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Productivity Commission review of the Disability Discrimination Act: Initial submission: Human Rights and Equal Opportunity Commission

Note: Printer friendly versions of this and other submissions are also available together with transcripts of hearings and other relevant documents on the Productivity Commission site

Contents:

Introduction
Definition of disability
Areas where discrimination is unlawful
Exemptions
Definitions of discrimination
Unjustifiable hardship
Definition of reasonable adjustment
Costs of reasonable adjustment
Unjustifiable hardship in sport and Commonwealth programs
Harassment
Requests for information
Objects of the DDA
Effectiveness in eliminating discrimination
Effectiveness in ensuring equality before the law
Effectiveness in promoting recognition and acceptance
Potential economic and competition effects
Alternative ways to meet objectives
Relationship with other Commonwealth legislation
Effect of overlap with State/Territory discrimination laws
Co-operative arrangements with States/Territories
Omnibus discrimination legislation
Prescribed laws
Other matters potentially subject to regulation
Disability Standards
Guidelines and advisory notes
Frequently asked questions material
Action plans
Industry self regulation
Complaints
HREOC education function
Policy functions
Use of inquiries
Future challenges
Improvement in overall operation of DDA
Approaches from other jurisdictions
Employment
Education
Public transport
Access to premises
Goods, services and facilities
Accommodation, clubs, land and sport
Commonwealth laws and programs

Introduction

This submission is being made by the Human Rights and Equal Opportunity Commission (HREOC) as an initial contribution to the Productivity Commission's inquiry on the Disability Discrimination Act 1992 ("DDA"). This is intended as an initial submission only. HREOC anticipates contributing further information during the course of the inquiry, including in response to any specific requests by the Productivity Commission.

Some views expressed here may also be further developed or modified in the light of other views and information received during the course of the inquiry. While HREOC as the lead agency for implementation of the DDA clearly has particular experience to contribute we hope and expect to benefit from perspectives and information in other submissions and from consideration of the issues by the Productivity Commission, further to the useful Issues Paper already released.

HREOC considers this inquiry a valuable opportunity to assess the effectiveness of the DDA and examine possibilities for achieving the objects of the DDA more effectively.

HREOC's overall assessment is that

Further preliminary comments are offered as follows in response to questions posed by the Productivity Commission's Issues Paper.

What have been the effects of the DDA's broad definition of disability?

HREOC views the current broad definition of disability in the DDA as having worked well overall. This definition has largely avoided resources being dissipated in disputes about who is and is not a person with a disability for the purposes of the legislation, and problems of arbitrary exclusion of people with some disabilities from protection on definitional grounds. Experience under the DDA in this respect compares favourably with United States experience, where the test that a person must be "substantially limited in a major life activity" to be covered by the Americans with Disabilities Act has been the subject of extensive litigation. This test was discussed by the inaugural Disability Discrimination Commissioner in her "Foundations" report at the end of the first 5 years operation of the DDA:

"The definition of disability in the United States act, with its emphasis on whether a person is "limited in a major life activity" was seen as a model to be avoided rather than followed. Experience with the U.S. legislation has, I think, supported our concerns in this area. A large proportion of the pages in the extensive regulatory and guidance materials issued under the Americans with Disabilities Act is taken up with issues of the identification of who is, and is not, a person with a disability. This is not only a misdirection of effort and attention away from the real objective of eliminating discrimination; it suggests that we are talking about a dangerous or a protected species, and could be expected to encourage a reaction from employers and others that the safest thing to do with people with a disability is avoid having to deal with them.

Reasons for a restrictive definition of disability like this include an understandable desire by people who have to live with permanent and major disability to ensure that they are the main beneficiaries of disability discrimination legislation, rather than attention and administrative resources being dissipated in addressing more transitory or trivial conditions. There are also issues of political credibility of legislation if minor ailments are treated as disabilities.

A restrictive definition of disability is nevertheless an ineffective method for dealing with these issues and works against the legislation achieving its objects. One result is that people with a disability, seeking the assistance of anti-discrimination law in asserting their ability and entitlement to participate equally (including with any assistance and accommodation which may be required and to which the law entitles them), may paradoxically find it necessary to argue that their ability to participate is in fact limited by their impairment in order to qualify for the protection of the law.

There have in fact been cases under the United States legislation where persons who clearly did have a disability were denied a remedy for discrimination because they faced exclusion only from a particular job or small class of jobs, and not from the whole activity of employment. This seems astonishingly absurd and unjust: claimants under race or sex discrimination laws are not told that they have no right to redress for discrimination in their chosen field because they can always look for a job somewhere else; and nor should people with a disability be told this."

The United Kingdom's more recent Disability Discrimination Act 1995 adopted a similar definition to that in the United States. This has been identified by the U.K. Disability Rights Commission as presenting major problems, as indicated for example in the following press release (7 May 2003, available on the UK DRC website at http://www.drc-gb.org/newsroom/newsdetails.asp?id=415&section=1:

"A legal loophole which allows employers and businesses to discriminate against people with conditions such as Cancer and Multiple Sclerosis must be closed immediately the Disability Rights Commission said today. Publishing the first major review of current disability discrimination law, the Disability Rights Commission (DRC) is calling on the Government to urgently introduce legislation to cover people with progressive conditions to ensure they are protected against discrimination from the point at which they are diagnosed. Currently the Disability Discrimination Act only provides protection when symptoms develop which make it difficult for someone to carry out daily activities."

HREOC's view remains that the DDA should not be restricted to permanent or substantial disabilities. A disability which is otherwise trivial may nonetheless be the basis for discrimination which is serious in its effects. The broad and inclusive definition has not resulted in a flood of complaints of questionable merit as the issue is whether a person is discriminated against because of the disability. Distinctions between different disabilities based on degrees of "worthiness" would in the context of discrimination legislation lead to arbitrary and unjustifiable consequences.

In its submission to the Australian Law Reform Commission's recent inquiry on protection of human genetic information HREOC supported proposals to confirm that the DDA covers genetic discrimination (although in HREOC's view this is already the case).

Are any elements of the DDA's definition of disability too narrow or, conversely, too broad?

HREOC is not aware of any instances where a person who should be considered as having a disability has been excluded from protection by the DDA because of restrictions in the definition of disability.

Issues about whether a person has a disability have more commonly concerned the need for evidence to establish that the person actually has the disability stated (in particular in relation to Attention Deficit / Hyperactivity Disorder, chemical sensitivities, back injuries, and Chronic Fatigue Syndrome) rather than a dispute about whether the disability, if established, would fit within the definition. This need for evidence would arise under most definitions of disability rather than being an issue resulting particularly from the DDA's broad definition.

There have however been some areas where there has been argument about whether a particular condition fits within the definition of disability for the purposes of the DDA:

Substance use and addiction

Some confusion and controversy on these issues has arisen in response to decisions by HREOC and the Federal Court in Marsden v Coffs Harbour and District Ex-Servicemen & Women's Memorial Club Ltd.

The Federal Court's decision is available at www.austlii.edu.au/au/cases/cth/federal_ct/2000/1619.html, and the HREOC decision at www.humanrights.gov.au/disability_rights/decisions/comdec/1999/DD000110.htm .

The HREOC member sitting in that case took the view that dependence on methadone was not a disability where the methadone was itself being administered to relieve the symptoms of heroin addiction. Further, he found that the complainant had been excluded from the premises for reportedly being intoxicated, rather than because of his methadone dependence per se. The Federal Court however rejected the view that the complainant's dependency on prescribed medication could not itself be a disorder covered as a disability by the DDA. The Court also thought that it would have been open to find that because of the complainant's drug dependency the club had been more ready to regard him as being intoxicated than it may have been regarding a person without this dependency, so that discrimination may have occurred on the basis of a disability rather than on the basis of intoxication.

This complaint was settled by the parties without a final decision being made on whether on the facts disability discrimination had occurred. However, the case led to a number of public comments expressing the views that employers and others had been put in an unacceptable position, including that intoxication in the workplace would not be able to be dealt with.

