PRODUCTIVITY COMMISSION REVIEW OF DISABILITY DISCRIMINATION ACT
SECOND SUBMISSION: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
See also HREOC initial submission; and Inquiry
main index page for access to other submissions and transcripts
of the DDA on competition and productivity
of the DDA: indigenous issues
and measurement issues
of defined areas only
before the law
to premises issues
of DDA to equipment imported from overseas
This submission provides comments
on issues raised by other organisations and individuals in submissions
and hearings up to
(that is, up to submission number 172 and in hearings in ,
Brisbane, and ).
As anticipated in HREOC's initial submission, comments from other organisations
and the public have provided valuable information and perspectives. Industry
input to this point has been more limited than might be hoped, other than
from the insurance industry and the education sector, but HREOC looks
forward to further industry input following from the appearance of the
Australian Chamber of Commerce and Industry at the Inquiry's
Comments here are made only
where HREOC wishes to emphasise, add to, or take issue with comments in
other submissions. This document does not seek to provide a summary of
all points of other submissions in particular where the same or a similar
view is presented in HREOC's initial submission. It should be noted however
that there is extensive common ground between HREOC's initial submission
and those from State and Territory anti-discrimination authorities in
particular. These agencies support the importance of the DDA and HREOC
in providing national leadership, development of a consistent national
approach including through standards, and a national profile and heightened
awareness of discrimination against people with a disability.
of the DDA on competition and productivity
Several submissions make the
important point, perhaps not sufficiently clearly stated in HREOC's initial
submission, that access to competitive markets for consumers is enhanced
if discriminatory barriers which exclude people with disabilities are
removed. Other submissions (as well as ACCI's comments in the Inquiry's
the points made by HREOC that improved access by people with disabilities
to employment may have pro-competitive effects in labour markets.
Submissions (for example s165)
also emphasise that costs of disability in Australian society are present
already rather than being generated by the DDA, and that the issue is
how to distribute these costs appropriately and reduce their impact as
far as possible both on individuals and businesses.
Particularly interesting analysis
and argument relevant to this issue is presented in submission number
120 from Dr J.Frisch. Dr Frisch argues that in principle the DDA enhances
economic efficiency as well as social justice but is limited in performance
in both areas by uncertainty and incomplete enforcement - i.e. that clearer
upfront standards and more reliable enforcement would enhance rather than
detract from economic efficiency. He emphasises the importance for overall
productivity of maximising use of capabilities of members of society rather
than accepting limitations based on given distribution of endowments (including
wealth but also including disability). He points to market failures regarding
disability including a missing insurance market for the costs of disability,
and refers to premiums which people would be prepared to pay rather than
bear these costs individually, as identifying an economically efficient
level of public expenditure on promoting access and inclusion. Carers
Australia also refer in the Inquiry's Canberra hearings to the possibility
of a more comprehensive social insurance scheme for costs of disability
funded on similar lines to the Medicare levy.
Other submissions (e.g s165)
in common with Dr Frisch also refer to issues of externalities as justifying
increased public expenditure to promote access and inclusion and reduce
needs for reliance on unjustifiable hardship defences, noting that costs
of disability otherwise fall on individuals or particular enterprises
while many of the benefits of participation would accrue to society more
Submissions also (in common
with HREOC's initial submission) point to the costs and market inefficiencies
of parallel services required because mainstream systems and facilities
are inaccessible (see for example s157).
Submissions also note that
costs of providing access will generally be lower if access can be built
in at the outset and that this will be promoted by development of standards
and codes. Some submissions (s118, 138) also provide references for estimates
of benefits of more accessible environments and inclusive markets.
Some submissions argue that
access requirements cannot be anti-competitive if uniformly applied. However,
as indicated in our initial submission HREOC accepts that uniform regulatory
requirements could be anti-competitive if so stringent as to exclude smaller
players or new entrants (since a playing field which is not level but
equally steep for all may exclude all but the strongest, a point familiar
from indirect discrimination law).
HREOC's initial submission
referred to a lack of evidence that the DDA is having this anti-comptetive
effect, having regard to the flexibility provided by provision for consideration
of unjustifiable hardship.
It must be accepted however
that consideration is required of concerns raised in submissions by several
education provider associations (including s126) that the operation of
unjustifiable hardship in that area is too uncertain to provide the flexibility
in practice envisaged by the legislation, for schools which have limited
resources to meet significant additional costs which are not addressed
fully by government assistance funding. HREOC sees a clarification of
obligations in the education area rather than their reduction as the appropriate
response to this situation, together with expansion or improved targeting
of government support to ensure that students with disabilities have access
not only to effective education but as far as possible the same choices
available to other students.
In this respect it may be
relevant to note very extensive payments which have been made within the
framework of competition policy to providers in some other industries
to offset adjustment costs in moving to more open market access for consumers.
Objects of the DDA: indigenous
One submission (s59) proposes
that powers and functions under the DDA should be required to be exercised
having regard to the needs and circumstances of indigenous people.
HREOC would agree in principle
to inclusion of provisions on these lines in Australian legislation generally.
An additional measure more directly relevant to some of the issues of
access to basic services and services specifically for indigenous people
with disabilities, however, might be to include a provision in the ATSIC
legislation and other relevant law requiring powers and functions to
be exercised having regard to the needs and rights of indigenous people
with disabilities. Comments in another submission (s121) on disability
standards as being culturally inappropriate for indigenous communities
appear to relate to standards for disability services rather than DDA
Several submissions point
to very high rates of hearing loss among indigenous people and a lack
of identification of or accommodation for children with hearing loss in
Although the DDA cannot be
used to address lack of effective prevention of hearing loss, issues of
lack of effective accommodation of indigenous children with hearing loss
would appear highly suitable for lodgement of representative complaints
by deafness and/or indigenous organisations under either local discrimination
law or the DDA. HREOC is also currently considering possible areas for
inquiry regarding particular disadvantages experienced by indigenous people
and measurement issues
In common with HREOC's initial
submission, a number of submissions (s44, 55, 64) note a lack of an adequate
statistical picture of the experience of people with disabilities. Some
submissions point to statistics on unequal employment outcomes (for example
s72). Other submissions (s86) note current processes towards development
of more meaningful indicators in the education area. HREOC is not itself
in a position to conduct a "state of the nation" audit but agrees that
improved indicators of a range of disability issues would be highly useful
to inform policy and program activity and to inform public and media discussion
A number of submissions (s55,
64, 78) criticise the definition of disability in the DDA as adopting
a medical/deficit model and recommend a social model of disability (recognising
the disabling effect of inaccessible environments, social attitudes etc)
be adopted instead. Some submissions (s92, 112) go further to present
the use of the label "disability" in equality legislation as self defeating
and call for more general equality legislation without using the term
disability or specifying particular grounds of discrimination.
