Notice of application for exemption
under the Disability Discrimination Act: Powers under Firearms Act 1973
(WA)

See
now also notice
of decision

Contents

Call
for submissions

Overview

Options
for Commission decision

Issues

Temporariness
or permanence of need for exemption

Relevance
of public health and safety issues to exemption decisions

Does
any substantial issue of unlawfulness under the DDA arise

Services

Exercise
of powers under sections 11 and 20 as services

Actions
of medical practitioners under section 23B

Qualifying
bodies

Is
there any discretionary act to complain of

Decisions
of Police Commissioner

Actions
by medical practitioners

Consideration
of public safety issues under DDA provisions

Unjustifiable
hardship defence

Inherent
requirements

Alternative
remedies provision

Call
for submissions

The
Commissioner of Police for Western Australia has requested an exemption
under section 55 of the DDA, for a period of five years, regarding exercise
of powers under the Firearms
Act 1973 (WA).

Section 55 of the Disability
Discrimination Act (DDA) gives the Human Rights and Equal Opportunity
Commission the power to grant temporary exemptions from provisions of
the DDA. Exemptions may be granted for up to five years at a time.

The effect of an exemption is that actions or circumstances covered by
the exemption are not unlawful under the DDA while the exemption remains
in force.

In keeping with its
policy
on exemption applications
under the DDA the Commission is seeking public comment before making a
decision on this application. This paper presents for comment issues and
options for a proposed Commission decision.

As well as assisting
in determination of this exemption application, comments on this point
may assist governments and others concerned in deciding whether prescription
of the Firearms Act 1973 (WA) and similar legislation in other jurisdictions
for the purposes of DDA section 47(2) would be effective and appropriate
as an alternative or additional approach to an application for temporary
exemption .

Comments should be
received by the Commission by 28 April 2000, preferably by e-mail
to disability@humanrights.gov.au
. Comments may also be submitted by mail to Disability Rights Unit, Human
Rights and Equal Opportunity Commission, GPO Box 5218 Sydney 1042.

The Commission will
post comments to its web site as they are received, except where and to
the extent that confidentiality is specifically requested.

Overview

The
Firearms Act 1973 deals with control and regulation of firearms and ammunition
in Western Australia, including issue, renewal and revocation of permits,
approvals or licenses to person possessing, using, dealing with or manufacturing
firearms and ammunition.

Section 11 sets out
and limits the circumstances in which the Commissioner (or delegate) can
grant an approval or issue a permit or license, and includes the following
provisions.

(1)The Commissioner
cannot grant an approval or permit or issue a licence under this Act
to a person if the Commissioner is of the opinion that

(a) to do so would be contrary to section 11A or regulations under section
11B or 11C;

(b) it is not desirable in the interests of public safety; or

(c) the person is not a fit and proper person to hold the approval,
permit, or licence.

(2) Where the Commissioner
is satisfied that a person has a history of, or a tendency towards,
violent behaviour, the Commissioner may take it into account in deciding
whether that person is a fit and proper person to hold an approval,
permit, or licence.

(3) The Commissioner
has a sufficient ground for forming an opinion that a person is not
a fit and proper person to hold an approval, permit or licence under
this Act if the Commissioner is satisfied that

(a) at any time within the period of 5 years before the person applies
for the approval, permit or licence (i) the person was convicted of
an offence involving assault with a weapon;

(ii) the person was convicted of an offence involving violence;

(iii) the person was convicted of any offence against this Act; or

(iv) a violence restraining order was made against the person, whether
in this State or in any other place; or

(b) the person fails to meet standards of mental or physical fitness
that the Commissioner considers to be necessary for the person to hold
the approval, permit or licence.

Section 20 provides
for revocation of approvals, permits or licenses in line with the grounds
provided in section 11.

Section 23B provides
that

(1)If a medical practitioner
is of the opinion that

(a) because of the patient's physical, mental, or emotional condition,
it is not in the person's interest or not in the public interest that
the person possess any firearm or ammunition to which the patient is
believed to have access; or

(b) a person is seeking or has sought medical assistance for an injury
in the infliction of which a firearm or ammunition is believed to have
been involved, nothing prevents the medical practitioner in good faith
from informing the Commissioner of that opinion.

(2) This section
has effect despite any duty of confidentiality, and nothing done by
a medical practitioner in good faith in accordance with this section
gives rise to a criminal or civil action or remedy.