HREOC's view, consistent with the Federal Court decision in Marsden, is that addiction (whether to legal or illegal substances) is properly regarded as covered by the definition of disability for the purposes of the DDA. Various addictive or dependency disorders are recognised in the standard psychiatric diagnostic protocols, the International Classification of Disorders and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. Although HREOC does not take the medical opinion embodied in these texts as decisive of the meaning of "disorder" for the purposes of the DDA or of the applicability of this term in individual circumstances, these opinions are clearly relevant to establishing that a person has a disability.

This should not be regarded as bestowing any rights in itself (including any right to engage in illegal behaviour), since a person with a disability of any kind still needs to be able to point to discrimination on the basis of that disability and the concept of discrimination remains limited by provisions including those relating to inherent requirements of the job, unjustifiable hardship and the "reasonableness" element of indirect discrimination.

Thus for example acceptance of alcohol addiction as being a disability should not be regarded as involving acceptance of any right to be intoxicated at work, since in most cases this would not be expected to be consistent with the inherent requirements of the job.

In apparent response to the Marsden decision, the NSW AntiDiscrimination Act 1977 was amended to state that discrimination in relation to employment was not unlawful if "the disability relates to the person's addiction to a prohibited drug, and the person is actually addicted to a prohibited drug at the time of the discrimination." However, methadone is specifically excluded from the definition of a prohibited drug for this purpose. This exclusion may reflect a recognition of the public health interest in ensuring that an addict who is having their condition treated should not face discrimination in work because of that treatment, so long as he or she can perform legitimate work requirements.

HREOC does not favour a similar amendment to the DDA, and considers that a better approach remains that taken by the DDA in focusing on what is discrimination (including issues of reasonableness and unjustifiable hardship) rather than an exclusionary approach defining what are "acceptable" disabilities. If there is a need for clearer statement of the rights of employers or other parties to deal with issues of intoxication or substance use, the NSW amendment dealing only with addiction to prohibited substances does not appear an effective approach since these issues may arise whether or not a person is an addict and whether or not the substance concerned is illegal.

Transsexualism

Representations have been made to HREOC on several occasions seeking a statement that the DDA protects people who are transsexual, on the basis that they have a psychological disorder of "gender dysphoria". HREOC has not been prepared to accept this labelling, and does not regard transsexual people or any particular transsexual person as necessarily having a psychiatric or psychological disorder. Classification of transsexualism as a disorder by some medical professionals is not in HREOC's view conclusive - noting that homosexuality was long classified as a disorder by the American Psychiatric Association.

HREOC regards other legislation, where available and applicable, as providing more appropriate coverage of discrimination on the basis of transsexualism.

Obesity

Cases under other anti-discrimination laws have been decided both for and against obesity being a disability. HREOC does not regard this as identifying a need for clarifying amendments to the definition of disability but as indicating that issues in this area may require case by case consideration.

The definition of disability under the DDA refers to loss of functioning of a person's body or part of the body. In HREOC's view a person whose weight actually impairs his or her functioning is covered. If a person is not in fact impaired in functioning, but is treated as impaired, this would also be covered since the DDA also applies to imputed disability.

Of course, the more clearly a person is genuinely impaired by his or her weight, the more likely it is that the respondent to a complaint may have a valid defence, in particular in terms of a person's capacity to perform the inherent requirements of employment. On the other side of the coin, people who are within "normal" weight range or are marginally overweight but do not have a disability as most people would understand it are more certain of winning a claim of discrimination if they are in fact subjected to discrimination because of their weight.

It may appear a paradox that people whose weight has more disabling consequences may receive less protection than people whose weight is less disabling. However, the DDA is not benefits-based legislation which treats people as more deserving and confers more rights on them the more serious their disability is. Rather, discrimination is more likely to be unlawful the more irrational or unreasonable it is.

Would an alternative definition of disability be appropriate?

Although HREOC will await submissions with interest, our current view is that the present definition of disability should be maintained.

Are the definitions of disability used for different purposes appropriate? Have there been any unintended effects of using different definitions of disability for different purposes? If so, how should they be addressed?

HREOC's view is that it is not necessarily inappropriate for definitions of disability to be different for the purposes of different legislative regimes. For example, taxi subsidy schemes and disability parking permits need not extend to all people with a disability as defined in the DDA, since not all forms of disability involve the same issues of mobility and transport disadvantage.

As noted earlier in this submission, the DDA appropriately applies to provide people with trivial or even wrongly imputed disabilities with redress if they are discriminated against, rather than being restricted to permanent or substantial disabilities. By contrast, it appears more legitimate for legislation giving access to benefits to set priorities, eligibility criteria or levels of entitlement by reference to issues of the severity of impact of a person's disability.

However, if there are excessively restrictive definitions of disability for the purposes of some benefits this may lead to discrimination - for example, if only some of those students who require targeted assistance to achieve equal educational opportunity are eligible for that assistance.

It should also be noted that in many cases a lack of necessary assistance or support is likely to be the result of inadequate resources made available rather than being because of purely legal issues of restrictive definitions.

HREOC awaits with interest views and information which may emerge during this inquiry on the impact of eligibility for and forms of income support on incentives and opportunities in employment as well as in education for people with disabilities.

HREOC has not done any work on the merits of different models of income support for people with disabilities - our efforts have been concentrated rather on issues covered more directly by the DDA. We are aware though of evidence that extra costs of workforce participation do present barriers to employment opportunity for people with disabilities and we would support examination of income support measures which address these costs.

Do you have any comments on the list of areas in which discrimination is unlawful, or on the specific exemptions? For example, should any areas or exemptions be added or removed? What problems have arisen in the practical application of the exemption provisions? For example, what amounts to "reasonable" grounds for discrimination in the provision of superannuation and insurance?

Areas where discrimination is unlawful:

Occupational relationships

HREOC would support consideration of additional coverage of discrimination in occupational relationships. At present the DDA covers some but not all such relationships.

For example, it appears anomalous that while partnerships are covered expressly, discrimination in entering franchise arrangements has only been able to be dealt with on the basis that a franchise arrangement may constitute a "club" as defined in the DDA - "an association (whether incorporated or unincorporated) of persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that provides and maintains its facilities, in whole or in part, from the funds of the association".

When the DDA was passed, discrimination regarding voluntary work was not included because of doubts regarding the Commonwealth's constitutional capacity to legislate in this area. In the course of more recent consideration of age discrimination legislation, HREOC has recommended that this issue be reconsidered, noting that some State legislation does cover discrimination in voluntary work. If it is determined that the Commonwealth can legislate regarding age discrimination in voluntary work it would clearly be anomalous not to provide the same coverage regarding disability discrimination.

Accessibility and usability of products:

The DDA covers discrimination in provision of goods (as well as services and facilities). It does not, however, contain any requirements for even minor modifications to be made to the goods themselves to ensure that they are accessible to or usable by people with a disability (including by following universal design principles to make products more readily usable to consumers more broadly).

This may lead to some anomalies in coverage.

In particular, obligations appear to vary depending on whether products are hired (which constitutes a service so that reasonable adjustments may be required) or sold (in which case adjustments to achieve accessibility in the goods sold may not be required). For example, a library would be regarded as providing a service and would have obligations to provide access to information in a range of formats (where this can be done without unjustifiable hardship), but a bookshop which sells books as goods may well not have the same obligation.

The accessibility of telecommunications equipment provided as part of a telecommunications service is covered by the DDA, but does not appear to be covered if the same equipment is sold separately from provision of a telecommunications service. This contrasts with the position in the United States where uniform obligations apply to telecommunications equipment and service provides.

These differences in obligations between different classes of business may lead to failures in the legislation having its intended effect, and/or in transaction costs being incurred through complaint processes being required to determine responsibilities not explicitly provided for by the legislation.

For example, while a video hire store considered as a provider of services would have obligations to make captioned videos and DVDs available to the extent this can be done without unjustifiable hardship, there is no clear statement in the DDA of the responsibilities of makers of videos or DVDs to provide captioned versions.