The DDA considered as a whole,
however, rather than only in relation to the definition of disability,
already reflects a social or environmental model of disability, including
in requiring change in various social systems and facilities, rather than
accepting a medical or deficit model.
Possibilities for including
a social or environmental model of disability purely in the definition
of disability were considered when the DDA was drafted. However, these
approaches were rejected because they risked leaving some instances of
disability discrimination outside the coverage of the legislation (for
example, where discrimination occurs in a particular case although not
typical of general societal barriers or prejudices). Very extensive theoretical
debates in the UK on means of incorporating a social model of disability
prior to introduction of disability discrimination legislation there only
resulted in a definition of disability which (as advised in advance by
HREOC to UK authorities and NGOs and as discussed in HREOC's initial submission
in this inquiry) has proved in practice much less inclusive than the Australian
The scheme of the DDA in providing
for standards of general application rather than relying purely on discrimination
complaints was intended to move away from focus on "disability as difference"
towards universal design approaches - thus for example every person should
be able to benefit from more universally accessible transport services
or buildings regardless of his or her relationship to any definition of
disability. As indicated in its initial submission HREOC supports expansion
of provision for codes and standards on inclusive systems and inclusive
design beyond the areas presently provided for in the power to make DDA
Past and future disability
One submission (s150) raises
the questions of application of DDA coverage regarding present, past or
future disability to episodic disabilities which might not be seen as
fitting neatly into a category either of being past present or future.
HREOC however would see episodic
disabilities as clearly covered, whether a person is regarded as having
(currently) an episodic disability which may have manifested itself in
the past and may again in future, or whether the person is regarded as
having had an episode in the past which may or may not be repeated.
One submission (s19) argues
past and future disability should be deleted on the basis that this gives
benefits to people who do not need it. HREOC disagrees. The DDA is not
the exclusive possession of people with "real" disabilities however conceived.
These elements of the definition of disability only operate if a person
is discriminated against, and confer no other benefits, while being necessary
to ensure protection in cases such as those regarding cancer survivors
or women who have experienced a past episode of post natal depression
Determination of psychiatric
One submission (s150) questions
who under the DDA determines whether a person has a psychiatric disability;
whether the DDA limits psychiatric disability to mental illnesses only,
or whether it is inclusive of other mental health problems; and whether
complaints require proof of psychiatric disability, and if so, what kind
It is possible that in some
cases expert evidence and complex argument might be required to establish
that a person has a "disorder, illness or disease that affects a person's
thought processes, perception of reality, emotions or judgment or that
results in disturbed behaviour"; but in practice to date both in HREOC
complaint handling and in the courts (even in the Marsden case
regarding addiction which might be regarded as an exception) the major
issue has been whether or not a person has been discriminated against
on the basis of a disability, rather than what is a disability.
Extension of concept
Several submissions recommend
extension of the definition of disability to include sources of social
disadvantage such as disturbed emotions because of past experiences of
indigenous people (s59), and homelessness (s68, 108).
Although there are grounds
of discrimination not presently covered by antidiscrimination law it does
not appear appropriate to HREOC to recast the DDA to provide an all purpose
catch all discrimination law.
It is not clear how disturbed
emotions because of past experiences could be defined as a disability
where no identifiable disorder has resulted (noting that if a psychological
or other disorder results then the DDA does apply). If the definition
of disability were to be extended in this way regarding indigenous people's
specific experiences it is not clear why it would not also be similarly
extended regarding people who are affected by other experiences but who
may or may not be indigenous (for example combat veterans whether indigenous
or not, or parents whether indigenous or not who have lost children in
traumatic circumstances but who may not have an identifiable disorder).
Defining homelessness as being
in itself a disability on the basis that it is frequently accompanied
by, caused by or causes disability however does not seem any more sustainable
than defining old age, or status as an indigenous person, or any other
source of social disadvantage or disadvantaged health status as being
in itself a disability.
Recognition of depression,
addictive disorders and obesity
Some submissions also call
for specific recognition of depression, addictive disorders and obesity.
The existing DDA definition
already covers depression, addiction and obesity, as is noted in explanatory
material and complaint reports available on HREOC's website and (in the
case of addiction) in Federal Court case law.
or imputed to people with disabilities
One submission (s74) recommends
adding to the definition of disability a characteristic imputed to people
with a disability to ensure that issues of discrimination based on behaviour
are addressed. HREOC does not view this as being able to be considered
in isolation from reviewing the operation of the definitions of discrimination
and their relationship to defences such as unjustifiable hardship - since
some forms of behaviour actually related to some instances of disability,
or incorrectly imputed to be related, must be accepted as requiring some
differences in treatment.
Some submissions (for example
s76) argue that the requirement for assistance animals to be trained should
be removed as it excludes therapeutic pets and animals where a training
regime is difficult to identify.
HREOC agrees there is a need
for review in the area of assistance animals but does not agree with a
proposal to remove the requirement that animals be appropriately trained
to assist a person with a disability. Such a requirement appears essential
to balance rights of assistance dog users with rights of other members
of the community including children, older people and people whose disability
renders them particularly vulnerable to attack by dogs whose behaviour
cannot be guaranteed with sufficient certainty.
Duty to make reasonable
Numerous submissions support
specification in the DDA of a positive duty to make reasonable adjustments
to accommodate needs of people with disabilities and also of carers, as
is also supported in HREOC's initial submission. Submissions point to
the range of adjustments which may be relevant - for example flexible
work arrangements for people with a mental illness (s150) rather than
being confined to issues of work premises and equipment.
/ most integrated manner of service provision possible
Several submissions (s13,
112) recommend more detailed specification of what constitutes discrimination
in disability services. Some submissions raise possibilities in this area
by reference to the Americans with Disabilities Act which requires services
to be provided in the most integrated manner and least restrictive setting
HREOC agrees that consideration
of additional elements in the definition of discrimination may be useful,
and may provide a means of clarifying the application of the legislation
to some situations (such as disability accommodation) more rapidly than
the process of developing disability standards. As with an express provision
for reasonable adjustment such a provision would provide useful affirmation
of a principle already implicit in the concept of discrimination rather
than extending the legal reach of the DDA. This proposal would appear
applicable to all areas covered by the DDA rather than only to specialist
disability services and facilities. However, it might assist particularly
in dealing with concerns regarding the application of the concept of special
measures, including perceptions expressed in submissions and hearings
that the DDA cannot be used at all regarding specific disability facilities,
as well as in dealing with more substantial legal issues of finding appropriate
comparators to establish discrimination regarding these facilities.
in direct discrimination
One submission (s74) notes
that the reference to circumstances which are "not materially different"
in the definition of direct discrimination may lead to unproductive and
time consuming arguments.
