actual requirement or condition with some precision [(1989) 168 CLR at 185].