People With Disability Australia Incorporated and Australian Human Rights Commission

People With Disability Australia Incorporated (PWDA) sought review of decisions made by the Australian Human Rights Commission (AHRC) to grant exemptions under section 55 of the *Disability Discrimination Act 1992* (Cth) (DDA). These exemptions permitted Australian Disability Enterprises (ADEs) to continue using the Business Services Wage Assessment Tool (BSWAT) to assess the wages of supported employees. The dispute arose in the context of the *Nojin v Commonwealth of Australia* [2012] FCAFC 192 decision, which found the use of BSWAT to be unreasonable and potentially discriminatory. The decisions under review granted a ten-month extension to an earlier exemption.

The court was required to determine whether the AHRC's decisions to grant the exemptions were correct and preferable on the material before the Administrative Appeals Tribunal (AAT). Specifically, the court considered whether the exemptions were inconsistent with the objects of the DDA, whether they deprived supported employees of the benefit of the *Nojin* decision, and whether they aligned with transitional arrangements for the use of BSWAT. The court also considered the utility of the relief sought by PWDA, noting that the exemption period had already ceased.

The court reasoned that the task of the Tribunal was to make the correct or preferable decision based on all relevant information available up to the date of its own decision, not solely on the material before the AHRC at the time the original decisions were made. The court rejected the submission that the decisions under review were inconsistent with the objects of the DDA, explaining that the DDA itself contemplates limited occasions where discrimination may be tolerated, such as those for which it provides exemptions. The court found that the exemptions were conducive to an orderly transition away from BSWAT, providing clarity and certainty for ADEs and the Commonwealth during this period. The court also noted that the exemptions were granted for a limited time and subject to significant conditions, and were aligned with transitional arrangements in the Supported Employment Services Award.

The court affirmed the decisions under review.