It must be agreed that this
phrase does not provide any clear test of what circumstances are or are
not materially different so as to justify different treatment. This phrase
cannot be regarded as providing a defence for justifiable differences
in treatment where the disability itself is regarded as making a material
difference, since the Federal Court decision in the Dopking case
holding that the prohibited ground of discrimination could not itself
be the material difference in circumstances for the purposes of the equivalent
provision of the Sex Discrimination Act. Justifiable distinctions have
to be defended by other means - either by reference to concepts such as
unjustifiable hardship and inherent requirements, or to the reasonableness
limitation in the concept of indirect discrimination where that is applicable.
In these circumstances it is not clear what useful work the reference
to material difference does which would not be done by a simpler reference
to "the same or similar" circumstances.
proportion in indirect discrimination
This submission also argues
that the reference in the definition of indirect discrimination to a "substantially
higher proportion" is problematic. It is not clear that this test has
in fact caused any substantial problems in practice but as noted in our
initial submission HREOC agrees that simplification of the definition
of indirect discrimination along the lines of the revised Sex Discrimination
Act definition could be useful.
Doubling up of concepts
of reasonableness and unjustifiable hardship
Several submissions and evidence
in transcripts of hearings refer to confusion in the same issues being
covered by the concept of reasonableness in the definition of indirect
discrimination and the concept of unjustifiable hardship and refer to
a doubling up of defences with differences in burden of proof at each
stage. In HREOC's view these arguments have had little practical significance
under the DDA to date. Complainants have not, in practice, had to bring
evidence negating in advance each element of a possible unjustifiable
hardship defence to pass the threshold of showing a case of indirect discrimination
either in lodging complaints with HREOC, in HREOC's former tribunal process
or in court. That said, a major aim in attempted development of employment
standards and current development of education standards has been to better
present the relationship between concepts of reasonableness, reasonable
adjustment and unjustifiable hardship.
Human rights and discrimination
A number of submissions note
in common with HREOC's initial submission that the DDA does not perform
the role of all purpose human rights legislation. Some submissions call
for enhanced rights to receive necessary supports or treatment (for example
s168 in relation to inadequate early intervention services for autistic
One submission (s104) refers
to the statement in the Productivity Commission's Issues Paper that "
a lack of support services, such as funding for a particular therapy or
device (such as a wheelchair), may prevent access to employment or education,
effectively discriminating against a person with a disability" and appears
to interpret this as meaning that, in contrast to advice provided by HREOC
to the author, the Productivity Commission views the DDA as covering this
HREOC does not consider that
in this respect the Productivity Commission is in fact presenting a different
view from HREOC. HREOC's initial submission also indicates that gaps or
limitations in support and services have discriminatory results, but notes
that the DDA does not define all of these situations as involving unlawful
discrimination. The limited implementation in Australian law of the rights
of children with disabilities as recognised under the Convention on the
Rights of the Child is not simply a matter of interpretation by HREOC,
or of a lack of recognition of and agreement with the views presented
in this submission regarding the importance of early intervention and
support for children with autism, but a matter of the limited extent of
the laws passed by the Parliament.
One submission (s145) argues
that the DDA should prohibit competitive tendering for disability services.
It is not clear from this
submission, however, why competitive tendering is thought to be inherently
adverse to the interests of users of disability services, rather than
potentially providing an additional element of accountability, with concerns
arising rather from use of competitive tendering only as a means of reducing
costs without sufficient focus on improvement of outcomes. Nor is it clear
how competitive tendering in the disability services area could be defined
as discriminatory given the more general application of this approach
to public services.
Submissions by organisations
and individuals concerned with multiple chemical sensitivities or environmental
illness (s152, 155,160,167) raise concerns regarding use of pesticides
and toxic materials and assert that these prevent access to facilities
including health care.
While hazardous materials
clearly may present access barriers as well as causing disability in some
cases - for example cigarette smoke both causes cancer and related disability
and presents access barriers to people with asthma - HREOC does not view
the DDA as able to provide the principal means of regulating hazardous
substances in the environment or in workplaces rather than these issues
being dealt with principally by health, environmental and workplace safety
of defined areas only
One submission (s93) criticises
the DDA for only applying in defined areas and thus implicitly permitting
discrimination in other areas.
It is correct that the DDA
only applies in defined areas. HREOC's submission indicates some possibilities
for expanded coverage. The DDA does not contain an equivalent of the general
prohibition of discrimination in section 9 of the Racial Discrimination
Act, which states:
"It is unlawful for a person
to do any act involving a distinction, exclusion, restriction or preference
based on race, colour, descent or national or ethnic origin which has
the purpose or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing, of any human right or fundamental freedom
in the political, economic, social, cultural or any other field of public
Such a provision could be
considered for the DDA. However, some cases under the RDA have raised
problems regarding the effective scope of a provision which does not define
the human rights protected. These issues could present additional difficulties
in the disability area, given that the DDA is not based on a specific
Convention such as the Convention on the Elimination of Racial Discrimination
which the RDA implements and which provides a non-exhaustive list (in
its article 5) of the human rights in respect of which discrimination
is to be prohibited. Inclusion of an equivalent of RDA section 9 in the
DDA might also be criticised as giving an impression of greater protection
of human rights than it would actually provide - since many disability
issues clearly require allocation of resources and more specific regulatory
and enforcement action rather than being sufficiently addressed by a simple
legal proclamation of legal rights. This is not, however, to argue that
such a general provision should not be considered and discussed further.
Several submissions (s62,
101) call for the DDA to cover vilification on the grounds of disability.
HREOC does not have a definite view at this point on whether such a provision
would be within Commonwealth constitutional power and on how such a provision
might operate but agrees that it merits further consideration.
One submission (s74) argues
that DDA section 37 should apply directly to students harassing students
as well as to educational institutions.
It is not clear how a direct
harassment provision of this kind would operate regarding younger school
students in particular. The draft education standards instead take the
approach of giving clearer recognition to the duty of educational institutions
to take effective measures to prevent harassment.
