part of BSWAT; but their inclusion within BSWAT does not mean that they do not have the character of for the purposes of s 6. “conditions” The application of the relied upon by Messrs and Prior may 199 “conditions” well have resulted in each of them receiving a less favourable assessment than “a without their disabilities could obtain by reason substantially higher proportion of persons” of their ability to comply. It is possible that both Messrs Nojin and Prior could bring themselves within s 6(a). NOT REASONABLE - SECTION 6(B) But irrespective of whether or not Messrs Nojin and Prior could bring 200 themselves within s 6(a), they failed to bring themselves within s 6(b) The fact that a particular may or condition” 201 “requirement “discriminate” against a complainant is obviously not sufficient to constitute discrimination” “indirect within the meaning of s 6. To fall within s 6 the must also be one or condition” “requirement which is s 6(b). In “not reasonable having regard to the circumstances of the case”: assessing whether a is one of the or condition” “requirement “reasonable”, “circumstances” which may be taken into account is the discriminatory effect of that or “requirement but that discriminatory effect is not sufficient in itself to bring a case within s 6. condition” – In addition to the principles summarised by Sackville and JJ in Catholic 202 it should be recalled that when considering whether a Education Office, or “requirement is condition” in the circumstances”: “reasonable  the term is a term which should be construed in a manner which “reasonable” promotes the object and purposes of the Disability Discrimination Act; in determining whether a is it is for the  or condition” “requirement “reasonable”, itself to determine the views of experts and those who participated “reasonableness” – in the development of assessment tools (including BSWAT) may inform the conclusion, but those views are no substitute for the Court itself making up its own mind (cf. Rogers v (1992) 175 CLR 479 at 487-489 per Mason CJ, Brennan, Dawson, Toohey and Whittaker McHugh JJ); and  little guidance is provided as to how the of a or “reasonableness” “requirement is to be assessed other than the licence given by the legislature to have condition” – “regard
part of BSWAT; but their inclusion within BSWAT does not mean that they do not have the character of “conditions” for the purposes of s 6. 199 The application of the “conditions” relied upon by Messrs and Prior may well have resulted in each of them receiving a less favourable assessment than “a substantially higher proportion of persons” without their disabilities could obtain by reason of their ability to comply. It is possible that both Messrs Nojin and Prior could bring themselves within s 6(a). NOT REASONABLE - SECTION 6(B) 200 But irrespective of whether or not Messrs Nojin and Prior could bring themselves within s 6(a), they failed to bring themselves within s 6(b) 201 The fact that a particular “requirement or condition” may “discriminate” against a complainant is obviously not sufficient to constitute “indirect discrimination” within the meaning of s 6. To fall within s 6 the “requirement or condition” must also be one which is “not reasonable having regard to the circumstances of the case”: s 6(b). In assessing whether a “requirement or condition” is “reasonable”, one of the “circumstances” which may be taken into account is the discriminatory effect of that “requirement or condition” – but that discriminatory effect is not sufficient in itself to bring a case within s 6. 202 In addition to the principles summarised by Sackville and JJ in Catholic Education Office, it should be recalled that when considering whether a “requirement or condition” is “reasonable in the circumstances”:  the term “reasonable” is a term which should be construed in a manner which promotes the object and purposes of the Disability Discrimination Act;  in determining whether a “requirement or condition” is “reasonable”, it is for the itself to determine “reasonableness” – the views of experts and those who participated in the development of assessment tools (including BSWAT) may inform the conclusion, but those views are no substitute for the Court itself making up its own mind (cf. Rogers v Whittaker (1992) 175 CLR 479 at 487-489 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ); and  little guidance is provided as to how the “reasonableness” of a “requirement or condition” is to be assessed – other than the licence given by the legislature to have “regard
Nojin%20v%20Commonwealth%20WORD.docx