Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180

FEDERAL COURT OF AUSTRALIA

Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 DISCRIMINATION LAW – review of decision of Human Rights and Equal Opportunity Commission – development application for redevelopment of cinema without wheelchair access – local Council aware of possible infringement of Disability Discrimination Act – cinema owners allege unjustifiable hardship – Council approves development application – HREOC find cinema liable for discrimination – no unjustifiable hardship – Council alleged to have "permitted" disability discrimination under s 122 – HREOC concludes Council approval "not so unreasonable that no reasonable Council could have so decided" – misapplication of Wednesbury principle – possible futility of remitting matter to HREOC – elements of s 122 – unlawful act of a principal – unjustifiable hardship a defence rather than element of liability – burden of proof considered – requisite degree of knowledge – criminal concept of knowledge inappropriate – s 122 carefully drafted – distinct from common law notions of accessory liability – broad purposes of Act – promotion of fundamental rights – knowledge of lack of unjustifiable hardship not required – defence of honest and reasonable mistake of fact Administrative Decisions (Judicial Review) Act 1977 (Cth) Disability Discrimination Act 1992 (Cth), ss 3, 5, 6, 11, 23, 47, 122 Environmental Planning & Assessment Act 1979 (NSW), s 90 Environmental Planning & Assessment Regulation 1994 (NSW), r 65 Evidence Act 1995 (Cth), s 144 Sex Discrimination Act 1984 (Cth), s 105 Trade Practices Act 1974 (Cth), s 75B Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 Broad v Parish (1941) 64 CLR 588 Giorgianni v The Queen (1985) 156 CLR 473 Kirushanthan Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24