The application seeks
an exemption regarding discretionary powers under sections 11, 20 and
23B of the Firearms Act in the interests of public safety.

Exercise of the powers
under these sections may involve discrimination in provision of services
under section 24 of the DDA. Exercise of powers by the Police Commissioner
under sections 11 and 23B may also involve discrimination under DDA section
19 regarding occupational qualifying bodies where the license, permit
or approval is sought for occupational purposes.

The Police Commissioner
and medical practitioners have defences available under the DDA by reference
to concepts of unjustifiable hardship (under section 24) and inherent
requirements (under section 19). The effect of these defences in the Commission's
view is that if actions taken under the Firearms Act are taken reasonably,
no unlawful act will be found, even if no exemption is granted.

Further, decisions
by the Police Commissioner are subject to an appeal procedure under the
Firearms Act and it could be argued in response to a complaint that the
Commission should exercise its power to decline to deal with complaints
where there is a more appropriate alternative remedy available.

An exemption would
remove any doubt about the lawfulness, for the purposes of the DDA, of
reasonable actions under the Firearms Act. It would also (while in force)
remove the ability to have any unreasonably discriminatory decisions reviewed
under the DDA, although the appeal procedure under the Firearms Act would
remain available. Complaints under the local Equal
Opportunity Act
(W.A.) might also remain available, unless a comparable exemption were
obtained from the Equal Opportunity Tribunal under that Act (or unless
the federal exemption were regarded as excluding the operation of the
State legislation pursuant to section 109 of the Constitution).

Options
for Commission decision

Comments
would be welcome on the following options:

1. Grant exemption,
on condition that Police Commissioner include in his annual report a report
on decisions under the exempted provisions and on operation of the appeal
procedure, on grounds that

• granting an exemption
  as applied for could prevent uncertainty about possible liability under
  the DDA from hindering police and medical practitioners performing public
  duties to protect public safety
• any unjustified
  refusals of licenses, approvals or permits remain reviewable through
  the appeal procedure under the Firearms Act
  
  procedures under the Firearms Act are more appropriate for determining
  issues of access to firearms than complaint procedures under the DDA
  and this should be recognised through an exemption rather than only
  on a case by case basis.

2. Refuse application
for exemption on grounds that

• an exemption has
  not been shown to be required, since complaints regarding legitimate
  decisions and actions can be expected to be declined as not unlawful,
  or as more appropriately dealt with through the appeal procedure under
  the Firearms Act
• it is appropriate
  for any unjustified license refusals not adequately remedied through
  this appeal procedure to remain reviewable under the DDA
• it is not appropriate
  to use the temporary exemption procedure indefinitely and the application
  gives no indication that the position will be any different in future.

3. Grant exemption
only regarding actions by medical practitioners under Firearms Act section
23B; refuse regarding actions by Police Commissioner as indicated in option
2.

Issues

The following issues appear to be relevant
to the Commission's consideration of this application, in determining
whether an exemption should be refused, or granted with or without conditions.
Comments on these, or any additional issues which should be considered,
would be welcome.

• Should the Commission
  be prepared to grant a temporary exemption in circumstances where the
  reasons advanced for the exemption do not appear temporary?
• What weight should
  the Commission give safety issues in considering an exemption?
• Does any substantial
  issue of unlawfulness under the DDA arise in this case so as to require
  consideration of an exemption?
• In particular should
  the powers under sections 11 and 20 of the Firearms Act be regarded
  as non-discretionary such that DDA complaints would be declined?
• Does the DDA provide,
  in its substantive and procedural provisions, for appropriate consideration
  of public safety issues without an exemption?
• In particular is
  the unjustifiable hardship exception regarding provision of services
  relevant and sufficient?

Temporariness
or permanence of need for exemption

Exemptions
granted by the Commission to date have been intended and designed to promote
these objects by allowing persons and organisations with obligations
under the Act to implement transitional measures to achieve equality over
time.

The present application
is different in kind. It does not seek time to change infrastructure or
practices to conform to the DDA. If the restrictions on access to firearms
which the Police Commissioner seeks to protect by this exemption application
are justifiable now presumably they will also be justifiable in five years
time at the conclusion of the requested exemption, although some of the
need perceived for this exemption might be modified either with experience
during the period of operation of an exemption, or by other legislative
or regulatory developments in the interim.