Similarly, in current negotiations with the broadcast television industry to increase the proportion of their programs which are captioned, it has been noted that the lack of requirements for televisions and related equipment to be sold with caption decoding capacity reduces the effectiveness of measures which broadcasters may take as service providers.

Not all accessibility issues regarding products concern the physical design and features of the product. There are also issues regarding the accessibility of information supplied on how to use products, which in many cases appear to be readily able to be remedied. While it is possible that the DDA applies to these issues already (since the form in which information is provided with products maybe seen as part of the terms and conditions on which goods are sold rather than as a feature of the goods themselves), this coverage is not clearly stated.

Extension of the DDA to apply to the accessibility of goods would clearly present significant - including whether such a requirement should be at the same general level as existing anti-discrimination provisions, or should be approached through more specific standards or codes for particular product categories - but may merit further consideration.

Exemptions

Special measures

DDA section 45 provides that it is not unlawful to do an act that is reasonably intended to ensure that persons who have a disability have equal opportunities with other persons; or afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities, or grants, benefits or programs to meet their special needs.

The purpose of similar provisions in other legislation (in particular regarding race and sex discrimination) has generally been to protect beneficial measures for disadvantaged groups from being struck down through complaints by people outside those groups.

There is not the same need for the special measures section in the DDA to perform this role - since even without reference to this provision it is not possible for a person to make a valid claim of being discriminated against because he or she does not have a disability or does not have the particular disability identified as necessary to secure an opportunity or benefit.

Sex and race discrimination legislation are for the most part drafted in neutral terms to deal equally with discrimination against members of either gender or of any race. The DDA is drafted to deal only with discrimination against people who have a disability (or are associates of people with a disability or are imputed as having, had in the past or may have in the future a disability). It does not attempt to deal with discrimination which occurs because a person lacks these characteristics.

This does not mean the special measures section has no work to do in the DDA.

The special measures section may appropriately apply to protect requests for information which are necessary or reasonable to establish eligibility for a benefit or opportunity directed to people with a disability. A person might object to this information being requested and in the absence of the special measures section might seek to complain of this request as being discriminatory. In particular this section may have a role in ensuring that employers are able to ask questions reasonably intended to identify needs for workplace adjustments to ensure equal employment opportunity (while not permitting questions for discriminatory purposes or intended to cause offence or embarrassment).

Some measures to ensure access for people with disabilities also involve balancing competing needs of people with different disabilities. For example, tactile ground surface indicators which assist blind and vision impaired people in finding direction and avoiding hazards (such as knowing when a footpath reaches a road crossing) present a barrier to smooth passage for people using wheelchairs and some other people with mobility disabilities; but a lack of such indicators may (in the absence of other appropriate cues) present a barrier to blind and vision impaired people being able to use the area safely.

In such a situation, authorities with responsibilities under the legislation require some degree of protection rather than being damned whatever they do or do not do. The special measures section provides that protection so long as decisions are reasonably intended as beneficial. In HREOC's view the "reasonably intended" test is appropriate for this purpose since it gives protection to actions taken for beneficial purposes while requiring some reasonable basis for these actions (and thus not applying for example to actions which might be described as well intentioned but which unreasonably disregard relevant expertise or the wishes of a person with a disability).

However, HREOC has concerns regarding wider interpretations which have been given to the concept of special measures in some decisions under other laws dealing with disability discrimination. In Re ACT Health & Community Care Service and Discrimination Commissioner and Alexander Vella and others (available at www.austlii.edu.au/cgi-bin/disp.pl/au/cases/act/ACTAAT/1998/286.html ) the ACT Administrative Appeals Tribunal decided that section 27 of the ACT Discrimination Act, the equivalent of DDA section 45, meant that "nothing done in the course of a program designed to meet the special needs of any disadvantaged persons can be the subject of a complaint of discrimination under the Act by any person, including a member of the class of disadvantaged persons that the program is intended to benefit ...".

The section is not confined to blocking claims of discrimination by those outside the scope of the program; the opening words of section 27 block a claim by any person of discrimination arising from an act done in the course of administering the program".

HREOC does not consider this decision provides an appropriate precedent to follow, or that it represents the effect of DDA section 45.

It appears that the ACT Administrative Appeals Tribunal was driven to this wider interpretation by concerns arising from the unusual definition of discrimination in the ACT legislation, which requires only that treatment be "unfavourable" rather than "less favourable" than would be afforded to people without a disability. The case concerned failure to give way to resident objections to a particular new resident. The tribunal thought that because the definition of discrimination failed to require any comparison with what would have happened if people with a disability were not involved, discrimination would be established unless the special measures section applied. The tribunal appears to have been concerned that unless a wide interpretation was given to the special measures provision, the tribunal itself would in effect become responsible for the management of disability specific facilities in the ACT, which as the tribunal noted could not have been the intention of the legislature.

The definition of discrimination in the DDA is not the same as that in the ACT legislation and does not involve the same need to adopt an excessively broad interpretation of special measures in order to avoid absurd results.

The appropriate test under the DDA in HREOC's view (in accordance with both the objects and the wording of the legislation) is whether the action complained of was reasonably intended as beneficial, not whether it occurred in the administration of a program or facility intended overall for beneficial purposes. The wider interpretation applied under the ACT legislation in the Vella case would itself appear to imply absurd results, such as that authorities responsible for administering disability benefits are free to operate from inaccessible premises and provide information only in inaccessible formats.

At this point HREOC does not consider that changes to the drafting of the special measures exception in the DDA are required to avoid excessively broad interpretations, but submissions on this issue are awaited with interest.

Superannuation and insurance

As noted by the Issues Paper, in permitting insurers to make distinctions based on disability, but only where this is reasonable, the DDA leaves much open to interpretation.

To assist in giving this provision more definite meaning, guidelines on the application of the Disability Discrimination Act to insurance and superannuation were developed during 1997 in cooperation with relevant industry associations and in consultation with disability community representatives. These guidelines were adopted by HREOC in March 1998 and are available on the HREOC website.

HREOC would welcome comments during the course of this inquiry on needs and possibilities for further guidance or definition in this area.

In relation to superannuation, there has been a small number of complaints, in most cases regarding restrictive conditions on entry for people with a disability or medical condition.

Consultations have suggested that there may be a need for research on the effectiveness of superannuation for people with disabilities given that disability may involve disruptions in working patterns as well as lower than average income. In addition, there are issues of the effect of past, or continuing, discrimination (both in access to employment and in access to superannuation) on the adequacy of superannuation in providing for retirement income for people with a disability. However, HREOC has not been in a position to conduct such research to this point.

Compliance with other laws

When the DDA was introduced, a general exemption was included for actions in direct compliance with any other law. This general exemption expired after three years, the clear intention being to provide time for laws to be reviewed and either have amendments made to remove discriminatory effects, or have laws prescribed under the DDA so that actions in compliance with these laws would remain lawful.

The Federal Attorney-General did request State governments, and other Federal Ministers, to review laws within their responsibility for discriminatory provisions and make appropriate amendments and requests for prescription.

It is not clear whether all laws which might require prescription have in fact been prescribed (noting that as pointed out in the Issues Paper laws of some jurisdictions have not been prescribed although they are equivalent to prescribed laws of other jurisdictions).

HREOC considers the prescribed laws mechanism an appropriate means for determining when the DDA should give way to other laws, noting that this mechanism provides for scrutiny through provision for parliamentary disallowance as well as through consultation between governments.

However, the prescribed laws provision is clearly not the only mechanism which should be considered for determining the relationship between the DDA and other laws. This is indicated for example by extensive work currently under way to develop a disability standard on access to premises, where the intention is in effect to state that compliance with building laws giving effect to an upgraded Building Code of Australia will be sufficient for DDA compliance.

One reason that the more simple method of prescription of these laws would not be sufficient for this purpose is that (in keeping with the views of members of the High Court in Waters v Public Transport Corporation, available at www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/173clr349.html) the concept of direct compliance only appears to apply to protect actions directly required by another law: it does not apply to actions which are consistent with but not directly required by such a law.

