Discussion Paper: DDA Standards on Commonwealth Government Information and Communications

Discussion Paper: DDA Standards on Commonwealth Government Information and Communications

See also plain language summary

Note:This paper was issued by the Commonwealth Attorney-General's Department. It is reproduced here on the Commission's World Wide Web site for the convenience of users. This paper is issued as received by the Commission on 15 October 1996.

Development of Disability Discrimination Act Standards on equal access to Commonwealth Government information and communications is being considered by a working party chaired by the Attorney-General's Department. The working party also includes the Disability Discrimination Commissioner, a number of interested Commonwealth Departments, and representatives of the DDA Disability Standards Project (on behalf of people with a disability).

The working party hopes to issue a first draft of Standards in this area for public comment early in 1997. This paper has been issued to inform interested parties of the issues being considered by the working party.

Enquiries and comments on issues raised by this paper, or other issues which should be considered by the working party, would be welcome.

Contents

1. Background

2. Range of possible issues that DDA Standards could address
2.1 General issues
2.2 Access to information materials produced in print
2.3 Computerised information
2.4 Broadcast information
2.5 Telephone communications
2.6 Face to face communications

3. Relationship of DDA Standards to present DDA obligations
3.1 Compliance with a Standard is a complete defence
3.2 Range of issues covered by DDA Standards
3.3 The DDA covers issues not addressed by DDA Standards
3.4 Standards must be consistent with the DDA
3.5 Effect of the DDA on the Standards

4. Existing obligations on equal access
4.1 The necessity of equal access to information and communications
4.2 "Some" access is not necessarily "equal" access
4.3 Equal access means equal convenience, timeliness and cost

4.4 Equal access is required for all people with a disability

4.5 Administration v. content of laws and programs

5. Limitations on the obligation to provide equally effective access
5.1 "Unjustifiable hardship" does not apply under section 29
5.2 Indirect discrimination and the "reasonableness" limitation
5.3 Specific exceptions and exemptions
5.3.1 Special measures
5
.3.2 Superannuation and insurance
5.3.3 Acts done under another law
5.3.4 Infectious diseases
5.3.5 Charities
5.3.6 Telecommunications
5.3.7 Pensions and allowances
5.3.8 Migration
5.3.9 Combat duties and peacekeeping services
5.3.10 Exemptions granted by HREOC

6. Agencies Covered
6.1 Coverage of all Commonwealth departments and authorities
6.2 Coverage of non-Commonwealth bodies
6.3 Position of the courts
6.4 Position of Commonwealth Parliament

7. Comparative material: The Americans With Disabilities Act

Background

Under the Disability Discrimination Act (DDA), the Attorney-General can develop Disability Standards, with Parliamentary approval. The administration of Commonwealth laws and programs is one of the areas where Standards can be developed.

The Human Rights and Equal Opportunity Commission (HREOC) released an Issues Paper on DDA Standards in November 1993. Copies of this paper were distributed to the heads of all Commonwealth Departments, and to major national and state disability groups. The Issues Paper discussed how DDA Standards may be able to make the rights and obligations under the DDA clearer and more certain.

Two possible Standards may address some issues about the administration of Commonwealth laws and programs:

i) DDA Building Standards

Access to Commonwealth buildings is currently being considered with issues of access to premises more generally, in co-operation with the Australian Building Codes Board.

ii) DDA Employment Standards

Possible employment Standards also address some issues about program administration, in employment generally and in Commonwealth employment in particular. Papers about possible DDA Standards on employment were released by HREOC in July/August 1995 for comment by the end of March 1996. These papers discussed specific areas of information such as accessible Commonwealth job information. They also addressed more general issues about information and communications, for example how Commonwealth employees with a disability may require reasonable adjustments in their equipment or in the way they communicate. Because they are specifically about employment, these kinds of issues do not need to be considered in Standards about information and communications.

However, these possible Standards do not cover all issues of equality and non-discrimination for people with a disability in the administration of Commonwealth laws and programs.