To date the Commission
has not favoured using the DDA exemption procedure simply to certify that
an action, practice or state of affairs, although discriminatory under
the legislation, need not be altered. Reasons which can be advanced against
using the exemption power as a certifying power have included:

• the formal argument
  that the power is one of exempting otherwise unlawful acts, not certifying
  lawfulness
• questions whether
  certification in this way could inappropriately deprive persons aggrieved
  by discrimination of access to justice, since their circumstances might
  not be known in advance in the context of making an exemption decision
• questions whether
  an administrative exemption power should be used in effect to amend
  the legislation to conform with the administering agency's or other
  views of what Parliament should have provided but did not
• the argument identified
  by a number of agencies administering similar powers that the temporary
  nature of exemption powers indicates that they should be used to manage
  temporary and transitional conflicts between discriminatory present
  realities and non-discriminatory legal requirements, rather than permanent
  states of affairs.

There is, however,
no barrier within the DDA to repeated applications for exemption being
made, indefinitely into the future so long as an applicant sees need for
or benefit in this. It does not appear open to the Commission to refuse
to consider an application for temporary exemption simply because it may
be followed by another application in future. The issue is whether this
is a proper case for exercising the power to exempt.

Relevance
of public health and safety issues to exemption decisions

The
Commission's policy on DDA exemptions notes that administrative law principles
require that the power of the Commission under the DDA to grant exemptions
should be exercised consistently with the objects of the DDA. These objects
(set out in section 3 of the DDA) are to eliminate, as far as possible,
discrimination against persons on the ground of disability (in certain
areas); to ensure, as far as practicable, that persons with disabilities
have the same rights to equality before the law as the rest of the community;
and to promote recognition and acceptance within the community of the
principle that persons with disabilities have the same fundamental rights
as the rest of the community.

As noted above, unlike
previous exemptions granted by the Commission under the DDA this application
does not contemplate that the practices concerned need to be changed over
time to conform more closely to the DDA or to better promote its objects,
but rather more simply that the DDA should not apply to the actions concerned.

At first sight it is
not easy to see how such an exemption would promote or be consistent with
the objects of the Act.

Exemptions which simply
suspend the operation of discrimination legislation have been more common,
and are more readily seen as promoting the objects of that legislation,
in cases where a beneficial measure for a disadvantaged group intended
to be benefited by the legislation might otherwise be struck down by defective
drafting or mechanical interpretation of that legislation - for example
exemptions to protect facilities for women from being rendered unlawful
by sex discrimination legislation.

However, the objects
of the DDA do refer to elimination of discrimination "as far as possible",
contemplating some need for definition from time to time of what may be
"possible", including through the exemption mechanism.

It is also necessary
to refer to section 10A(1) of the Human Rights and Equal Opportunity Commission
Act provides:

It is the duty of
the Commission to ensure that the functions of the Commission under
this or any other Act are performed ... with regard for . the principle
that every person is free and equal in dignity and rights .

The Commission is therefore
required to have regard to the rights of all members of the Australian
community where relevant to exercise of its functions rather than only
to those of immediate parties to a complaint, exemption application or
other matter.

Clearly, recognition
in terms of the objects of the DDA that "persons with disabilities
have the same rights to equality before the law as the rest of the community"
does not mean that a person with a disability should have any more right
to unsafe access to firearms than other members of the community.

It does not therefore
appear impermissibly inconsistent with the objects of the DDA to grant
an exemption as requested in this case - if such an exemption is shown
to be justified.

Does
any substantial issue of unlawfulness under the DDA arise

It
would be unnecessary and improper for the Commission to grant an exemption
and seek to impose conditions regarding conduct to which the DDA simply
does not apply.

More broadly, it might
be argued that exemptions can only be granted regarding what would otherwise
be unlawful acts, and that the Commission should therefore refuse an exemption
if it thinks the acts concerned are not or would not be unlawful. However,
the Commission's practice to date (under the DDA) has not been to require
that an applicant for exemption should, if the exemption is not granted,
be certain to be acting unlawfully under the DDA. Otherwise, there would
be the result that the less justifiable (or more unreasonably discriminatory)
the applicant's position under the DDA, the better their prospects would
be of being granted an exemption. This would be perverse both in common
sense and considering the requirement that the exemption power (like any
other statutory power) should be used consistent with and as a means of
promoting the objects of the legislation.

