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Frequently asked questions: Disability Standards

Provision was made in the DDA for making of disability standards for two major purposes: to set legislative deadlines for achieving equal access for people with disabilities in the areas covered by the DDA; and to provide more definite and certain benchmarks for accessibility and equality than is provided by the general anti-iscrimination model.

For more information on Disability Standards under the D.D.A., see our standards page . See also our FAQ pages on particular areas such as transport.

What areas can disability standards cover under the DDA?
Are any standards in force under the DDA?
How are DDA standards be enforced?
How do standards affect rights and responsibilities under the existing provisions of the DDA?
What happens where a standard does not deal with an issue covered by the DDA?
Do standards have to have the same effect as existing DDA provisions?
What effect do DDA standards have on State and Territory discrimination laws?
Why is there provision for exemptions from the Transport Standards?
Is the Commission responsible for Disability Services standards?
Are DDA Standards the same as Australian standards?
Are the Disability Standards on education consistent with the principles set out by the Full Federal Court in Catholic Education Office v Clarke?

What areas can disability standards cover under the DDA?

Standards can be made in the areas of employment, education, public transport services, access to premises, accommodation and the administration of Commonwealth laws and programs.

Are any standards in force under the DDA?

Standards for Accessible Public Transport were approved in 2002. Standards on education entered into force in 2005. Standards on access to premises have been tabled for Parliamentary approval. See our standards page for developments.

How are DDA standards enforced?

The DDA does not provide a separate enforcement regime for standards. Non-compliance with a standard is an unlawful act under the DDA in the same way that non-compliance with one of the existing anti-discrimination provisions is an unlawful act. In each case a complaint can be made to the Commission by or on behalf of a person or class of persons aggrieved by the act of discrimination, with provision for complaints to be taken to the Federal Court or Federal Magistrate's Service if the Commission is unable to resolve the matter by conciliation. The difference that Disability Standards are intended to make to this process is that it should be clearer in advance what people's rights and responsibilities are, without having to resort to complaint and litigation processes to find out.

Do standards have to have the same effect as existing DDA provisions?

No. This would be an impossible requirement on many issues - since the whole point of standards is that the precise requirements of the existing provisions are not known or able to be known with certainty until decidced by the courts. The DDA does not make valid Standards impossible by requiring that Disability Standards should nonetheless somehow trace precisely the same, unknown, level of rights and obligations as the existing provisions.

Section 32 of the DDA, by providing that it is unlawful to contravene a DDA Standard, necessarily contemplates that a Standard may make something unlawful which is not already unlawful under the DDA.

Section 34 of the DDA, by providing that if a person's act is in accordance with a disability standard then the existing unlawful discrimination provisions do not apply to that act, necessarily contemplates that a standard may make something lawful which would otherwise have been unlawful, or potentially unlawful.

General administrative law rules mean that standards under the Disability Discrimination Act have to serve the same objects as the existing DDA provisions - principally, to eliminate discrimination as far as possible. They also have to fall within the scope or "four corners" of the DDA (including the provisions in section 12 setting out the constitutional basis for application of the DDA). But, subject to those rules, legally valid standards can

How do standards affect rights and responsibilities under the existing provisions of the DDA?

If a Disability Standard is in force and applies to a particular issue, then, because of DDA sections 32 and 34, the Standard provides the legally applicable rule and the existing provisions do not.

For example:

What happens where a standard does not deal with an issue covered by the DDA?

A Disability Standard on one of the general topics on which standards can be made under the DDA - public transport, access to premises, education, employment, or administration of Commonwealth laws and programs - will not necessarily provide a complete code which displaces all application of the existing DDA provisions on that subject. How far it displaces the existing DDA provisions will depend on the terms of the particular standard.

It will also depend on the precise effect which the courts give (if necessary) to the concept of acting "in accordance with" a standard. As no standards are yet in force, there have been no decisions on this point to date.

A person is protected by DDA section 34 from liability under the existing anti-discrimination provisions of the DDA only if the person acts " in accordance with a Disability Standard". If a Disability Standard does not deal with a particular issue at all, or expressly reserves that issue to the existing provisions of the DDA, then it is hard to see how an action on this issue could be said to be "in accordance with" the Standard.

For example:

This does not mean, however, that the existing anti-discrimination provisions will be able to be used to seek a different result where a Standard already provides an answer. The remedy in this case is to seek to negotiate a revision to the Standard.

For example:

What effect do standards under the DDA have on State and Territory discrimination laws?

This depends on the terms of the particular Standard concerned and on what intention Federal authorities show in making it, and also on what actions States and Territories might take to take account of federal dsabilty standards in their own discrimination laws.

Under section 109 of the Australian Constitution, Federal laws displace the operation of State laws to the extent of any inconsistency between the two. Inconsistency can arise either directly - where the two laws would lead to different results - or through the Federal law being found to be intended to "cover the field" and not leave any room for State laws to operate.

A standard which leaves some issues covered by residual operation of the general anti-discrimination provisions of the DDA is likely to be found to leave those same issues as covered by the equivalent general provisions of State and Territory laws. But on those issues where the standard displaces the operation of the general provisions of the DDA it would also be likely to displace the operation of general provisions of State laws.