In particular, DDA Standards on equally effective access to Commonwealth Government information and communications should be considered. This need was raised by the following:

(a) by the Attorney-General's advisory DDA Disability Standards Working Group. This group includes the Disability Discrimination Commissioner, and representatives of the Office of Disability, Attorney-General's Department, Australian Disability Consultative Council, and the National Coalition for the Development of Disability Standards;

(b) as part of a settlement in a DDA complaint by the National Federation of Blind Citizens of Australia, the Commonwealth agreed to consider DDA Standards in this area; and

(c) the Commonwealth's Disability Task Force's endorsement of consideration of DDA Standards in this area at its meeting on 6 July 1995.

The Commonwealth Disability Strategy (CDS) identified the importance of information and communication by government, and committed Commonwealth departments and authorities to making information services and documentation accessible.

DDA Standards may be able to set out more clearly the obligations of departments and authorities, which would help them comply with the DDA and implement the CDS.



2. Range of Possible Issues that DDA Standards could Address

DDA Standards can offer greater clarity and certainty of rights and obligations to all parties involved. Given this potential benefit, Standards should include issues about equal access to Commonwealth Government information and communications unless these issues are better left to be covered by the existing sections of the DDA, or are to be deferred for further consideration.

Discussions with key departments, agencies and representative disability community groups should raise a number of issues for consideration. The following questions might assist that discussion. They indicate some of the issues which should be considered in developing a Standard in this area.


2.1 General Issues

  • How far should Standards go beyond a general obligation to provide equal access? Should they specify particular forms and formats in which information and communication is and is not required to be provided?

  • What requirements should apply only where requested by a person with a disability rather than as a matter of routine?

  • In situations where fully equal access is not required or possible, does any "second best" rule apply about the level of access?

  • Do Standards need to address additional fees or charges for providing information in non-standard forms?

  • Should Standards on information and communication say anything about access to buildings where information is provided and communications occur? Or should this be dealt with separately?

2.2 Access to Information Materials Produced in Print

  • Must materials always be made available in Braille? In large print? On tape/other audio form? On computer disc? On sign language video? In other forms such as "words and pictures"?

  • In what circumstances do some formats not need to be produced?

  • What production standards should be applied to these formats?

  • Who should be responsible for translating standard print material into other formats? Originating agencies? A central authority such as the Australian Government Publishing Service?

  • May production and distribution of non-standard print formats be contracted out to commercial producers or community organisations? Or must non-standard print materials be available from the same source as standard print?

  • Should non-standard print versions of information always be made available at the same time as standard print material? If not, what "second best" rules apply?

  • Other than "words and pictures" and "plain language" versions of print, what means would enable equal access for people whose disability involves difficulties with comprehension?

  • When should readers or other assistants have to be provided to afford access to printed materials?

2.3 Computerised Information

  • How far may on-line access (or other computerised information such as computer disc or compact disc) substitute for direct production by agencies of Braille, large print and audio output?

  • What, if any, technical requirements should Standards address (e.g. to ensure that output is accessible and that material can be translated between formats)?

  • What, specifically, should Standards on information and communication say about physical accessibility of equipment and facilities used to provide access on computer?

  • Can/should Standards include anything about making access to computerised information easier for people with comprehension difficulties?

  • The Commonwealth may in some cases rely on electronic transfer of information rather than on direct production of materials in forms other than standard print. If it does this, how far must it increase individuals' and/or organisations' capacity to receive information electronically and reproduce it in appropriate forms (e.g. by provision of funds, equipment, staff assistance or training)?

2.4 Broadcast Information

  • Should DDA Standards say something about captioning of Commonwealth information broadcast on television (e.g. information from the Australian Electoral Commission and free time allocated to political parties)?

  • Should DDA Standards say anything else about equal access to broadcast information?

2.5 Telephone communications

  • Should Commonwealth agencies have to provide direct TTY access? Could they provide access in some or all circumstances by other means, such as through the national relay service or through computer networks?

  • Should DDA Standards set specific requirements about relay services?

  • Where there is direct TTY access, what level of access should be provided?

  • Should DDA Standards say something about telebrailler access?

  • Should DDA Standards say something about voice amplification features of telephones?

2.6 Face to Face Communications

  • When should Commonwealth authorities have to provide interpreters, note-takers or other assistants?

  • What qualifications/accreditation should such assistants have?