The same submission argues
that workplace disability harassment should be covered regardless of the
employment status of the harasser or person harassed. Similarly it proposes
simplified coverage of harassment in the goods and services area apparently
regardless of whether the harasser is provider or customer.
The drafting proposed in this
submission is clearer than the existing provisions. It is also wider in
its coverage: it would apply to harassment of, or by, workplace participants
such as volunteers and work experience students, as well as people who
are at a workplace as customers or visitors. For such a provision to be
introduced there would need to be consideration of the constitutional
basis of provisions applying beyond the employment relationship or similar
occupational relationships, although in HREOC's view international concern
regarding disability and human rights is sufficient for this purpose.
There would also need to be consideration of what implications there might
be for duties of employers regarding conduct by people in the workplace
who are not employees. It is notable however that the Queensland Anti-Discrimination
Commission (s119) which has to administer a general harassment provision
also supports inclusion of such a provision in the DDA, rather than expressing
any concerns about the practicality of such a provision.
Other areas of prejudice
One submission (s105) argues
that the DDA fails to address prejudice by parents of other students in
classes including a child with a disability, including in relation to
requesting that schools remove children with disabilities or in removing
their own children to other schools.
It is not credible to think
that a law such as the DDA could or should restrict the ability of parents
to move their children to another school for whatever reason. Contrary
to the impression that might be gained from this submission, the DDA does
cover incitement to do an unlawful act. HREOC however would not see this
provision as properly applicable to reasonable actions undertaken in good
faith to discuss difficulties in implementation of inclusive education.
Deletion of hardship
HREOC does not agree with
recommendations in some submissions (s55, 64) to remove the defence of
unjustifiable hardship from the DDA, since as indicated in our initial
submission some means of managing competing rights and claims is needed.
Rather HREOC agrees with other submissions (for example s77) which support
the flexibility provided by unjustifiable hardship but call for increased
funding or incentives for disability adjustments to reduce the scope for
this defence to operate and thereby to reduce both need for litigation
and the hardships presently experienced by people with disabilities.
One submission (s108) argues
that the defence of unjustifiable hardship should be removed on the basis
that exemptions can be applied for, that this would shift the onus of
justifying discrimination, and that hardship defences will rarely succeed
but simply invite hostility.
As previously indicated the
temporary exemption mechanism is not in HREOC's view available or appropriate
simply to certify unjustifiable hardship. It may also be unrealistic to
expect at least in the case of smaller organisations that situations requiring
a defence would be foreseen sufficiently in advance to make an application
for exemption. HREOC regards conditional exemptions based on proactive
processes as a potentially more efficient way to manage removal of discrimination
for large organisations or on a system or industry basis, but would not
favour as efficient or effective an approach requiring applications from
many thousands of small employers for example.
defence less final / winner take all
A number of submissions (s74,110)
call for changes to the unjustifiable hardship defence so that such a
defence should not operate in a winner take all or final manner and should
where possible trigger a requirement to apply for an exemption and/or
lodge an action plan.
It is not clear how the DDA
could empower a court to make orders against a party who has been found
not to have done anything unlawful. HREOC endorses however the aim of
ensuring that as far as possible the DDA promotes positive action. The
reference to action plans in section 11 on unjustifiable hardship was
included with this intent.
The unjustifiable hardship
clause in the accessible public transport standards (clause 33.7), which
was intended to have the same legal effect as DDA section 11 but to draw
out relevant factors more clearly, includes a number of provisions intended
to promote positive actions being taken as far as possible both by requiring
the possibility of actions to achieve access to be considered before a
defence is accepted, and by ensuring that positive efforts receive credit.
This clause includes the following factors to be referred to:
(l) whether compliance with
a requirement of these Standards may reasonably be achieved (including
by means of equivalent access as provided for in sections 33.3 to 33.5)
by less onerous means than those objected to by a person or organisation
as imposing unjustifiable hardship;
(m) any evidence regarding
efforts made in good faith by a person or organisation concerned to
comply with the relevant requirements of these Standards;
(n) if a person or organisation
concerned has given an action plan to the Commission under section 64
of the Disability Discrimination Act 1992 - the terms of that
action plan and any evidence regarding its implementation;
(o) the nature and results
of any processes of consultation, including at local, regional, State,
national, international, industry or other level, involving, or on behalf
of, an operator concerned, any infrastructure providers as relevant,
and people with a disability, regarding means of achieving compliance
with a relevant requirement of these Standards and including in relation
to the factors listed in this section;
(p) if a person or organisation
seeks a longer period to comply with these Standards, or a requirement
of these Standards, than is permitted by the preceding sections on Adoption
and Compliance - whether the additional time sought is reasonable,
including by reference to the factors set out in paragraphs (a) to (o)
above, and what undertakings the person or organisation concerned has
made or is prepared to make in this respect.
(4) If a substantial issue
of unjustifiable hardship is raised having regard to the factors listed
in paragraphs (3) (a) to (p), the following additional factors
are to be considered:
(a) the extent to which
substantially equal access to public transport services (including in
relation to equality of independence, amenity, availability, comfort,
convenience, dignity, price and safety) is or may be provided otherwise
than by compliance with these Standards;
(b) any measures undertaken,
or to be undertaken by, on behalf of, or in association with, a person
or organisation concerned to ensure such access.
This longer version of the
unjustifiable hardship clause was criticised by some parties as providing
additional defences beyond the scope of DDA section 11, although it fairly
clearly does no such thing (given that section 11 would also allow and
require any of these factors to be taken into account if relevant). It
may be appropriate to consider whether any similar spelling out of the
relevance of positive compliance efforts to an unjustifiable hardship
defence would be appropriate for the DDA generally.
Several submissions (s55,
64, 78) criticise the presence in the legislation of exemptions generally
and call for their removal on the basis that any defences should be required
to be established case by case. Other submissions criticise particular
exemptions and call for their removal or restriction. Most exemption provisions
are discussed in HREOC's initial submission, but not all. Comments on
exemptions discussed in submissions are as follows:
Domestic duties in
the employer's home
A number of submissions recommend
removal of the exception in section 15 for domestic duties in the employer's
home (which was not discussed in HREOC's initial submission) Without necessarily
supporting its removal, HREOC agrees there is a need for review of the
extent of such an exception.
Disposition of land
by will or gift
One submission (s74) raises
concerns that the exception for discrimination in disposition of land
by will or gift operates not simply to safeguard freedom of disposition
for donors or testators but also protects discrimination by executors
or administrators. This issue was not discussed in HREOC's initial submission.
