(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
- (b) Section 7C provides that the burden of proving reasonableness in the circumstances, for the purposes of s 7B, lies on the person who did the otherwise discriminating act.
- (c) Section 7D allows persons to take special measures for the purpose of achieving specified kinds of "substantive equality", but only until equality is achieved: s 7D(4). These special measures are deemed not discriminatory under other provisions of the SDA by the operation of s 7D(2), provided that the sole, dominant or substantial purpose of the special measure is to achieve a form of substantive equality specified in s 7D(1): s 7D(3). The forms of substantive equality listed in s 7D(1) are:
A person may take special measures for the purpose of achieving substantive equality between:
(a) men and women; or
(aa) people who have different sexual orientations; or
(ab) people who have different gender identities; or
(ac) people who are of intersex status and people who are not; or
(b) people who have different marital or relationship statuses; or
(c) women who are pregnant and people who are not pregnant; or
(d) women who are potentially pregnant and people who are not potentially pregnant; or
(e) women who are breastfeeding and people who are not breastfeeding; or
(f) people with family responsibilities and people without family responsibilities.
37 The respondents' pleaded defence does not rely on s 7B. In closing submissions, their lead counsel made reference to reliance on the provision, but made no attempt to explain how it applied in this case, let alone any attempt to discharge the burden of establishing that was so required by s 7C. I am therefore unable to understand how it is even conceptually able to be advanced that the imposed condition was reasonable in the circumstances, let alone be satisfied that the burden of establishing that this was so has been discharged.
38 Because the Commonwealth Parliament has no direct head of power by which to implement anti-discrimination laws, the SDA relies upon a creative suite of powers to overcome this. Section 9 of the SDA has the evident purpose of ensuring the operative provisions are given