  • What equipment should Commonwealth authorities have to provide? What equipment should be the responsibility of the person with a disability?

  • Should communications facilities such as hearing loops be addressed in these Standards, or in Standards about Commonwealth premises?

3. Relationship of DDA Standards to Present DDA Obligations

3.1 Compliance with a DDA Standard is a Ccomplete Defence to a DDA Complaint

Section 34 of the DDA says that when an action complies with a Standard, the unlawful discrimination provisions in the DDA do not apply. In other words, within its area of application, a Standard defines DDA obligations exhaustively.


3.2 Range of Issues Covered by DDA Standards

DDA Standards could cover all the issues in DDA section 29, but could also cover a narrower range.

Standards about the administration of Commonwealth laws and programs could cover all the issues addressed in DDA section 29, except those about associates of people with a disability (eg. partners and carers). At present, Standards cannot address associates. Such Standards could, however, cover the full range of people with a disability as defined by DDA section 4.

Standards could also cover a narrower range of issues than those in section 29. For example, this paper is limited to information and communications issues rather than the administration of laws and programs generally.


3.3 The DDA Covers Issues not Addressed by DDA Standards

Issues not covered in DDA Standards are still covered by the non-discrimination provisions in the DDA.

DDA Standards could set out a complete code of obligations about equal access to information and communication for agencies administering Commonwealth laws and programs, but are not required to do so. If the Standards fail to cover any issue, it would still be covered by the existing non-discrimination provisions of the DDA. The fact that some issues may not be covered by DDA Standards does not mean that people with a disability lose their rights in those areas. Present responsibilities and potential liability of departments remain in force for issues which Standards do not cover.

Any Standard, therefore, should be drafted carefully. It should be clear if it does not cover an issue, so that the existing provisions of the DDA apply. It should also be clear if it does apply to an issue but simply does not provide for the obligations claimed by a person with a disability.


3.4 Standards Must be Consistent with the objects of the DDA

DDA Standards must be consistent with the objects of the DDA.

General administrative law principles require that valid DDA Standards need to promote and be consistent with the objects of the DDA. This has a number of consequences:

  • DDA Standards have to be about non-discrimination in existing laws and programs rather than about requiring new substantive programs. However, to some extent Standards could require measures in some programs to ensure equal access. Specific program measures could be one way to satisfy general obligations to provide equal access. For example, the National TTY (Telephone Typewriter) relay service can be seen as meeting some of the Commonwealth's obligations to provide access to its own communications for Deaf people and people with speech impairments.

  • DDA Standards need to promote the object of eliminating discrimination as far as possible. Other objects, such as protecting the Commonwealth (or other bodies) from unforeseen or unwelcome consequences of the DDA itself could not be promoted in the Standards. This function is distinct from the purpose of DDA Standards in clarifying rights and obligations which are genuinely uncertain. Increased certainty of rights and obligations clearly furthers the objects of the DDA, even if the Standard sometimes provides for less extensive rights than might have been argued for under the existing sections of the DDA.

3.5 Effect of the DDA on the Standards

Although DDA Standards do not need to have precisely the same legal effect as the sections of the DDA, the effect of the existing provisions is still relevant.

DDA Standards do not need to have the same effect as the existing provisions of the DDA. If they did, some sections of the DDA would be made meaningless. For example, sections 32 and 33 of the DDA say that a person must comply with a Standard and that where they do, the non-discrimination sections of Part 2 of the DDA do not apply. Also, if DDA Standards had to reproduce exactly the legal effect of the existing DDA sections, no Standards could be made where the effect of the existing provisions is uncertain. This, however, is precisely where Standards could help achieve greater clarity.

The effect of the existing provisions is relevant to what may or should be provided by Disability Standards:

  • If an overall package of Standards promotes the objects of the DDA, some reduction, limitation or postponement of the rights and obligations in the DDA may be allowed. However, any significant reduction in existing rights and obligations could be challenged in court, because it may not be consistent with the object of eliminating discrimination "as far as possible".

  • An overall reduction in rights and obligations would only be consistent with the objects of the DDA if it is not possible to comply with the present level. Such a claim would likely be scrutinised closely.