HREOC agrees that review of the basis and breadth of this exception would
The special measures exception
is discussed in HREOC's initial submission.
Insurance and superannuation
In relation to insurance and
superannuation, HREOC continues to take the view that because the nature
of at least most forms of insurance depends on making distinctions, an
exception for reasonable distinctions needs to be maintained (rather than
insurers being left to rely solely on an unjustifiable hardship defence).
Some submissions (such as s72) while accepting the need for a reasonableness
exception call for this to be restricted only to cases based on actuarial
or statistical data. In HREOC's view however it is possible that there
may be some reasonable insurance distinctions where data is lacking. The
need for certainty in this area appears to relate rather to further specification
of what is reasonable, including potentially through standards or industry
codes and procedures.
One submission (s74) recommends
that prescribed laws should be required to be reviewed regularly. It may
be appropriate to consider whether the power to prescribe laws should
be for five years at a time similarly to the temporary exemption power
to ensure that the reasons for prescription remain current and that other
laws provide for access and equity as far as is feasible (which may change
over time including with technical developments).
One submission (s72) recommends
that the prescribed laws exemption be amended to further clarify that
only prescribed laws are exempt. HREOC however regards the existing wording
as being as clear as is possible on this point. The concern in this submission
is that complaints are nonetheless terminated as not involving an unlawful
act in some situations involving laws which are not prescribed.
This arises where another
law creates a power to act and gives no discretion but to act in the manner
complained of. For example, there is no unlawful discrimination in refusing
to pay medical or other benefits in respect of a particular disability
if the legislation giving the power to pay the benefit provides an exclusive
list of disabilities in respect of which the benefit is payable and does
not include the disability which the person complaining has.
Related to this is the point
that the DDA renders unlawful discrimination in the administration of
Commonwealth laws and programs. It does not render unlawful or override
discrimination in the content of laws.
The situation is different
in cases where the other law is not the source of the power which the
complainant is seeking to have exercised. In these cases discriminatory
actions in compliance with the other law can be complained about, and
will be unlawful unless one of the defences under the DDA applies - either
the prescribed laws exemption, or other exceptions including those regarding
inherent requirements in the employment context or unjustifiable hardship.
For example, a property owner has power to admit people to his or her
property or refuse admission. If admission is refused because a person
is accompanied by an assistance animal and because health regulations
prohibit animals on the premises concerned, a complaint can still be made.
The property owner would only be able to rely with certainty on compliance
with the health regulation if it were a prescribed law. However, a defence
would also be possible that to admit the animal and risk public health
would impose unjustifiable hardship. These arguments may be uncertain
in their operation, and it may be preferable for discriminatory provisions
in other laws to be prescribed if they are justifiable and removed if
they are not.
The DDA does provide a mechanism
for HREOC to inquire into and report on the consistency of other Commonwealth
laws with the objects of the DDA. Notwithstanding limited resources HREOC
would welcome suggestions regarding laws requiring review.
One submission (s78) recommends
removal of the exception for measures reasonably necessary to protect
public health in relation to infectious diseases. However, it is not clear
how such measures might be permitted in the absence of such a provision,
or how the DDA could operate in a defensible fashion if it did not permit
such measures. HREOC does not support removal of this exception.
In relation to charitable
instruments, as noted in HREOC's initial submission this exemption
has no apparent practical importance and may be misleading, so that its
removal, while not a high priority, could be supported accordingly.
Some submissions (including
s78) recommend removal of the exemption regarding telecommunications.
This exemption expired in 1996. Deletion of this exception would have
no substantive effect.
Pensions and allowances
Retention or removal of the
exemption regarding pensions and allowances, as discussed in HREOC's
initial submission, would make no apparent substantive difference since
the DDA does not apply to the terms of the Social Security Act, but only
to its administration.
HREOC agrees that the exemption
regarding anything done in relation to administration of the Migration
Act should be reviewed.
Combat duties and peacekeeping
HREOC agrees that the concept
of inherent requirements ought to be regarded as sufficient in the area
of combat duties and peacekeeping exemptions.
does not agree with assessments in some submissions that temporary exemptions
delay actions which would have occurred as soon or sooner in any event.
In particular, this is not an accurate description of events in relation
to accessibility of the South Australian and Western Australian public
transport systems or accessibility of the
tram system, where the exemption process clearly assisted in achieving
transition towards accessible systems.
HREOC is familiar with but
continues not to be persuaded by the views of some organisations regarding
the exemption granted to the Olympic Roads and Transport authority regarding
disposition of accessible buses. The purpose of that exemption was to
avoid creation of disincentives to acquisition of accessible vehicles
- by preventing operators of accessible vehicles having complainants and
discrimination agencies rather than transport operators decide on which
routes such vehicles should operate. For that reason that decision was
not conditional on implementation of further measures to achieve access,
as all other exemptions in the transport area have been. HREOC continues
to regard the decision to grant an exemption in that case as correct and
as not in any way removing the legitimacy of the temporary exemption mechanism
as a means for achieving the objects of the DDA. As indicated in relation
to development of standards, HREOC agrees in principle with submissions
that there should be a requirement for consultation before granting exemptions
(consistent with HREOC policy and practice under the DDA) so long as such
a requirement does not prescribe the form of consultation to be conducted.
As indicated in its initial
submission and for the reasons given there HREOC does not agree with views
in a number of submissions (for example s78) that temporary exemptions
should only be available to organisations which lodge action plans.
Numerous submissions refer
to problems in using individual complaints to achieve broad social change.
Legal recognition of individual
rights is of course basic to the whole legal system rather than being
an unusual feature of discrimination law. As with other areas of the law,
however, the DDA does recognise the need for individual rights based
approaches to be supplemented by other regulatory mechanisms.
Limitations of a complaint
based approach are noted in HREOC's initial submission and other submissions.
However, it would be going too far to say that the DDA requires discrimination
to be eliminated instance by instance. As recognised in other submissions
(for example s. 70, 101, 119) some complaints under the DDA have in fact
been effective in establishing wider precedents in law and (more to the
point) in practice. In particular, the number of key complaints which
have driven the process of making transport systems accessible in practice
and the development of national standards would be fairly stated as a
handful or two handfuls even though, or because, these represented millions
of similar complaints which could have been made. HREOC agrees however
with the need to consider means to make access to remedies under the legislation
The complaint based nature
of the DDA is most limiting in HREOC's assessment where the result in
a single case is less able to drive policy change - in particular in areas
such as employment where the number of potential respondents to influence
is very much larger than in transport or telecommunications, or in education
where issues to be addressed in providing equality of access and participation
are more complex and varied than in providing access to transport or buildings.