For example if another law permits a ramp slope of 1 in 14, a refusal to implement a yet more accommodating slope of 1 in 20 would be consistent with, but not directly required by, that other law, and thus would remain open to potential challenge under the DDA even if the other law was a prescribed law.

This limited effect of prescription of other laws appears appropriate where another law imposes a clearly discriminatory result - so that a decision nonetheless to permit acts complying with that law is confined to the narrowest possible extent. This approach also avoids removing the protection of the DDA against discriminatory means of implementing another law where non-discriminatory means are equally available.

However, where the purpose of the other law (as with access provisions in building law for example) is to provide a code of how to achieve non-discriminatory results (in the same way as a standard within the DDA itself might do), protection of actions complying with that code may be justifiable whether or not they are directly required.

One means to achieve this would be simple removal of the word "direct" from the DDA reference to direct compliance. Consideration should also be given to whether prescription or other methods of recognition should also be available regarding codes or standards which are not contained in other laws.

Modified wage exception

HREOC expects that the Inquiry will receive important and varying perspectives from industry, government and disability community organisations regarding issues in the area covered by this exception.

Section 47(1)(c) of the DDA exempts actions in direct compliance with

to the extent that the order, award or agreement has specific provisions relating to the payment of rates of salary or wages to persons, where:

This provision in effect accepts that some people will have lower productivity because of their disability, and that to promote their having employment it is preferable to permit payment on a wage scale modified to reflect lower productive capacity, although this is a departure from principles of non-discrimination at least if and to the extent that other workers are not similarly subject to productivity assessment.

As a safeguard this provision only applies where modified wages are contained in an award or have been registered in a certified agreement or workplace agreement.

Issues likely to be raised by submissions in the area of modified wages include:

There is no specification in DDA section 47(1)c) of how capacity should be assessed, or of how the process of wage modification by reference to capacity should work, although legally it seems clear that wages being "determined by reference to capacity" requires a reasonable and objective relationship. The development and application of an appropriate wage assessment tool clearly presents critical issues for the appropriate operation of this exception.

In its national safety net decision on 6 May, the Australian Industrial Relations Commission decided that a forum should be convened to discuss issues of the application of enterprise bargaining where employees with intellectual disabilities may have limited capacity to understand and participate effectively in the process, and how to ensure that awards appropriately reflect the supported wage system for people with disabilities. It is not yet known when that forum will be convened.

Infectious diseases

Section 48 of the DDA protects measures which are reasonably necessary for the protection of public health where a person's disability is an infectious disease.

HREOC's present view is that this exception has operated appropriately. It requires that public health measures be "reasonably necessary" so as to require some objective justification, but does not impose a test of absolute necessity which would fully substitute judgment by HREOC or the courts for that of public health authorities in this area.

This exception is restricted to infectious diseases and public health issues.

At this point the only other public health issues HREOC is aware of which may require legislative or regulatory action are in relation to assistance animals, including

HREOC hopes to issue a discussion paper shortly on possible needs and options for legislative and/or regulatory action in this area.

Issues of the relationship between discrimination law and occupational health and safety regimes are addressed separately in the Issues Paper and in this submission.

Charities

The charities exemption in the DDA has on occasion been misunderstood as meaning that charities are entirely exempt from the DDA. The charities exemption is not a general exemption for charitable organisations and in particular does not give charities general permission to discriminate as employers.

In HREOC's view this exception simply confirms what would have been the case under the DDA without such an exception: that it is lawful to establish and administer charitable instruments for the benefit of people with a particular disability (e.g. that the Royal Blind Societies can operate without having to extend their services to people who are not blind). At this point however although there appears no substantive need for this exemption, HREOC is not aware of this provision causing sufficient problems to justify its removal.

Telecommunications exemption

This exemption, regarding payphones, is of no continuing relevance as it expired in 1996. However, it would be useful in the course of this Inquiry to give some consideration to the appropriate relationship between the DDA and the telecommunications regulatory regime.

Currently, the Telecommunications Act includes disability access issues in the definition of the standard telephone service - but does not define relevant obligations other than by reference to obligations under the DDA. There is scope for development of more detailed telecommunications accessibility standards through the co-regulation provisions of the Telecommunications Act but to this point progress in this process has been more limited and if anything slower than processes of development of disability standards under the DDA. Another obvious limitation in this area is that Telecommunications Act obligations in relation to the standard telephone service do not apply to the mobile services which are an increasingly important part of actual telecommunications usage in Australia. It does not appear optimal for coverage of these services to be left to the general provisions of the DDA while other telecommunications services are covered by a more specialised regulatory regime.

HREOC will be issuing a discussion paper on telecommunications issues shortly but hopes that submissions from consumer and industry bodies will also be made on telecommunications issues. In view of the social and economic importance of these issues and questions of appropriate relationships between regulatory regimes in this area HREOC also encourages the Productivity Commission actively to seek out views and information in this area.

Pensions and allowances

Section 51 of the DDA states that any discriminatory provisions in the Social Security Act and a range of other benefits legislation are exempt.

The necessity for and effect of this exemption is not clear, since in any event the DDA only makes discrimination unlawful in the administration of Commonwealth laws and programs, rather than the terms of laws or the extent of programs. At this point HREOC is not aware of any pressing reason to review this exemption.

This is distinct however from the need (which HREOC endorses) for continuing review of social security support for people with disabilities to ensure that the right to an adequate standards of living is ensured and that income support arrangements facilitate rather than presenting barriers or disincentives to participation in employment and education.

Migration exemption

HREOC understands the view of this and previous governments that it is government's role and not that of the DDA to decide who comes to Australia. It is also true that there are other review mechanisms specifically established for migration and refugee decisions. But we remain concerned that the very wide immigration exception in the DDA leaves people with disabilities and their families without sufficient protection against unreasonable decisions to refuse entry to Australia because of disability.

In particular there does not seem to be sufficient protection against incorrect judgments that a person with a disability will be unable to contribute economically or otherwise to Australia and will impose an economic burden.

If these decisions are to remain exempt from the DDA HREOC would like to see improved criteria and procedures within immigration law in relation to admission of people with disabilities.

Combat duties and peacekeeping

HREOC considers that the inherent requirements exception in DDA section 15 is sufficient to deal with issues in this area, without additional special purpose exceptions for combat duties and peacekeeping.

Temporary exemptions

HREOC views the temporary exemption power as an important tool to promote equality where organisations are seeking some protection from complaints while acting to overcome barriers to access. HREOC has not been prepared to grant an exemption to organisations who simply want to avoid doing anything to comply with the DDA, as in our view the power to grant exemptions is required to be exercised consistently with the objects of the DDA

The number of exemption applications to date has been quite small, however, except in the public transport area, where exemptions have been a critical part of the progress that has been achieved. Exemptions have been granted to a number of public transport providers and authorities conditional on development and implementation of a plan to achieve improved access over time.

The limited take up of the exemption mechanism so far may reflect a concern that applying for an exemption could give a negative impression, even when the intention is not to escape responsibility for compliance, but actually to deliver better outcomes in a planned way. HREOC is aware of, although not agreeing with, views in some parts of the disability community that exemptions (in general and as granted by HREOC in particular cases) undermine the effectiveness of the DDA.

It may be that a positive power to certify compliance plans or codes as complying with the DDA would have wider effect.

Do you have any comments on the definitions of direct and indirect discrimination? How could they be improved?

A number of reasons can be identified for the approach taken of defining discrimination and related key concepts in broad and general rather than specific terms.

Limitations of available models: A similarly general approach was contained in pre-existing State and Territory equal opportunity legislation as well as the federal Sex Discrimination Act, which can be seen to have served as drafting models in many respects.

Difficulty of identifying appropriate more specific requirements: This difficulty is illustrated by subsequent experience in seeking to develop Disability Standards under the DDA regarding employment.

Provision for subsequent development of Disability Standards: The capacity to define rights and obligations more specifically by means of regulatory standards where necessary is clearly an important part of the scheme of the DDA. Although the DDA does not positively require such standards to be made or set a timetable for their making, there is considerably more emphasis on these standards in the terms and effect of the legislation than a general regulation making power.