  • Before Standards are developed, disability community participants should be able to know how far they depart from existing rights and obligations. This would serve the interests of certainty and practicability.

  • The effect of Standards on agency budgets would depend how far Standards increase, limit, or simply reflect existing obligations of departments and agencies under the DDA. That is, if Standards simply reflect present DDA obligations, then government agencies could not argue that they need their budgets supplemented before Standards are implemented.

4. Existing Obligations on Equal Access

4.1 Equal Access to Information and Communications

Equal access to information and communications is necessary if Commonwealth laws and programs are to be administered in a non-discriminatory way. Except where the DDA specifies exceptions and exemptions, any information and communications in the course of administering Commonwealth laws and programs must be made equally accessible to people with a disability. The limitations on this are discussed below.


4.2 "Some" Access is not Necessarily "Equal" Access

Case law on access to buildings has shown that "some" access does not necessarily satisfy a requirement of "equal" or non-discriminatory access. In Cocks v Queensland the Queensland Anti-Discrimination Tribunal said that the failure to make the main entrance of the Brisbane Convention Centre accessible to persons using wheelchairs was unlawful discrimination, even though there were other accessible entrances.

The same principle applies under the DDA: subject to any exceptions or limitations, equal access is required rather than only some access. For example, if Deaf people and people with speech impairments can use one TTY receiver in an agency while other people can telephone any agency personnel directly, some access is provided but not equal access (at least unless the national TTY relay service is accepted as giving equally effective access).


4.3 Equal Access Means Equal Convenience, Timeliness and Cost

Equal access in the administration of Commonwealth laws and programs means that information and communications should be available with equal convenience, at the same time, and at equal cost (if applicable).

Some limits on full equality in these areas may be necessary and may be justified by exceptions in the DDA. These are discussed below. It is, however, uncertain how far equality can be limited and it would be useful if this was addressed in DDA Standards.


4.4 Equal Access is Required for all People with a Disability

Equal access to information and communication is required for all people with a disability.

These obligations apply to the full range of people covered by the DDA's definition of disability. Disabilities which may raise issues of access to Commonwealth government information and communication clearly include:

  • intellectual or learning disabilities;

  • disabilities affecting vision or hearing; and

  • physical disabilities which affect a person's ability to use particular communications equipment and facilities or information in particular forms.

4.5 Administration v. Content of Laws and Programs

Although DDA section 29 and the power to make Standards apply to the administration of laws and programs rather than to their content, there may still be a need for substantial measures to ensure non-discriminatory administration.

The non-discrimination requirements of DDA section 29 and the power to make Standards under section 31 relate to "administration" of laws and programs. Administration of laws and programs is different than the substantive content of such programs. The content of programs is not addressed by either section. However, some matters which are described as part of the content of a program may in fact be matters of administration only. The distinction is similar to the one in section 24 between adjustments to ensure equal access to a provided service (which are required) and the provision of a different service (which is not required). Standards could clarify these kinds of issues.

The DDA is concerned with discrimination, not with imposing a more general "citizen's charter". It requires equal access in whatever information and communication exists, rather than requiring that particular information and communication be provided. However, providing non-discriminatory access may require substantial measures. It may mean providing information in different forms and expanding available communications. Simply providing the same service to everyone will not avoid discrimination under the DDA.

5. Limitations on the Obligation to Provide Equally Effective Access

5.1 "Unjustifiable Hardship" does not Apply under Section 29

Section 24 of the DDA addresses access to goods, services and facilities. This section covers Commonwealth authorities and bodies acting on their behalf, as well as all other entities. DDA section 12(7) confirms this. However, the concept of unjustifiable hardship qualifies the obligations under section 24. In unjustifiable hardship, if a person's disability requires adjustments, the benefits of making the adjustment are weighed against costs or other hardship. The concept of unjustifiable hardship also takes into account the financial resources of the provider. Clearly, if a complaint was lodged against the Commonwealth, this factor would be of less benefit to the Commonwealth than it may be to other bodies.

However, Commonwealth authorities and other authorities administering Commonwealth laws or programs are also subject to DDA section 29. This section says that a person who exercises powers under a Commonwealth law or program cannot discriminate against someone because of their disability or their associate's disability.