Evidence of students and parents
finding use of the complaint process too daunting is detailed in submission
112. HREOC notes that the material referred to here does not reflect the
views and experience of all complainants, as indicated in outcome statistics
and HREOC's surveys of complainants, but accepts that there is a need
to pursue alternative approaches to change being driven by individual
complaints by parents or students, including more effective use of the
legislation by representative and advocacy bodies and systemic changes
through standards and/or conditional exemption processes.
Lack of determination
power without going to court
A number of submissions refer
to the loss of HREOC's power to conduct hearings and make determinations
on complaints as providing a barrier to use of the DDA and as making use
of State legislation preferable.
This issue clearly does influence
some complainants in their choice of jurisdiction, although some organisations
raising this issue as a reason for limited use of the DDA do not appear
to have made extensive use of State based remedies for discrimination
either. Exercise of judicial power under Federal law only by judicial
bodies is an unavoidable feature of the constitutional position. The introduction
of the Federal Magistrates Service provides an attempt to reduce the consequences
of this in costs and formality.
Numerous submissions raise
the prospect of costs being awarded against unsuccessful complainants
in court as a barrier to use of the legislation.
HREOC's reviews of complaint
experience since the introduction of the Human Rights Legislation Amendment
Act 1999 indicates that overall the rate of use of the DDA and the rate
of conciliation of complaints has not showed significant adverse change
in the move from HREOC's costs free tribunal jurisdiction to the system
where recourse following attempted conciliation is directly to the court,
despite costs being awarded against unsuccessful complainants in 50% of
cases by the Federal Court and 64% of cases by the Federal Magistrates
Service in the first 2 years of the new jurisdiction. Comparative data
in fact indicates that in 2001 there was a rise in the percentage of complaints
that were conciliated, an increase in the conciliation success rate and
a decrease in the percentage of complaints that were withdrawn. This data
suggests that the procedural changes have not resulted in complainant
disadvantage due to increased respondent resistance to conciliation and
decreased complainant bargaining power in conciliation. (More detailed
information is contained in Change and Continuity: Review of the Federal
Unlawful Discrimination Jurisdiction, available at http://www.humanrights.gov.au/legal/review/index.html,
and Review Of Changes To The Administration Of Federal Anti-Discrimination
Law: Reflections on the initial period of operation of the Human Rights
Legislation Amendment Act (No.1) 1999 (see www.humanrights.gov.au/complaints_information/review/index.html.)
It should also be noted that
only a small proportion of complaints proceed to court, and that a complainant
is not committed to taking a matter on to court by making a complaint
to HREOC. Potential costs in the small number of matters that are taken
to court by complainants thus do not provide an adequate explanation for
limited use by advocacy organisations of the DDA at the HREOC stage where
costs do not apply.
HREOC agrees however that
there is a need to ensure that the prospect of costs against unsuccessful
complainants does not deter matters of public importance being brought
before the courts under the DDA.
A number of submissions support
a role for HREOC itself in bringing complaints to the court as a response
to this issue. It needs to be noted however that HREOC's current budget
would not permit it to risk costs in more than a small number of cases
in any year, and that HREOC does not see a complaint initiation power
for HREOC as substituting for effective provision for and use of complaint
procedures by and on behalf of people with disabilities. A complaint initiation
power for HREOC would thus not remove need for consideration of the impact
of the potential for costs on the effectiveness of the legislation.
In the context of debate on
Human Rights Legislation Amendment Bill number 1 HREOC accepted
that discrimination law matters could not be completely distinguished
from other matters arising before federal courts which might have human
rights implications, such that discrimination cases should be a no costs
jurisdiction while other matters with significant human rights or other
public interest content but arising under other laws would be subject
to general rules in relation to costs.
However, HREOC agrees that
there should be scope for review of the impact of the potential for costs
to be awarded, and for options to reduce this impact in public interest
matters. This need not involve acceptance that each and every disability
discrimination complaint is of such significance that costs should not
be an issue, or even that costs should only apply in cases where the complaint
is found to be vexatious or lacking in substance. HREOC agrees with the
view in submission 112 that only a partial solution would be provided
by the ALRC's recommendation for courts to take public interest considerations
into account in exercising discretion regarding costs, since parties would
still not know in advance how the discretion would be exercised. As indicated
by submission 102, however, other possibilities might be found, for example
based on certification by or under the authority of the court at an early
stage that a case involves an issue of public importance such that normal
costs rules ought not to apply. Such certification might be informed by
information from HREOC or the Attorney-General.
Time pressure on complainants
following termination of complaint by HREOC
One submission discusses pressure
on complainants as a result of the 28 day time limit for lodging a federal
court application following notice of termination of a complaint. An alternative
procedure based on NSW Court of Appeal processes is recommended, with
28 days for lodging a holding summons and 3 months for a full application.
As indicated in a number of
submissions there are strong reasons to finalise discrimination complaints
with as little delay as possible. It may however be regarded as anomalous
that while the HREOC Act provides a "soft" time limit of 12 months for
lodging a complaint with HREOC (soft in the sense of only providing a
discretion for HREOC to terminate complaints, and relating to the procedurally
simple and cost free step of making an initial complaint) there is a hard
limit of 28 days for a step which is more demanding in terms of legal
process and in relation to the decision whether to accept the risk of
a costs order. There might thus be merit in considering the proposal for
extension on the time limit for lodgement of complaints with the court.
However, as with the issue of costs it may be difficult to establish different
rules for discrimination matters from the rules applying to other federal
Complaints by representative
Several submissions (including
s59, 68, 119) propose that representative organisations be able to make
complaints without needing to do so on behalf of a particular aggrieved
There is already provision
in the HREOC Act for representative complaints to be made on behalf of
a class of aggrieved persons without needing to identify particular individuals.
Representative organisations have not made extensive use of this procedure
to date. As noted by one peak disability organisation, a major limitation
on the DDA having broader impacts is in the preparedness of disability
advocacy organisations and representative bodies to use the legislation
(s71). HREOC would be interested to see further discussion of how capacity
for organisations to complain in their own right would alter this experience.
Direct standing for organisations with an interest in disability discrimination
issues in their own right rather than as representatives would raise some
procedural issues requiring careful consideration, given that all areas
of civil law impose some standing requirements to commence proceedings.
There could also be issues of how to ensure that outcomes of such complaints
appropriately represented the views and interests of people affected .