It is clear from the decision of the High Court in Clyde Engineering v Cowburn that there is direct inconsistency if Commonwealth legislation permits conduct which State legislation prohibits.

For example, a complainant might seek under a State law to have 100% of bus route services made accessible. If the operator is meeting the timetable under the federal Standards for proportions of accessible vehicles in its fleet, there is no unlawful act involved in failing to have gone further than that timetable to achieve 100% access. Following the Clyde Engineering case, it is not valid to say that there is no inconsistency on the basis that both laws can be complied with (since 100% access will not only meet but exceed the Federal standard). The effect of the Federal law is that, until the 100% compliance point in the schedule is reached, less than 100% access is permitted; if the effect of the State law is that less than 100% access is not permitted, then there is direct inconsistency.

If the operation of State laws and availability of State remedies is to be preserved in this situation, there may need to be State legislative provisions to apply the Federal standards - either (most simply) as a defence to complaints under general discrimination provisions, or possibly by inserting mirror standards provisions in State legislation and remaking the Federal standards as State standards.

Why is there provision for exemptions from the Transport Standards?

Amendments to the DDA in 2002, allowing the Commission to grant temporary exemptions from the Disability Standards for Accessible Public Transport in the same way that it can grant exemptions from the existing DDA provisions, were passed prior to the tabling of these Standards. Provision for this exemption power was one of the conditions of agreement by Transport Ministers for the Standards to proceed. The Commission supported these amendments.

The Standards are intended to provide certainty for transport providers and for consumers in the very substantial process of transition now under way to accessible public transport systems for Australia. It is also important however that there be sufficient flexibility in this process to ensure that operators are able to make the transition effectively. This includes a need for a process to consider unforeseen technical issues which arise, and other exceptional issues whcih may face some operators.

The exemption process enables the Standards to be tailored to provide this degree of flexibility. This should mean that operators will be less likely when facing difficulties to decide simply to hide behind a possible unjustifiable hardship defence - instead they will be able to put forward alternative plans for complying with the same objects as the Standards but perhaps by different methods or with a varied timetable for some elements.

An example would be where an operator needs to trade off extra time for some elements where they have difficulty meeting the timetable provided in the standards, against other elements where they can do better than the timetable.

The Commission only approves exemptions where it is convinced that this is consistent with the objects of the legislation. Temporary exemptions have had an important role in facilitating the progress that has been made in accessible transport in several states.

The Commission has an established policy of conducting public consultation before making a decision on exemption applications under the Disability Discrimination Act, and will continue to apply that policy. (This is in addition to the specific requirement in the amending legislation to consult the National Transport Secretariat. We will welcome the additional expertise which we expect the NTS to be able to contribute.)

Transport operators or consumers who disagree with and feel aggrieved by any decision the Commission makes will continue to be able to seek review of exemption decisions in the Administrative Appeals Tribunal.

Is the Commission responsible for Disability Services standards?

No.

There are standards for services specifically addressed to some people with a disability (including supported employment services) set under Federal and State Disability Services Acts. The Commission is not responsible for and has no direct expertise in these standards. The standards formulated under the Disability Services Act 1986 (Cth) are available at http://www.fahcsia.gov.au/internet/facsinternet.nsf/viA/nsds1993/$file/nsds1993.rtf

There is also a training package for disability services at http://www.facs.gov.au/disability/ci_handbook/contents.html

The main focus of the D.D.A., and the Commission's work under the D.D.A., is on access for people with a disability to services and opportunities open to the community more generally. The Disability Standards which can be made under the D.D.A. (in the areas of employment , education, public transport services, accommodation, access to premises, and administration of Commonwealth laws and programs) are not the same as Disability Services Act standards.

Are D.D.A. disability standards the same as Australian Standards?

No.

The D.D.A. provides for Disability Standards to be made which have the force of Federal law.  Disability Standards under the D.D.A. can be made by the Attorney-General and require approval by the Federal Parliament.

Australian Standards are guidelines which do not have the force of law in themselves. They are developed by a private organisation, Standards Australia. Australian Standards receive a high degree of respect but do not always or in themselves have the force of law. Australian Standards have not necessarily  undergone the same approval processes required for D.D.A. Disability Standards (including the Regulation Impact Statement process of analysis and consultation).

It is possible for a law (including a Disability Standard under the D.D.A.) to refer to particular Australian Standards and give their content the force of law. Existing Australian Standards are frequently given legal force, rather than  regulatory bodies duplicating the work which has already gone into producing Australian Standards.

In particular, the D.D.A Disability Standard on Accessible Public Transport currently use the specifications provided by a number of Australian Standards.

It should be noted however that people's rights and obligations under the D.D.A. must be determined by reference to the D.D.A. itself, and any D.D.A. Disability Standards in force from time to time. Those Australian Standards which have not been given  the force of law under the D.D.A. are valuable sources of information but they do not necessarily solve issues that arise under the D.D.A.

Are the Disability Standards on education consistent with the principles set out by the Full Federal Court in Catholic Education Office v Clarke?

Yes. The Standards confirm rather than creating duties of reasonable adjustment.