Section 29 does not contain any "unjustifiable hardship" limitation. This contrasts with section 24, which includes such a limitation for providers of goods, services and facilities in general. This is significant because it shows that the Commonwealth has put a higher obligation on itself (and on people administering its laws and programs) than that which applies to other entities.

As will be discussed below, however, this does not mean that the Commonwealth's obligation to provide equally effective access to information and communications is completely unqualified.


5.2 Indirect Discrimiation and the "Reasonableness" Limitation

The "reasonableness" element of indirect discrimination limits some obligations, but its extent is uncertain.

Direct discrimination occurs where a person with a disability is treated less favourably than other people. Indirect discrimination happens when a service is provided in a way that is less favourable in its impact on a person with a disability. In some cases, it can be unclear which kind of discrimination is applicable, or whether both apply.

Indirect discrimination under section 6 of the DDA happens where a person with a disability cannot comply with a requirement which a substantially greater proportion of people without a disability can comply with, and which is not reasonable.

The President of HREOC found an example of indirect discrimination in the recent decision Scott v Telstra Corporation. There the requirement to be able to use a standard telephone handset in order to use Telstra's telecommunications service was one which Deaf people who required a telephone typewriter (TTY) could not comply with. This was found to be an unreasonable requirement.

There is as yet little case law on the meaning of "reasonableness" under section 6 of the DDA. The High Court in Waters v Public Transport Corporation looked at the equivalent concept in the Victorian Equal Opportunity Act, and said it should take into account all the relevant circumstances. The DDA was drafted on the understanding that this aspect of Waters would also apply to the DDA.

However, while "reasonableness" and "unjustifiable hardship" may consider similar issues, the two concepts do not necessarily have the same effect.

In Scott v Telstra Corporation, Sir Ronald Wilson said that the specific elaboration of unjustifiable hardship in the DDA would make no sense if all the factors in that defence were relevant to establish the reasonableness of the requirement. Moreover, such an interpretation would reverse the onus of proof. He concluded that a test of reasonableness may include the financial circumstances of the respondent, but it depends on the precise character of the requirement.

In the context of providing equal access to information and communications, the President's analysis does not mean that costs and other consequences are necessarily irrelevant. It does, however, emphasise the point made earlier in this paper that the Commonwealth's ability to use such considerations in defence of DDA complaints is uncertain and may be limited, especially in relation to direct discrimination.

DDA Standards can clearly specify the extent and limits of obligations. The possible need and justification for limits on obligations to provide fully equal access is discussed later in this paper.


5.3 Specific Exceptions and Exemptions

The sections of the DDA (including section 29) are subject to a number of exceptions and exemptions, set out in Division 5 of Part 2 of the Act. However, section 33 says that Division 5 does not apply to DDA Standards. Because Standards should produce the same legal effect as all the existing sections (including the exemptions and exceptions) they would need to incorporate these limitations. Of course, it could also be decided that some of the exemptions which apply to the existing provisions do not need to be addressed in the Standards.


5.3.1 Special Measures

Section 45 of the DDA permits acts which are "reasonably intended" to ensure that persons with a disability have equal opportunities, and access to goods, facilities, services, grants, benefits or programs to meet their special needs. This provision includes the administration of Commonwealth laws and programs.

The "special measures" sections in the Racial Discrimination Act (RDA) and the Sex Discrimination Act (SDA) have received most attention when they have been challenged by persons outside the eligible group. These have included challenges to land rights laws by non-members of Aboriginal groups (Gerhardy v Brown), and challenges by men to programs specifically addressing the needs of women (Proudfoot v HREOC). Most sections of the RDA and SDA are drafted in race or gender neutral terms --that is, they address discrimination "on grounds of race" or "on grounds of sex". Non-neutral, "race-conscious" or "gender-conscious" measures have to be defended by the special measures sections.

This aspect of special measures is less relevant under the DDA. A person clearly cannot use the DDA to complain that they have been discriminated against because they do not have a disability, or because they do not have a disability that makes them eligible for a particular program, benefit or opportunity. Similarly, they could not complain that they have been discriminated against because they are not an associate of a person with a disability.