Complaints or court
proceedings initiated by HREOC
Numerous submissions support
reinstatement of HREOC's ability to initiate complaints or court proceedings
itself, pointing to comparable powers held by other agencies in
including the ACCC, and to functions of discrimination agencies overseas.
As noted elsewhere, some concerns are also expressed (for example in s126)
regarding possible conflict of this role with the conciliation role. HREOC
agrees that this concern would need to be addressed in considering reinstatement
of a self-start power.
Delays in complaint
Several submissions refer
to protracted complaint processes as presenting a barrier to use of the
recognises that even a period of a few months to resolve a complaint (in
accordance with HREOC targets for the majority of matters to be resolved
within 6 months) can be problematic when a person's employment or education
in particular is at stake. However, it is possible that submissions on
this point relate either to the very small number of DDA complaints which
take over twelve months to finalise, or else to experience with complaint
handling in some State jurisdictions, where there are or have been substantial
backlogs resulting in delays before investigation or attempted conciliation
of matters commences. In some State jurisdictions there are further significant
delays at the tribunal stage. This does not reflect overall experience
with complaint handling under the DDA by HREOC.
complaints under the DDA handled by HREOC in 2001-02, for example, 92
percent of matters were finalised within 12 months and the average time
from receipt to finalisation of a complaint was seven months. HREOC does
not have a statutory time limit for commencing investigation as some jurisdictions
do but in recent years complaint allocation within HREOC has met or bettered
the statutory targets which exist in other jurisdictions. While, as noted
in HREOC's initial submission, it is understandable for some individuals
to be daunted by even a relatively user-friendly legal process, or frustrated
by processes which are relatively speedy in the context of the legal system
overall in dealing with urgent issues, some community discussion appears
to overstate the barriers which exist to effective use of the complaint
One submission (s87) refers
to barriers in accessing a Sydney based complaint service, including perceptions
that Sydney based staff may not understand circumstances of regional areas;
perceptions of cost of access despite freecall provision etc; and difficulties
for people using communication aids.
Measures by HREOC to ensure
access across Australiato the complaint process are discussed in HREOC's
Although the Queensland Anti-Discrimination
Commission and the NSW Anti-Discrimination Board do maintain a small number
of regional offices, most people outside capital cities need to use an
antidiscrimination agency which is not based in their own town in any
event, even if they use the State or Territory legislation. This would
remain the position if co-operative arrangements for complaint handling
were reinstated, at least so long as all jurisdictions use specialist
anti-discrimination agencies for complaint handling, which are not realistically
likely to achieve the same degree of direct local presence as more generalist
parts of the justice system such as local courts.
Many of the barriers NEDA
identifies to individuals from non-English speaking backgrounds using
the complaint process are also identified in other submissions as affecting
other members of the disability community (which of course does not lessen
the importance of addressing these barriers).
HREOC does undertake access
and equity planning and regular review with a particular focus on its
complaint processes. HREOC established a complaints access working group
in 1999 to improve the accessibility of the complaint handling service.
HREOC has resources available
in community languages and does provide access to interpreting and translating
services where required in complaints processes. HREOC would welcome more
detailed information and suggestions on current limitations perceived
regarding assistance in formulating complaints and regarding information
Use of the legislation
by women with disabilities
One submission (s139) points
to indicators of particularly disadvantaged status for women with disabilities
and argues that these factors make barriers to use of the complaint process
more acute for women with disabilities. It also criticises lack of female
representation in HREOC's disability policy unit.
Statistics on gender of complainants
under each Act administered by HREOC are presented in HREOC's annual reports.
For 2001-02 there were 190 complaints by individual females compared to
254 complaints by individual males, reflecting a degree of disparity but
by no means a complete lack of use of the legislation by women.
It is correct that at present
none of the three and a half staff of HREOC's disability policy unit or
the Acting Commissioner is female. However, the Commissioner or Acting
Commissioner has been female for six out of the first ten years of the
legislation, and for a substantial part of that time women represented
an overall majority of the staffing of the unit. Women have been in the
majority in HREOC's complaints and legal sections at most points during
the life of the DDA, and from the 1999 legislative amendments until May
2003 a female HREOC President was in charge of handling complaints under
the DDA. HREOC has had a particular policy focus on issues of access to
telecommunications and issues of sterilisation identified by community
organisations as issues particularly affecting women with disabilities.
HREOC would support additional focus on disability in services specifically
directed to women.
Usefulness of complaint
process to people with intellectual disabilities
A number of submissions (for
example s117) raise concerns regarding the usefulness of the complaint
process to people with intellectual disabilities and make recommendations
for complaints by HREOC and directly by representative bodies.
When the DDA was introduced
the provision for complaints on behalf of a person aggrieved by discrimination,
or on behalf of a group or class of persons aggrieved, was seen (together
with the provision for HREOC to self-initiate complaints) as a possible
means for dealing with barriers likely to arise in particular for people
with intellectual disabilities and for people in positions of dependence
or vulnerability in relation to an alleged discriminator. Further discussion
of reasons for very limited use of the capacity which already exists for
complaints by representatives of or advocates for people with intellectual
disabilities would be useful.
Investigation of complaints
One submission (s76) calls
for a review of the effectiveness of HREOC's complaint investigation powers
and comments that HREOC should not be simply a conduit for correspondence.
HREOC's manual and regular
training on complaint investigation emphasises the need for an appropriate
investigation in each case. It is not clear to HREOC that there is any
inadequacy in the powers available to HREOC. HREOC has adopted a range
of investigation approaches including the application of a public inquiry
approach in a small number of cases. The scale of investigation conducted
is more likely to be limited by the need to achieve a resolution of as
many complaints as possible within a reasonable time rather than dedicating
all resources to investigating one matter for an extended period in the
manner of a dedicated Royal Commission. It also needs to be emphasised
that there are many matters where no amount of investigation by any lawful
means will produce the decisive evidence sought (for example on the true
reason for an allegedly discriminatory decision).
Use by HREOC of powers
to decline or terminate complaints
Some submissions (for example
s88) refer to greater use of the power to decline or terminate complaints
by HREOC compared to State agencies as a disincentive to use of the DDA.