Exemptions have been
granted by the Commission where, although the applicant might have good
prospects of successfully defending a complaint by reference to unjustifiable
hardship factors, there is also a substantial prospect that the actions
concerned could be found unlawful. In order to address this prospect and
remove the uncertainty of their legal position and the need to spend time
and other resources in defending complaints, applicants in some cases
have been prepared to agree to and implement measures which promote the
objects of the legislation. The decision of the Commission regarding accessibility
of the Melbourne
tram system
provides the most detailed example in this respect.

For an exemption to
be considered, however, there must be some provision or provisions of
the DDA which could apply to the actions concerned - not least so that
any exemption can specify the provisions to which it applies.

Services

The DDA (section
24) applies to discrimination in the provision of services, including
services of a kind provided by government and services provided by a profession
(such as the medical profession).

Exercise
of powers under sections 11 and 20 as services

There might
appear to be considerable substance in a distinction between provision
of services and making of a decision under a statutory discretion. Clearly
it is unrealistic to describe a person as being provided with a "service"
by being arrested or sentenced under the criminal law for example. On
the other hand, accepting such a distinction in all cases could substantially
restrict the effectiveness of the DDA and similar legislation in reviewing
discriminatory actions of Federal, State, and local government officials,
since most if not all government decisions in this country are made under
law (whether more or less directly).

To date the Commission
has accepted complaints regarding driver licensing as being covered by
the DDA, although these have generally been declined having regard to
availability of remedies other than the DDA.

The meaning of "services"
in the similar context of the Equal Opportunity Act W.A. has been extensively
considered by the High Court in IW
v City of Perth and others
(31 July 1997),

Chief Justice Brennan
and Justice McHugh J commented as follows:

The term "services"
has a wide meaning. The Macquarie Dictionary relevantly defines
it to include "an act of helpful activity"; "the providing
or a provider of some accommodation required by the public, as messengers,
telegraphs, telephones, or conveyance"; "the organised system
of apparatus, appliances, employees, etc., for supplying some accommodation
required by the public"; "the supplying or the supplier of
water, gas, or the like to the public"; and "the duty or work
of public servants". But wide as the definition is, in our opinion
it is not capable of including a refusal to exercise the statutory discretion
provided for by the Town Planning and Development Act 1928 (WA)

. when a council
is required to act in a quasi-judicial role in exercising a statutory
power or duty, it may be inappropriate to characterise the process as
the provision of a service for the purpose of the Act even in cases
where the product of the process is the provision of a benefit to an
individual. This is likely to be the case where the council, before
making a decision, is required to consider matters that affect the public
interest.

However, Justices Dawson
and Gaudron, Toohey, Gummow, and Kirby took the view that there had been
no error in the Equal Opportunity Tribunal deciding that making a decision
in exercise of the statutory discretion concerned could be a service.

Justices Dawson and
Gaudron commented that:

"services",
a word of complete generality, should not be given a narrow construction
unless that is clearly required by definition or by context. . Within
the context of s 66K(1), a person who provides a service by exercising
a discretion to grant or withhold approval may discriminate against
a person in the exercise of that discretion by refusing to exercise
it at all (par (a)), by imposing terms and conditions (par (b)), or
by exercising it in a particular manner (par (c)). Subject to the question
whether the appellant is an aggrieved person, it may be that a case
can be made that, in refusing PLWA's application, the City of Perth
exercised its discretion in a discriminatory manner and, thus, infringed
s 66K(1)(c) of the Act.

(The complainants in
this case failed on other grounds, because of issues of standing and because
the appeal had been pursued incorrectly as if service had been refused,
which a majority of justices found it had not, rather than regarding the
manner in which services had been provided.)

On this basis, it
would at least appear open to a body dealing with a complaint to find
that the Commissioner of Police or delegate is providing a service in
considering or determining applications for licenses, permits or approvals.

Actions
of medical practitioners under section 23B

No issue under
the DDA appears to arise from a medical practitioner notifying police
that an injury has arisen from use of firearms: accepting that a person's
injury and need for medical treatment may constitute a disability, any
discrimination is not because of this but between people whose injury
is and is not apparently caused by a firearm - which has nothing to do
with the DDA.