However, the "special measures" section of the DDA may be significant in some situations:

  • Special measures may be important where actions intended to ensure equal opportunity or access are seen as less favourable treatment. For example, a person with a disability may object to being asked to identify any specific requirements. But such requests are permitted where they are reasonably intended to give equal access. Another example may be where the method for providing access is not the one preferred by a person with a disability. Section 45 may apply in this situation if the method was reasonably intended to provide equal access, although this would need to be demonstrated.

  • Special measures may also be important where actions which are reasonably intended to address disability-related requirements disadvantage some people with a disability. Given the diversity of disability, there may be some tensions between the requirements of fully equal access for different people with a disability. For example, electronic induction loops which make it easier for people using hearing aids to access communications may cause interference for people whose hearing aids are not compatible with these loops. The special measures section could apply here to protect against liability where reasonable measures have been taken to balance the conflicting needs.


5.3.2 Superannuation and Insurance

Under DDA section 46, a person can refuse to offer insurance or superannuation, or to discriminate in the conditions on which either is available, if the discrimination is reasonable according to actuarial and statistical data and any other relevant factors. Although some Commonwealth programs involve insurance and/or superannuation, section 46 is not a general exemption for such programs, and is not relevant to issues of equal access to information and communications.


5.3.3 Acts Done Under Another Law

DDA section 47 outlines a number of exceptions. In particular, actions in direct compliance with any other law were exempted until 1 March 1996. After this date, actions which comply with laws prescribed for this purpose by regulation are exempt. The Attorney-General has requested all Ministers (and State and Territory Attorneys-General) to review the laws in their area for consistency with the DDA and to identify any laws where regulations are required and justified. These reviews should identify any conflicts which Standards need to address. However, in the specific area of accessibility of Commonwealth government information and communications, it might be possible to identify any difficulties arising from other laws separately and earlier.


5.3.4 Infectious Diseases

Section 48 of the DDA exempts actions reasonably necessary to protect public health where a person's disability is an infectious disease. This exception does not appear to be sufficiently relevant to Standards on equal access to Commonwealth government information and communications.


5.3.5 Charities

Section 49 exempts actions to give effect to charitable instruments which benefit people who have a disability. This exception is not relevant enough to Commonwealth government information and communications to require further consideration here (nor, for the reasons given in the "special measures" section, is it easy to see what legal difference this section makes in any other circumstances).


5.3.6 Telecommunications

Section 50 of the DDA, which expired on 1 March 1996, temporarily exempted payphones and public payphones. Extension of this exemption through Standards would substantially alter obligations in the DDA and would likely not be valid.


5.3.7 Pensions and Allowances

Section 51 exempts discriminatory provisions on "pensions, allowances or benefits" in the Social Security Act and a number of other Acts. It also exempts acts which comply with those provisions. As with the exemption under section 46, this is not a general exemption. The Commonwealth continues to have the same obligations for equal access to information and communications here as in other programs.


5.3.8 Migration

Section 52 of the DDA exempts any discriminatory provisions in the Migration Act and its regulations from Divisions 1 and 2 of Part 2 of the DDA. It also exempts anything done "in relation to" the administration of the Migration Act and regulations.

This exemption might appear to cover communication and provision of information in relation to the Migration Act and its administration, because it is drafted more broadly than necessary to protect decisions authorised by that Act and regulations. However, reproducing a similar exemption in Standards about government information and communications would serve no clear public policy purpose.


5.3.9 Combat Duties and Peacekeeping Services

Sections 53 and 54 of the DDA exempt employment, engagement or appointment for combat and related duties or peacekeeping service in either the Australian Defence Force or the Australian Federal Police. These sections concern employment issues only, and are not general exemptions for these bodies from the DDA.


5.3.10 Exemptions Granted by the Human Rights and Equal Opportunity Commission

Section 55 of the DDA permits HREOC to grant temporary exemptions for up to five years at a time. No criteria or procedure for granting exemptions are set out in the DDA. Exemptions must, however, be gazetted and there is provision for review by the Administrative Appeals Tribunal. HREOC has developed guidelines to consider applications for exemption, including provision for comment from interested parties. These guidelines are based on the general administrative law principle that the power to grant exemptions must be exercised in a way that promotes the objects of the law.