Since the passage of the DDA, the SDA definition of indirect discrimination has been revised in the interests of simpler interpretation and operation - that is, with the intention of focusing attention on whether a condition or requirement unreasonably disadvantages one gender, and with the hope of moving analysis away from complex debates about appropriate formulas for determining whether a substantially greater proportion of one gender than another comply with a condition or requirement.

These issues of appropriate methods for comparison have not presented the same difficulties in applying the DDA as in applying sex discrimination law. There is no sophisticated mathematics required to determine for example that a requirement to enter a building or vehicle by stairs will disadvantage people who use a wheelchair compared to people who do not.

Despite this, simplification of the drafting of the DDA indirect discrimination provision along the lines of the revised SDA provision may assist people with rights and responsibilities under the legislation in understanding more readily what indirect discrimination involves.

As with indirect discrimination, the definition of direct discrimination in section 5 of the DDA was essentially borrowed from that in the SDA.

However, it was also recognized that (perhaps more often than for the grounds of gender or race) disability can make a difference which needs to be accommodated, rather than uniform treatment being sufficient to ensure equality.

Discrimination laws generally deal with discriminatory effects of uniform treatment through the concept of indirect discrimination, but in the DDA an attempt (which may not have been as successful as hoped) was also made to incorporate the need to make some adjustments for disability into the definition of direct discrimination, through the inclusion of subsection 5(2). Subsection 1 defines direct discrimination as less favourable treatment in circumstances which are the same or not materially different. Subsection 2 states that circumstances are not materially different "because of the fact that different accommodation or services may be required by the person with a disability".

Some uncertainty remains however about how the concept of direct discrimination applies to differences which arise because of disability.

These issues and their consideration by HREOC as a tribunal and by the courts are discussed in a recent report issued by HREOC, Change and Continuity: Review of Federal Unlawful Discrimination Legislation. This review is available at http://www.humanrights.gov.au/legal/review/index.html. The Inquiry and persons making submissions may find reference to this report useful. In summary, issues where there is uncertainty in this area include:

These issues are presently before the High Court of Australia in Purvis v State of NSW.

Most (but not all) decisions of HREOC as a tribunal have taken the approach that less favourable treatment because of behaviour which is part of or a manifestation of a disability is less favourable treatment because of the disability, and thus that the concept of direct discrimination is applicable. The Federal Court and Full Court in the Purvis case have taken the contrary view.

The view that direct discrimination is inapplicable in this situation would not leave people with disabilities which affect behaviour completely unprotected by the DDA, since the indirect discrimination provision would continue to apply to unreasonable requirements in this and other areas.

It is also understandable that educational institutions and other potential respondents should wish to maintain and apply reasonable rules regarding behaviour and that they would accordingly be concerned if the concept of direct discrimination does apply to different treatment because of different behaviour at least to the extent that there are gaps in available defences including those based on unjustifiable hardship.

However, to in effect restrict coverage by the DDA of disabilities affecting behaviour to indirect discrimination only would also present some concerns, in view of the complexity of the indirect discrimination section.

There are also some possible gaps in coverage by the indirect discrimination section.

In particular, as the result of an apparent oversight in drafting, proposed acts of indirect discrimination are not expressly covered in the DDA (although they are covered by the SDA).

Review of the definition of discrimination may be required in the light of the decision of the High Court in Purvis, whichever way the result in the particular case goes.

The desirability of provisions addressing the duty to make reasonable adjustments more expressly, rather than this duty and its extent being a matter of implication from subsection 5(2) and section 6, is addressed later in this submission.

The definition of discrimination also requires review in relation to associates (such as friends or carers) of people with a disability.

The substantive provisions of the DDA cover discrimination against associates. However, the definitions of discrimination do not adequately reflect this, making the process of determining how these definitions apply in cases involving associates uncertain and potentially complex.

DDA section 5 currently fails to refer to associates in defining what discrimination means even though associates are covered in the substantive provisions. Fairly simple amendments to this provision would suffice to include associates expressly rather than having to work out some sort of best fit as at present.

DDA section 6 also fails to refer to associates. Redrafting the existing section 6 to include associates seems to be more complicated and this may provide a reason instead to adopt the amended SDA drafting for indirect discrimination.

How has the concept of unjustifiable hardship enhanced or reduced the effectiveness of the DDA? Does the DDA provide sufficient guidance on the meaning of unjustifiable hardship? If not, what additional guidance would help?

The inclusion of defences of unjustifiable hardship in most of the substantive provisions of the DDA may be seen as reducing what would otherwise be the effect of the legislation, and as treating disability discrimination as more acceptable than discrimination on grounds of race or sex, legislation concerning which does not contain an unjustifiable hardship provision.

HREOC is aware of some disability community concern that unjustifiable hardship provides an open invitation for organizations to avoid their responsibilities under the DDA. Submissions to the inquiry may be expected to provide useful elaboration of these concerns.

However, HREOC considers that unjustifiable hardship or an equivalent concept is appropriate to include in the DDA as a means of balancing the rights of other parties with measures to achieve the rights of people with disabilities.

While many adjustments to accommodate the requirements of people with disabilities may be simple and inexpensive to make (and may offer net economic benefits even to the provider because of benefits for other customers, employees etc), it has to be recognized that some involve more significant expense and difficulty. Some adjustments to existing premises to provide fully equal access may be financially beyond the means of a small business for example, or prevented by spatial or technical constraints.

Clearly, how far unjustifiable hardship operates in practice to limit progress towards achievement of the objectives of the DDA will be affected by the presence or absence of public sector support for organizations to take measures to increase accessibility and inclusion.

HREOC would support consideration in the context of this inquiry of appropriate incentives for increased accessibility and inclusion, whether at federal level (in particular taxation incentives, possibly comparable to research and development concessions), state level (including perhaps as part of regional development programs) or local level (through the inclusion of incentives as part of accessible community initiatives).

The concept of unjustifiable hardship does not mean that obligations to take measures to achieve equal access and opportunity for people with a disability are displaced by any expense or difficulty being involved at all. The legislation was intended to place an evidential burden on a respondent to a complaint wishing to claim unjustifiable hardship to demonstrate why hardship would be involved and why it would be unjustifiable for this hardship to be imposed.

(For the purposes of comparison with race and sex discrimination legislation it should be noted that while, like the DDA, these laws require some positive measures to remove discrimination, through the obligation to remove indirect discrimination, the extent of this obligation is similarly limited by the concept of reasonableness.)

Unjustifiable hardship, like reasonableness, is a fairly open ended concept and thus does not give definite answers in advance to whether particular measures are or are not required. This provides a high degree of flexibility in dealing with different circumstances - including in relation to the requirements of a particular person with a disability, and the resources of the particular organization being asked to respond to those requirements.

HREOC sees this flexibility as preferable to a simpler rule, such as one stating that adjustments costing less than $500 are always required and adjustments costing more than this never are.

However, as recognized in the development of disability standards and in HREOC decisions granting temporary exemptions, additional certainty can be beneficial for all parties concerned and promote agreement to and implementation of more extensive measures to achieve equality than might have occurred in a more uncertain legal environment.

The temporary exemption mechanism is not in HREOC's view appropriate for use simply to certify that unjustifiable hardship exists. It is however appropriate for use by service providers, employers or other entities with responsibilities under the DDA who wish to seek recognition of a level of achievement or active measures as (temporarily) sufficient rather than awaiting the result of complaints to determine whether to go further, or to take any action at all, would involve unjustifiable hardship.

The exemption process provides a valuable means for giving more certainty to rights and responsibilities but it is clearly not realistic (from the perspective of HREOC's ability to deal with applications as well as the perspective of organizations which might make applications) to expect that every potential respondent to DDA complaints seeking greater certainty than is provided by the unjustifiable hardship concept will seek and achieve that certainty through the exemption process.

The provision for disability standards under the DDA was intended to provide for achievement of certainty on a wider scale.

The development of standards on access to premises aims to replace the operation of the unjustifiable hardship concept (in relation to those premises covered by the standard, that is new buildings and buildings undergoing significant new work) with a more definite series of obligations and triggers for those obligations.