However, a medical
practitioner notifying police that a patient should not have access to
firearms because of physical, mental, or emotional condition may be argued
to be treating that patient less favourably in the provision of medical
services than patients not having or being in the same condition - at
least where the notification is made in the interests of public safety
rather than of the patient's own health. Any less favourable treatment
would fairly clearly be because of the person's disability where the "condition"
concerned is a physical disability or mental illness.

Is
there any discretionary act to complain of

Where the substance
of a complaint is the operation of a provision of a valid and applicable
law which leaves the respondent no discretion, the Commission will regard
the complaint as not involving any unlawful act by the respondent: summary
of decline
decision
9 June 1999

On a number of occasions
the Commission's President has upheld decisions by the Disability Discrimination
Commissioner that a complaint of discrimination cannot be maintained where
the person doing the act complained of had no power or discretion to act
otherwise. Several of these decisions in the area of administration of
Commonwealth laws and programs are summarised on the Commission's internet
site.

Decisions
of Police Commissioner

Section 11
of the Firearms Act commences by stating that

The Commissioner
cannot grant an approval or permit or issue a licence under this Act
to a person if the Commissioner is of the opinion that .

Once the Commissioner
or delegate has the relevant opinion, he or she simply lacks any power
to grant an approval, permit or licence. It could be argued there is then
no discretionary act in refusing, and hence no discriminatory act to which
the DDA may apply, so far as actions under sections 11 or 20 of the Firearms
Act are concerned.

This interpretation
could be seen as artificial and as undermining the effectiveness of protection
offered by the DDA, if discretionary decisions can be removed from review
under the DDA by being cast in the form of a discretionary process of
forming an opinion on which the law then operates.

On the other hand,
while the DDA must be interpreted consistently with its own objects as
far as possible, there is no mandate for the Commission or the courts
to interpret other legislation such as the Firearms Act as favourably
for the objects of the DDA as possible, rather than in accordance with
the objects of the Firearms Act.

The Commission seeks
comments on this issue.

As well as assisting
in determination of this exemption application, comments on this point
may assist governments and others concerned in deciding whether prescription
of the Firearms Act WA and similar legislation in other jurisdictions
for the purposes of DDA section 47 would be effective and appropriate.

Actions
by medical practitioners

Section 23B
of the Firearms Act 1973 (WA) states that "nothing prevents"
the medical practitioner from notifying police of an opinion that a patient
should not have access to firearms. It does not provide any mandatory
duty to notify so as to provide a medical practitioner with no discretion
in the matter. Such a mandatory provision would protect medical practitioners
from liability under the DDA if it has the effect as interpreted to date
by the Commission, and more certainly still if such a provision were prescribed
for the purposes of DDA section 47(2) (since this would exclude any possibility
of the Firearms Act provision being found inoperative pursuant to section
109 of the Constitution).

However, there is no
such mandatory provision and the statement in the Firearms Act excluding
civil liability is obviously not effective in itself to exclude any liability
that might arise under Federal law (since State legislatures lack capacity
to provide unilaterally that Federal remedies shall not apply).

Qualifying
bodies

Whether or
not exercise of the powers under sections 11 and 20 of the Firearms Act
involves provision of services, the DDA will apply in those instances
where a person seeks a license, permit or approval for occupational purposes.
Section 19 of the DDA provides that it is unlawful for

an authority or body
empowered to confer, renew, extend, revoke or withdraw an authorisation
or qualification that is needed for or facilitates the practice of a
profession, the carrying on of a trade or the engaging in of an occupation
to discriminate on grounds of disability

(a) by refusing or
failing to confer, renew or extend the authorisation or qualification;
or

(b) in the terms
or conditions on which it is prepared to confer the authorisation or
qualification or to renew or extend the authorisation or qualification;
or

(c) by revoking or
withdrawing the authorisation or qualification or varying the terms
or the conditions upon which it is held.

This is subject to
the proviso that any discrimination in this area is not unlawful if the
person because of his or her disability would be unable to carry out the
inherent requirements of the profession, trade or occupation. Whether
this proviso gives sufficient scope for proper exercise of the powers
under the Firearms Act without an exemption is discussed below.

Consideration
of public safety issues under DDA provisions

In
HREOC
v Mt Isa Mines
the Full Federal Court emphasised that discrimination legislation was
relevant to regulatory bodies responsible for health and safety although
this should not lead them to abrogate their own function or in effect
delegate their responsibility to bodies administering discrimination law.

