3 | What does the law say? In addition to being based on appropriate data, any discrimination must also be reasonable in light of other relevant factors. A ‘relevant’ factor would include any ‘matter which is rationally capable of bearing upon whether the discrimination is reasonable’.46 This includes factors that may increase the risk to the insurer as well as those that may reduce it. These may include medical opinions, the customer’s circumstances, other professional opinions, actuarial advice or opinions, practice of others in the insurance industry, and commercial judgement. The no data exemption These exemptions are sequential, such that the data exemption must be considered before the ‘no data’ exemption. If relevant data is available or could reasonably be obtained, insurers cannot rely on the no data exemption. If there is no data, the no data exemption will apply where the discrimination is objectively reasonable having regard to any other relevant factors. These factors may include: 16 SDA data exemption A data exemption similarly applies under section 41 of the SDA in relation to discrimination on the basis of a customer’s sex.47 Discrimination by an insurer against a client on the basis of their sex in relation to the terms on which an insurance policy is offered to, or may be obtained by, the client is not unlawful if it is based on actuarial or statistical data from a source on which it is reasonable to rely and the discrimination is reasonable having regard to the data. However, the SDA does not include a ‘no data exemption’. As such, no exemption is available for insurers to discriminate on the basis of sex where there is no actuarial or statistical data. As above, an insurer may be required to disclose the data to the Commission if a discrimination complaint is made to it,48 or if the matter proceeded to court. • practical and business considerations Additionally, under the SDA, regardless of whether a complaint has been made, the insurer can be required to disclose the relevant data to the customer if requested in writing.49 No similar requirement exists under the ADA or DDA. • whether less discriminatory options were available (b) Unjustifiable hardship exception • the customer’s particular circumstances • the objects of the DDA and ADA, especially the object of eliminating disability and age discrimination • all other relevant factors of the case. Unjustifiable hardship is a defence to a claim of discrimination under the DDA. The DDA provides that it is not unlawful for a person (the discriminator), including an insurer, to discriminate against a person with a disability if avoiding the discrimination would cause unjustifiable hardship on the discriminator.50