In the development of accessible public transport standards it was found necessary to retain an unjustifiable hardship defence to accommodate exceptional circumstances, but HREOC expects that the degree of specification provided of obligations and timetables for compliance with those obligations will be recognized by all parties, and if necessary by the courts, as indicating that the application of unjustifiable hardship in this area is now more narrowly confined to exceptional cases.

The drafting of the unjustifiable hardship clause in these standards was also intended to provide a list of factors more specifically adapted to public transport issues than the general unjustifiable hardship clause in the DDA itself. The fact that the list of factors provided is longer in the standards than in the DDA does not, however, indicate that more grounds for finding unjustifiable hardship have been added, since the shorter list in the DDA also indicates that all relevant circumstances are to be taken into account and thus would include the factors listed in the standards.

Should reasonable adjustment be defined in the DDA? If so, how?

HREOC supports clearer provision being made within, and under, the DDA on the existence and effect of the duty to make reasonable adjustments.

This has been a major objective in each of the disability standards development processes to date but would also be useful to incorporate into the DDA itself.

The accessible public transport standards attempt to specify as far as possible results to be achieved and timetables for achieving them in place of a general duty not to impose unreasonable conditions on public transport access. The objective of the access to premises standards development process is similar. In the areas of education and employment, it was recognized in developing draft standards that for these topics it would be too difficult to give the same degree of specification of results representing reasonable adjustments, but that some added degree of detail could be given to principles to be applied.

This experience may indicate that rather than a single additional provision requiring reasonable adjustment to be added to the definition of discrimination it might be appropriate to consider an additional provision in each substantive area setting out positive duties which might vary in their wording and extent according to the subject matter.

The draft disability standards on employment would have defined reasonable, or "appropriate", adjustments in the employment context as follows:

"Appropriate adjustments are workplace adjustments that do not cause unjustifiable hardship and are made for the following purposes:

You must make appropriate adjustments for an employee as soon as practicable if:

This does not mean that you can refuse to employ, or can dismiss, a person with a disability just because an appropriate adjustment cannot be made immediately.

You will be taken to be aware that an employee requires an adjustment if it would be reasonable to expect you as an employer to be aware. What is reasonable will depend on the circumstances."

This draft was not proceeded with due to lack of consensus support for adoption as disability standards having regulatory effect, but was prepared by HREOC on the basis that it reflected and more clearly explained, the existing effect of the DDA.

Current draft education standards which are anticipated to be released in mid 2003 with an accompanying Regulation Impact Statement contain reasonable adjustment provisions with slightly different wording but to similar effect, including the use of the concept of unjustifiable hardship to define the limit of required adjustments.

What are the costs of reasonable adjustments? Who currently bears these costs? What is their impact, if any, on competition? Who should bear them and why?

HREOC is not aware of any detailed Australian data on costs of reasonable adjustments, and awaits input to this Inquiry on this issue with interest. Some data may be available from public sector employment settings. An obvious potential limitation of such data however may be that adjustments which are simple and inexpensive or costless to make may be made without even being identified as being reasonable adjustments.

Recent UK survey data on costs and benefits of reasonable adjustments in service provision are summarized at
http://www.dwp.gov.uk/mediacentre/pressreleases/2002/jun/asd2806.htm and indicate that the majority of businesses which had made adjustments found the benefits had outweighed costs.

There are limited government programs to support adjustments to accommodate people with disabilities at present, which may be expected to be detailed in other submissions.

Commonwealth funding support (of up to $5000, HREOC understands recently increased to $10,000) is provided for adjustments to facilitate initial employment of Disability Support Payment recipients. There is no equivalent payment (or tax offset) available however to facilitate subsequent career development, or the employment of people who have a disability but are not DSP recipients.

Current measures through the Supported Wage System are restricted in scope to persons who would otherwise be eligible for Disability Support payments. Financial assistance for adjustment costs applies on a one off basis for initial employment of a person rather than being applicable to subsequent training or other costs arising when a person might be promoted or considered for promotion.

As such, these measures may be seen as targeted at the greatest areas of disadvantage, to the extent possible within modest funding. They pre-date the DDA and clearly do not address the full range of people with a disability or of opportunities and barriers to opportunity covered by the DDA. Expansion of these measures to apply to a greater range of people and of employment opportunities would require addressing a number of issues including

Any decision to expand the Supported Wage System would also require further evaluation of the operation of this system so far. HREOC is not in a position to initiate or conduct such an evaluation.

Substantial public resources are presently being invested in adjustments to public transport systems provided by public authorities. The Queensland government provides incentives to private sector providers of public transport bus services. This Inquiry may assist in identifying whether similar schemes in other jurisdictions would be effective. Similarly, consideration by the Inquiry of the effectiveness of measures by taxi regulators in different jurisdictions to provide incentives for provision of accessible taxi services could be useful. HREOC is able to provide some additional information and contacts in this respect.

Outside of these programs, the costs of adjustments to accommodate disability requirements appear to fall either on particular employers, service providers and others with responsibilities under the DDA and equivalent legislation, or on people with disabilities and their families.

For example HREOC is not aware of any systematic public program to support disability adjustments in private sector provision of education. There is a Commonwealth funded Special Needs Subsidy Scheme for childcare providers to offset additional costs of accommodating children with disabilities but funding of this scheme does not extend to supporting the level of demand which actually exists.

To the extent that adjustment costs fall to people with disabilities, the result may be either to accentuate poverty arising from already lower than average incomes, or else to prevent the adjustment being made and thus prevent effective participation in employment, education or other areas of potential economic and social benefit and contribution.

Clearly there would be complex issues to consider in any expansion of public sector support for disability adjustments by employers or service providers, including ensuring that this did not reward and give potential competitive advantage to organizations which have delayed or avoided providing equitable services and facilities for people with disabilities, at the expense of organisations which have acted earlier or more extensively to ensure access and equity (and comply with the law).

Additional support directly for people with disabilities to offset costs of participation, while also presenting some complexities, do not appear to present the same issues of moral hazard - since in most cases disability is clearly an unsought result of life's lottery rather than the result of economic calculation.

HREOC would be interested to see any information emerging from submissions on effects on competition in the labour market arising from restrictions on participation and skills formation as a result of avoidable limitations on participation by people with disabilities, including costs of adjustments required for equal participation.

In principle, and other things being equal, measures to facilitate increased participation by people with disabilities in the labour market (both in overall terms and in terms of participation in particular occupations) would be expected to have pro-competitive effects through expanding the effective range of suppliers of labour and skills for employers to choose from.

There is some economic literature on labour market segmentation through discrimination as an anti-competitive force. Although most of this work appears to have dealt with racial discrimination and sex discrimination the same principles would appear relevant to disability.

Consideration was given at an early stage of development of draft standards on employment to the possibility of lower or simpler requirements for small business, as compared to the obligations provided through standards for larger enterprises and as compared to the existing provisions of the DDA.

This approach was rejected by parties making submissions, referring to

Office of Regulation Review's Design Principles for Small Business Programs and Regulations notes that small businesses may often be less able to interpret and apply principle and performance based standards and recommends consideration of voluntary prescriptive standards for small business to accompany mandatory principle or performance based standards.

Extended consultation processes to date regarding disability standards in this area have failed to identify prescriptive approaches with any broad support and in HREOC's view have confirmed the difficulty of identifying appropriate prescriptive approaches across differing employment situations.

A more productive approach may be for enterprises or business associations to seek effective "deemed to comply" status for approaches of their own devising on specific issues, through the exemption mechanism under section 55 of the DDA or by other appropriate mechanisms which might be identified and provided for in future.

Why shouldn't unjustifiable hardship apply in the areas of sport and administration of Commonwealth laws and programs?

The second reading speech introducing the Disability Discrimination Bill indicated an intention to apply the concept of unjustifiable hardship as a general limitation on the legislation, although the drafting of substantive provisions did not fully reflect this.