The power to grant exemptions from the DDA does not extend to granting exemptions from Standards. Such a power, in HREOC or some other decision maker, would need to be specifically provided for in the Standards or possibly by amendment of the DDA.

6. Agencies Covered

6.1 Coverage of all Commonwealth Departments and Authorities

Under section 29 of the DDA all Commonwealth agencies responsible for information or communication in the administration of Commonwealth laws or programs must provide equally effective access. These obligations, and the possible coverage of DDA Standards, are not restricted to agencies who have specific responsibilities for information and communications.

The position of the courts and the Parliament in relation to the DDA and possible Standards needs to be considered further (see below at 6.3 and 6.4).


6.2 Coverage of non-Commonwealth bodies

DDA section 29 covers any agency which administers Commonwealth laws or programs.

The Commonwealth may also be liable under the DDA for discrimination where laws or programs are administered by others. A person who causes, instructs, induces, aids or permits another person to do an unlawful act is also liable for the act under section 122. Under section 123, the Commonwealth is liable for the conduct of its servants or agents except where it shows that it has taken reasonable precautions to avoid the discrimination.

Section 31 allows the development of Standards on administration of Commonwealth laws and programs for people with a disability generally, not only where programs are administered by the Commonwealth itself.

The issue of whether DDA Standards should be applied (ultimately, if not initially) to bodies other than the Commonwealth should be considered. Bodies which might administer Commonwealth laws or programs include State or local government authorities, community organisations, State courts, police, and correctional authorities.


6.3 Position of the Courts

Courts are referred to here because:

  • their activities depend on a high level of communication;

  • there are a number of serious concerns about equally effective communication for people with a disability in the courts;

  • the Justice Statement is working on equal access to and treatment in the courts, and it is appropriate to consider whether DDA Standards can contribute to this.

Federal courts, and State courts when exercising Federal jurisdiction, are clearly engaged in "administration of a Commonwealth law". As such, they could be covered by DDA Standards under section 31.

However, it may be doubtful whether courts and judicial officers can be liable for "unlawful acts" under the DDA. Non-compliance with the DDA is an "unlawful act". However, a complaint to HREOC is the only way to enforce the DDA and the Standards, and it seems inappropriate for reviewing decisions or practices of courts. If DDA Standards are to apply to procedures and decisions of the courts (rather than only to the facilities provided to the courts by the Executive), other means of enforcement may need to be considered. These may, for example, involve adding to the Rules of Court or developing court charters.

The same constitutional problem does not apply to the DDA and Standards covering facilities provided to courts by the Executive (e.g. communications equipment in court houses, transcription services etc.). However, equally effective communication and information in court is not restricted to these issues. A number of issues were identified in HREOC's comments on the Access to Justice Advisory Committee Report. They more closely involve court decisions and procedures:

  • Under DDA section 7, discrimination on the basis that a person with a disability uses an "auxiliary aid" is unlawful. In the context of court proceedings this would include failure to accord equal treatment to a person who uses a computer for communication, or a wheelchair for mobility.

  • DDA section 8 makes unlawful discrimination on the basis that a person with a disability is accompanied by an interpreter, reader, assistant, or carer who provides interpretive, reading or other services. In the context of court proceedings, this would include not only formal language interpreting services such as sign language, but also:

a) more personalised language interpreting, for example between the court and someone whose speech is not easily understandable because of a disability such as cerebral palsy, but who can make her or himself understood through a person accustomed to this role (who may not need to be an accredited interpreter);

b) interpreting which goes beyond simple translation to include interpreting of concepts and processes. This may be particularly relevant to enable a person with an intellectual or learning disability to participate on equal terms;

c) other services as support person and/or advocate where required by a person because of her or his disability to permit equally effective understanding of and participation in the proceedings.

The fact that the court does not allow equivalent services for people who do not have a disability would not be an answer to a complaint of discrimination: see DDA sections 5(2), 7 and 8.

These provisions of the DDA seem to indicate that the obligation to make adjustments so that a person with a disability has an equal opportunity to participate effectively in legal proceedings is at least as extensive as similar obligations concerning persons of non-English-speaking background. Moreover, they are more specifically legally recognised under Australian discrimination law.