Similarly, issues of
public health and safety are relevant in the administration of a number
of provisions of the DDA. Whether these provisions provide appropriate
substantive coverage of these issues in all respects, and whether it is
appropriate to leave these issues to determination through the complaint
process through the Commission and the courts rather than through the
exemption process or through prescription of relevant laws under DDA section
47 requires more detailed consideration.

Unjustifiable
hardship defence

Section 24
of the DDA provides that it is not unlawful to discriminate against a
person in provision of goods, services or facilities if the provision
of the goods or services, or making facilities available, would impose
unjustifiable hardship on the person who provides the goods or services
or makes the facilities available.

Although this provision
refers only to hardship imposed on the provider, section 11 specifies
that decisions regarding unjustifiable hardship should take into account
benefit and detriment to any person affected. It thus appears that it
would be open to the Police Commissioner or to a medical practitioner
acting under the Firearms Act to raise risks to public safety in the context
of an unjustifiable hardship defence to a complaint.

This provision however
may not be regarded as sufficiently specific to provide appropriate protection
for legitimate decisions and actions under the Firearms Act.

Inherent
requirements

As noted, it
is not unlawful for a body issuing an occupational qualification to discriminate
where the person because of disability is unable to perform the inherent
requirements of the position concerned.

In X
v The Commonwealth
(2 December 1999) all members of the Court emphasised that the inherent
requirements of a job are not restricted to performance of the physical
tasks involved. Justice McHugh commented that

It would be extremely
artificial to draw a distinction between a physical capability to perform
a task and the safety factors relevant to that task in determining the
inherent requirements of any particular employment. That is because
employment is not a mere physical activity in which the employee participates
as an automaton. It takes place in a social, legal and economic context.

The ability to work
safely (that is, without unreasonable risks to others) has been previously
noted by the Commission as an inherent requirement: see Woodhouse
v Wood Coffill Funerals
(Commissioner Innes) and in the Commission's published Frequently
Asked Questions
on employment.

In X v the Commonwealth
Gummow and Hayne JJ noted that:

deciding what is
a "reasonable" degree of risk to others . will present difficult
questions of judgment.

For the purposes of
this exemption application, an important question is, who should be making
the judgment of when an unreasonable risk is presented by someone having
access - or, more precisely, how closely reviewable under the DDA these
judgments should be.

Alternative
remedies provision

The
DDA provides for the Disability Discrimination Commissioner to decline
to investigate complaints on a number of grounds, including where the
Commissioner thinks that some other more appropriate remedy in relation
to the subject matter of the complaint is reasonably available. Summaries
of decisions
on this and related grounds are available on the Commission's web site
including the following example:

Refusal of drivers licence already considered by court

A man
with a disability affecting his balance and communication complained
that he had been discriminated against when the NSW Roads and Traffic
Authority refused to grant him a licence or permit him to take further
driving tests unless there was medical evidence of improvement in his
condition. This occurred after accidents and after driving tests where
his driving was assessed as of a poor and dangerous standard. The Commissioner
declined the complaint, on the basis that there had been no unlawful
discrimination since any condition or requirement applied should be
considered reasonable in the interest of public safety and since the
matter had already been adequately dealt with in an appeal to the Local
Court as provided for under the Roads and Traffic Act. The President
confirmed the decision to decline the complaint, on the basis that the
matter had been adequately dealt with by the court. She noted that it
would be inappropriate for the Commission to review the decision of
a court which was in effect what was being sought in this case (1999).

Section 22 of the Firearms
Act provides for appeals from decisions of the Police Commissioner to
a magistrate or to a firearms appeal tribunal. The Commission would necessarily
have regard to this in deciding whether to deal with complaints in this
area.

Possible discrimination
by medical practitioners in disclosing information and opinion on patients
to the Police Commissioner could also be found to be more appropriately
dealt with by bodies specifically established to monitor delivery of medical
services, as the Commission has found in a number of medical services
complaints previously.

The power of the Commission
to decline to deal with complaints because there is another more appropriate
remedy available may be seen as a reason why an exemption is not required
- since the Commission can decide not to intervene unless it appears that
alternative remedies are not functioning appropriately. Alternatively
it could be seen as a reason to grant the exemption - since the terms
of an exemption can be set so as to permit monitoring of how well other
remedies are functioning.