If a defence of unjustifiable hardship were included in the DDA regarding administration of Commonwealth laws and programs, HREOC would expect the practical application of this defence to be more restricted than in other settings even if the legal provision were in the same terms - given the more extensive resources available to the Commonwealth than to some private sector respondents, and the importance of equal participation and access among the public purposes for which Commonwealth programs are established.

How has the prohibition of harassment worked in practice? How could it be improved?

The number of complaints of harassment has been limited. In 2001-2002 for example there were 19 harassment complaints out of 452 total DDA complaints.

One reason for this limited use may be that, as with sexual harassment, there may be particular reluctance for people who have experienced harassment to come forward with complaints. This may indicate that better results would be achieved by increased emphasis on the duties of employers and others to take positive measures to prevent harassment occurring, rather than relying principally on complaints by victims of harassment to provide deterrence and remedy.

Discussions in the development of draft standards on employment also indicated that there may be a need for more definition on what constitutes harassment and on an employer's duties in preventing harassment. The DDA requires but does not define "due diligence" and "reasonable precautions" by employers to prevent harassment by staff or agents. The draft education standards provide significantly more detailed compliance measures in this area than is provided by the DDA. Comments during this Inquiry would be useful on the appropriateness of this provision of the draft standards on education as a model for use in other areas of the DDA.

How has the requests for information provision of the DDA worked in practice? How could it be improved?

There has been very limited experience with this provision in complaints to HREOC. There were no complaints recorded as being made under the requests for information provision in HREOC's Annual Reports for 2000-2001 or 2001-2002 for example.
However, in a number of instances complaints have been made where a person has not disclosed a disability because they do not consider it relevant to their ability to do the job, but has subsequently been dismissed for not answering questions honestly.

These issues were discussed as follows in a Resource Paper which HREOC issued in 1995 to assist consideration of possible disability standards on employment:

"Intrusive requests for personal information in application forms (or at other stages of selection processes) can discourage people with a disability from applying for jobs, from continuing with an application, or from accepting or remaining in a position. Similarly to the impact of questions to women (in particular) about marital status, or concerning intentions about having children, people with a disability may also often be concerned that information requested about disability will be used for discriminatory purposes. These concerns have a substantial basis in the experience of many people with a disability.

Equally, however, it is not in anyone's interests for employers to be denied information needed to determine whether a person can perform inherent job requirements; or to identify and make necessary reasonable adjustments. There may also be other legitimate and necessary reasons for requests for information about disability. If employers are prevented (or believe they are prevented) from getting information to resolve concerns about these issues, the end result may often be that the person with a disability is denied equal opportunity."

This paper pointed out that although section 30 of the DDA is headed "application forms" it also covers other requests for information throughout the employment process. It was noted that this section is complex and does not clearly indicate to employers or applicants what questions are permitted and which questions are not.

HREOC's current website Frequently Asked Questions in this area provide the following advice:

"Can an employer ask questions about a person's disability?

Yes. Discussion, questions and examinations regarding a person's disability and its effects may be legitimate, necessary and desirable in many cases, for example

HREOC considers that discouraging, or unnecessarily restricting, discussion or inquiries regarding a person's disability in these or other legitimate work related respects would be damaging to effective equality of opportunity and thus would be contrary to the objects of the DDA as well as presenting difficulties for employers. HREOC does not interpret the DDA as having this effect.

This does not mean, however, that every disability related inquiry should be accepted as permitted or desirable. Inappropriate questions or examinations in relation to disability may lead to, or actually constitute, discrimination. Concerns in this area include

Failure to give appropriate protection to confidential personal information in relation to a person's disability may involve or lead to discrimination in some circumstances, as well as discouraging disclosure and discussion of disability related issues.

Employers should also note that a medical, psychological or other expert report does not displace an employer's responsibility for non-discriminatory decision making.

Can standard or routine questions be discriminatory?

A routine question about disability, such as "have you ever had a mental illness?", in an application form or selection process, may have the effect of excluding or disadvantaging applicants with a disability. If a question has this effect it may be unlawful indirect discrimination.

Indirect discrimination occurs where an unreasonable condition or requirement is imposed which disproportionately disadvantages people with a disability and with which the person with a disability concerned cannot or does not comply. The reference to failure or inability to comply with a requirement does not mean that a person can only make a claim of discrimination if he or she refuses to answer a question or fail to answer truthfully. If people who answer "yes" or would truthfully answer "yes" to a question regarding disability are in fact excluded or disadvantaged, a condition or requirement exists in practice of being able to answer "no".

Can application forms ask about disability?

Employers should note that questions which may be reasonable and permitted at interview, for example to examine whether a person's disability affects their ability to perform the inherent requirements of the job or to determine whether reasonable adjustment is required and possible, will not necessarily be regarded as reasonable or permitted in an application form.

Employers should be cautious about including disability related questions in application forms, other than for the purpose of inviting applicants to identify any adjustments required to ensure equal opportunity in the selection process itself. Routine or standard questions should be reviewed to ensure that they are included for a good reason and not for discriminatory reasons. The DDA (section 30) specifically makes it unlawful to request information for the purpose of an act which is or would be unlawful.

So what inquiries and examinations about disability are permitted?

The DDA does not set out particular forms of words as permitted or prohibited. Rather, the lawfulness of inquiries or examinations under the DDA depends on whether they are for a legitimate purpose and are a reasonable means for achieving that purpose. Employers should ensure that

Employers are also advised to make clear the purpose for which they request or require disability information, to reduce misunderstandings which might lead to fears of discrimination. In the case of White v Westworth and Firvas Pty Ltd (http://www.austlii.edu.au/au/cases/cth/HREOCA/1996/22.html) , HREOC found that an employer had acted lawfully in asking an employee about her skin condition, since his intention was not to dismiss her or otherwise discriminate but to establish what could be done to solve the problem. This had not been clear to the employee, however, who lodged a DDA complaint because she thought she had in effect been dismissed. Even though in this case the complaint was not upheld, it would clearly be better for all parties in these circumstances if a complaint was avoided in the first place.

Information for equal opportunity and reasonable adjustment purposes

Actions which are reasonably intended to provide equal opportunity to people with a disability or to persons with a particular disability are permitted by the DDA (section 45) and are encouraged by HREOC. They include inquiries, examinations or actions which are reasonably intended for the purpose of determining the need for, nature of, and possibility of making any reasonable adjustment required.

There is no requirement in the DDA that such discussion should occur only after a job offer is made. HREOC rejects any interpretation of the DDA to this effect as inconsistent with the terms and objects of the DDA.

However, HREOC suggests that generally it will be more appropriate to discuss reasonable adjustment issues in an interview rather than in an application process, except so far as issues concern any need for adjustment in the selection process itself.

Determining ability to perform job requirements

The employment provisions of the DDA implement the International Labour Organisation's Discrimination (Employment and Occupation) Convention 1958. They therefore have to be interpreted consistently with that Convention. The Convention states that "any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination".

In HREOC's view inquiries, examinations or actions reasonably intended to determine a person's ability to perform the inherent requirements of the relevant job are lawful under the DDA

For example: A man with a disability complained that he had been discriminated against by an employment agency which would not refer him for a particular job which involved handling chemicals because he would not disclose of his disability. The delegate of the President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint. He found that a requirement for an applicant for a job handling chemicals to reveal the particulars of his or her disability was a reasonable requirement for the purposes of ensuring the safety of the applicant and ensuring compliance with occupational health and safety requirements by the employer (27 March 1998).

Employers should ensure, however, that inquiries or examinations intended to determine a person's ability to perform inherent requirements are a reasonable means for this purpose. A requirement for information or a medical or other examination, although intended to determine a person's compliance with inherent requirements, might be found to be discriminatory if it is so poorly suited to that purpose that it cannot be said to be "based on" the inherent requirements of the job.

Not all work related requirements will necessarily be regarded as inherent requirements. However, inherent requirements are not the only permitted basis for decisions under the DDA. Other requirements are also permissible, in particular those

For example, a requirement to be able to perform additional duties which are not part of a person's own job might be reasonable if performance of these duties is sufficiently important; the prospect of the emergency situation is sufficiently substantial and if it is reasonable that the particular person should have to perform them in this situation (perhaps because no other employee can reasonably be expected to be available).