Any Standard in this area should also consider how the use of necessary assistants and assistive devices by people with a disability (whether as parties, witnesses, legal representatives, judicial officers, jury members or in any other relevant capacity) is facilitated rather than hindered by courts, tribunals and other agencies. Where it is not appropriate that the person supply all their own needs in this area, it may be appropriate for the agency concerned to provide that assistance.

These comments also emphasise the point made earlier that equally effective communication and information is not restricted to issues about equipment and the form in which information is provided (e.g. print, sound, Braille, etc). Standards should consider issues affecting people whose disability involves other comprehension or communication difficulties.


6.4 Position of Commonwealth Parliament

Parliament authorises significant Commonwealth information and communication functions.

As with facilities provided to the courts, communication facilities provided to the Parliament by the Executive are covered by DDA section 29 (and in many cases by section 23 and/or 24) and could be covered by DDA Standards. However, it is not at all clear that "administration of Commonwealth laws and programs" covers decisions, procedures and actions of the Parliament itself. Coverage of these may require either amendment of the DDA or other action by the Parliament.

7. Comparative Material: The Americans with Disabilities Act

U.S. Department of Justice regulations under the Americans with Disabilities Act contain a number of provisions about information and communication which apply to State and local governments.

Under these regulations there is a general duty on public bodies to ensure their communications with people with a disability are equally effective as their communication with others. However, this is subject to two limitations:

a) a public entity does not have to make adjustments which would fundamentally alter the nature of its services or program; and

b) a public entity does not have to make alterations which would impose an undue financial or administrative burden.

The "fundamental alteration" limitation can be compared to the limitation in DDA section 29 and DDA Standards to issues of administration of laws and programs rather than to their substantive content. As discussed above, there is no "undue burden" limitation in DDA section 29, but some of the same issues may be covered by the reasonableness element of indirect discrimination.

The requirement to ensure equally effective communication specifically includes making available auxiliary aids and services where necessary. The regulations and Department of Justice manuals provide a number of examples.

Examples of adjustments for Deaf people and people with a hearing impairment include interpreters, note takers, computer aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, hearing aid compatible telephones, closed caption decoders, open and closed captioning, TDDs (TTYs), Videotext displays, and exchange of written notes.

Examples of adjustments for people with vision impairments include readers, taped texts, audio recordings, Brailled materials, large print materials, and assistance in locating items.

Examples for people with speech impairments include TDD (TTYs), computer terminals, speech synthesisers, and communication boards.

No examples are given about the communication and information needs of people with an intellectual disability. However, these requirements seem to be covered in the general duty to ensure equally effective communication.

The U.S. Department of Justice Manual says that the type of auxiliary aid or service necessary depends on the length and complexity of the communication. In particular, it emphasises the need for equally effective communication in courtrooms, and in medical and police settings. It also emphasises that access is required for all participants in a program, not only for the people who directly receive the services. For example, the presence of the public in court and in the legislature is seen as an important part of the accountability of those activities. The manual therefore emphasises equal communications access for people with a disability in these settings.

The U.S. regulations say that people with a disability should be able to request the auxiliary aid of their choice. Public bodies are required to give "primary consideration" to that preference. However, they do not have to give effect to the person's preference if they can show that another means of communication is available and equally effective, or that using the person's preferred means would fundamentally alter the nature of the program or impose an undue burden. Because of the diversity of requirements of people with a vision or hearing disability, the Department of Justice Manual stresses the importance of consulting with the individual to identify effective means of communication.

Telephone communications are addressed separately. Public entities that use the telephone must provide equally effective communication to people with a disability. Where relay services are available, the U.S. Department of Justice indicates that "generally" these may meet requirements for TDD (TTY) access. (Note that relay services in the U.S. are required to provide access for people using ASCII computer codes as well as the Baudet code which TTY/TDDs use.) An exception to this is that where a public entity provides emergency services, it must provide direct TDD access. TTY numbers may be separate from the main (voice) numbers, but must be both equally effective and well publicised. Fitting of telephones with voice amplification is encouraged but not required.

Additional fees are not permitted for actions necessary to ensure equally effective access.