Inquiries, examinations or actions reasonably intended to determine a person's ability to comply with reasonable and equally applied job related requirements do not, in HREOC's view, involve discrimination.

Determining insurance and superannuation entitlements

The DDA (section 46) permits distinctions, exclusions or limitations in relation to insurance or superannuation which are reasonable on the basis of actuarial evidence reasonably available and any other relevant evidence.

In HREOC's view this necessarily means that reasonable requests or requirements for information or examinations to determine insurance (including workers compensation) or superannuation entitlements are permitted.

It may be advisable, however, to separate questions for these purposes as far as possible from questions for the purpose of making employment decisions, to reduce the risk of this information having a discriminatory effect on employment decisions or being regarded by an employee or applicant as having a discriminatory effect.

Compliance with prescribed laws

Inquiries or examinations which are undertaken in direct compliance with another law which is a prescribed law for the purposes of section 47 of the DDA are permitted. At present there are no laws prescribed for this purpose. Note however that requirements contained in another law may well be recognised as inherent requirements or at least recognised as reasonable requirements for indirect discrimination purposes."

This advice perhaps indicates that what is permissible and prohibited in this area remains subject to considerable processes of interpretation rather than being clearly stated in section 30 itself.

In its submission to the recent ALRC inquiry on protection of human genetic information, HREOC supported a proposal for the DDA to be amended to prohibit an employer from requesting or requiring genetic information from a job applicant or employee unless the employer can demonstrate that the information is necessary for a purpose that does not involve unlawful discrimination, such as ensuring that a person is able to perform the inherent requirements of the job. That submission stated:

"Section 26 of the Northern Territory Anti-Discrimination Act appears to provide a more suitable starting point as noted by the NSW ADB. This is not, however, to recommend precisely the same drafting, as the Northern Territory provision may present some of the risks of discouraging appropriate discussion of disability issues previously raised by HREOC. In particular, consideration is needed of whether employers requesting information should face a legal onus of proof of the legitimacy of requests for information, or only an evidential burden as applies to issues of unjustifiable hardship under the DDA. HREOC regards imposing an evidential burden only as the preferable implementation of a requirement to "demonstrate" a legitimate purpose."

Do the objects of the DDA adequately describe the social, environmental and economic problems that the legislation should address? Have these problems changed since the DDA was introduced?

The objects of the DDA are stated as being:

(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and

(b) 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

(c) 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.

Elimination of discrimination

The first object of the DDA refers to eliminating discrimination. There could be benefits in adding reference to more positive objects of promoting equality of access and participation in the areas concerned.

The elimination of discrimination is itself only a means to this more positive end. Also, discrimination may be misunderstood as involving particular actions rather than also including larger systemic and structural issues (such as accessibility of information methods, transport and communications systems, and the built environment); and as involving only actions which are consciously based on disability and involve an intention to treat people less favourably because of disability.

The substantive provisions of the DDA are not restricted in this way and do encompass the need to take positive measures on broad structural and systemic issues, and it may be appropriate to have the objects of the legislation reflect this more clearly. The second object does refer in positive terms to ensuring equality, but only in the context of equality before the law rather than more broadly.

The scope of this object matches the substantive provisions of the DDA which make discrimination unlawful.

A partial exception to this is that there is no substantive provision directly addressing discrimination in existing laws. However, as noted elsewhere in this submission, the time limit on the general exception originally provided for actions in direct compliance with other laws, and the need for prescription by regulation of any laws to attract a continuing exemption thereafter, has produced some action to review discriminatory provisions in other laws both at Commonwealth and at State/Territory level.

HREOC also has a function which permits it to inquire into and report on whether other laws are discriminatory or inconsistent with the objects of the DDA. Use of this function to date has been limited - principally because issues of discrimination identified to HREOC as priorities for action whether through complaints or through other means have generally concerned discrimination in practice rather than discrimination embedded in laws. There is some scope however for HREOC to give increased attention to this function as and if it is identified as a priority including through this Inquiry.

Ensuring equality before the law

The DDA lacks any equivalent of section 10 of the Racial Discrimination Act which invalidates discriminatory effects of other laws. Such a provision was originally proposed for the DDA, but was removed at an early stage because of concerns regarding the effect such a provision might have on special legal regimes in relation to people with disabilities in some areas, including guardianship and mental health legislation.

The object of ensuring equality before the law would have related substantially to such a provision if retained in the DDA. Without such a provision, the substantive provisions of the DDA do not have comprehensive coverage compared to this object.

Rules in other laws (including mental health and guardianship laws) governing decision making by or on behalf of people with impairments to decision making capacity are not addressed by the DDA. (This is stated only to make the position clear, rather than to recommend that the DDA should simply override these specific purpose laws.)

Constraints on ability to make decisions in other contexts - for example if it is simply assumed that a person with an intellectual disability lacks the capacity to enter into a transaction such as renting a flat or hiring a video - are capable of challenge through the DDA, although only a small number of complaints has been made in this area to date.

HREOC has not regarded decisions by the Family Court regarding authorization of sterilizing surgery on people with disabilities as governed by the provisions of the DDA dealing with administration of Commonwealth laws - since these do not extend to the content of those laws and since even if court decisions should be regarded as administration than the content of law, judicial immunity from suit would prevent complaints of discrimination in a court decision. Research and policy activity by HREOC in this area has been informed by the equality before the law object of the DDA but has been conducted principally under the provisions of the Human Rights and Equal Opportunity Commission Act instead.

There has however been some use of the DDA regarding administrative aspects of the court system, including accessibility of courts to parties and jurors. Application of the DDA to the conduct of legal proceedings - including issues of access to interpreting and advocacy - is less clear and has not been tested in detail by complaints.

Although the DDA only deals specifically with administration of Commonwealth laws, the provisions regarding access to premises and services and facilities have also been used by complainants in relation to the justice system. This has included a small number of complaints regarding access to services and facilities in prisons.

The Issues Paper refers to issues of privacy rights for people living in institutional accommodation among issues regarding equality before the law.

The DDA has had limited impact to date on issues in institutional living. Reasons for this may have included:

However, these barriers to use of the DDA regarding institutional living may not be insuperable. HREOC understands that advocates in some jurisdictions where other review mechanisms may be less adequate are considering using the DDA to challenge provision by State authorities of disability accommodation in large institutional settings rather than providing a wider range of accommodation options. Similar challenges in the United States under the Americans with Disabilities Act - which has similar objects although different detailed provisions - have been successful.

How should the effectiveness of the DDA in eliminating discrimination be measured? What evidence can you provide of progress in eliminating discrimination in different areas and for different types of disability? What other influences on eliminating discrimination should be taken into account? How should they be measured?

HREOC has recently released a publication on achievements during the first 10 years of operation of the DDA, which is available in a range of formats including on HREOC's website. However, this publication was not intended as a formal evaluation exercise of the kind which the Productivity Commission has the resources and expertise to conduct in this Inquiry.

HREOC hopes and expects that different sectors covered by the DDA will take the opportunity offered by this Inquiry to place on the record substantial additional evidence of the extent of progress in eliminating discrimination. HREOC's information at present is largely confined to actions in which HREOC itself has been directly involved, including through the complaint process.

HREOC has not been provided with resources or powers itself to conduct large scale auditing of compliance or to require reporting on compliance measures (except where an exemption has been applied for and granted with conditions including reporting on compliance measures).

One limit on an ability to measure the effectiveness of the DDA in eliminating discrimination since it was introduced is that comprehensive benchmarks were not established when the DDA was introduced for the degree of compliance existing at the time.

For example, there was no survey prior to introduction of the DDA, as far as HREOC is aware, of the proportion of the building stock (either generally or in particular categories) accessible to people with disabilities.

One reason for this was that the level of accessibility required for compliance was not fully determined prior to development of standards or the emergence of experience in decisions on complaints. Another reason may be that Regulation Impact Statement requirements which would encourage this type of analysis were not applie