HREOC does not have anywhere
near the delay in allocating matters for investigation and conciliation
that is experienced with some State authorities and has a lower rate of
withdrawal by complainants as a consequence. One reason for this is the
more extensive and systematic use by HREOC of the power to terminate complaints
which lack substance, do not raise an issue of unlawful discrimination,
are better remedied elsewhere or do not have reasonable prospects for
resolution by conciliation. Whatever the level of resources provided,
HREOC regards management of complaint functions in this manner as essential
in order to offer an effective service. This includes focussing on complaints
where results may be achieved and avoiding waste of time and resources
of the parties to complaints, as well as issues of abuse of jurisdiction
or of bias which could be seen to arise in proceeding with complaints
which lack substance. Terminating complaints where there is no reasonable
prospect of conciliation provides the parties with the opportunity to
have access to the courts for effective resolution of disputes without
Requirements for conciliation
One submission (s56) expresses
concern that inaccurate figures may be presented in complaint processes
to substantiate unjustifiable hardship, and argues that figures should
have to be in sworn statements. It also argues for guidelines in legislation
on the nature of the conciliation process.
Formal requirements for material
that can be presented in a conciliation conference do not appear consistent
with the nature of the process as one which is informal and where essentially
the parties are in charge of whether they will agree on an outcome and
on what basis. Conciliation processes do not involve determination by
HREOC of unjustifiable hardship issues on the basis of evidence presented
as would be the case in a judicial process.
One of the advantages of conciliation
processes is the ability to adapt the process according to the nature
of the matter rather than having completely set procedures to apply -
for example some conciliations occur by phone or exchange of letters while
others may involve a series of face to face meetings; another area of
possible variation is that while conciliation conferences are generally
conducted in private, with the agreement of the parties the process could
include other approaches such as a public forum.
HREOC already provides information
for parties and potential parties to complaints on what to expect in the
conciliation process. Legal requirements including those regarding privacy
and natural justice already apply to HREOC staff involved. If principles
applying to conciliation and further description of what the process is
were to be included in legislation (presumably in the HREOC Act which
now contains the relevant complaint handling provisions) HREOC would be
concerned to ensure that this did not remove existing flexibility in adapting
the process appropriately to the circumstances of different cases.
Several submissions express
disappointment with HREOC's conciliation role on the basis that complainants
had expected HREOC to act as an advocate for them.
HREOC is aware that a number
of complainants are surprised or disappointed when they find that HREOC
staff including conciliation officers cannot act as advocates for them,
and supports the importance of resources for independent advocacy.
Conflicting HREOC roles?
One submission (s78) sees
a conflict between current HREOC roles as a source of advice on the legislation
and as a mediator of complaints, and recommends that this conflict be
terminated through the removal of the conciliation role.
HREOC does not accept that
these roles are conflicting.
First, there is administrative
separation between conciliation of complaints (by specialist conciliation
and investigation staff under the direction of HREOC's President) and
the major public awareness functions, including development of guidelines
and participation in standard setting by the Commissioner and policy staff
under his direction.
More fundamentally, there
is not a conflict between advising on what the legislation means and mediating
impartially regarding the application of the legislation to facts which
may be disputed between parties to complaints. In most cases conciliation
involves reaching an agreement without admission of liability, so that
a definite determination of the precise effect of the law in the circumstances
does not occur. However, one of the roles of a conciliator, which HREOC
does not see as involving bias or conflict of roles, may be to provide
the parties with information on possible or probable outcomes if an agreed
resolution is not reached, since conciliation under the DDA occurs against
a background of legal rights and responsibilities rather than in a vacuum.
Concerns are raised in one
submission that HREOC capacity to initiate complaints could compromise
the confidence of parties in impartiality of conciliation proceedings.
Clearly this is a significant
concern which needs to be addressed in considering restoration of capacity
for HREOC or the Commissioner to initiate complaints. The separation which
now exists between the complaint role of the President and the roles of
the Commissioner may provide part of a response to this concern. It must
be conceded that there could be difficulties in HREOC seeking to conciliate
complaints brought by a Commissioner, although this would not prevent
such complaints proceeding to the court either for decision or mediation
there. If the Commissioner were in effect acting as a representative complainant
on behalf of people with disabilities in such complaints there would also
be a need for appropriate processes (which might include public inquiries
or consultations) to ensure that outcomes sought reflected the views and
interests of the people represented.
Enforcement of conciliation
One submission (s56) calls
for measures to improve enforceability of conciliation agreements. It
is not clear however what possibilities there are in this respect. Conciliation
agreements are legally enforceable by the parties like other contracts.
If the terms of a conciliation agreement are not fulfilled it is also
possible to make a further complaint and have access to judicial remedies
by that means.
Publicity for conciliation
One submission (s80) recommends
that confidentiality clauses not be permitted in conciliation agreements
and that it be made an offence to propose a confidential settlement. A
number of other submissions, without going this far, express concern regarding
confidentiality in conciliated settlements.
While HREOC endorses the need
for public awareness, to require that every complaint outcome be entirely
and identifiably public would clearly serve as a disincentive to resolving
matters in some cases.
HREOC seeks to make matters
of public importance in complaint outcomes public wherever possible, with
identifying details removed where necessary to protect personal privacy
and to the extent necessary to maintain the confidence of parties to complaints
in the process. There is no legislative requirement on complainants to
keep complaint processes or outcomes confidential. HREOC complaint staff
raise the issue of whether and how far a settlement should be confidential
as one for parties to consider in negotiating. Whether complainants agree
to settlements including a confidentiality clause is up to them, although
in some cases respondents may be more willing to settle a complaint if
the agreement includes such a clause.
Local rather than external
In comments at the Inquiry's
hearings the Australian
Chamber of Commerce and Industry support the appropriateness of conciliation
as a means of dealing with discrimination complaints but indicate a preference
for local rather than external agency conciliation.
The DDA and the complaint
provisions in the HREOC Act do already provide for some recognition and
encouragement for enterprise or industry based complaint procedures. Under
the HREOC Act HREOC's President has power to terminate dealing with a
complaint if satisfied that the matter has already been adequately remedied,
which may include remedies through an internal or industry specific complaint
process. Instances of exercise of this power are provided on HREOC's web
site. This still leaves complainants able to pursue matters before the
courts if they choose. Legally conclusive recognition of enterprise or
industry based processes would however also be possible through the temporary
exemption power. To this point industry bodies have not approached HREOC
to seek exemptions on this basis. Such exemptions could however be considered
if reasonable prospects could be shown that the objects of the DDA would
be advanced by this means.
Overlap between Federal
and State jurisdictions
Some submissions raise concerns
about confusion caused by indistinct lines between federal and state jurisdictions.
HREOC and State authority
staff regularly provide advice on these issues whenever it is requested.
HREOC is not convinced that choice of jurisdiction presents a major barrier
to people lodging complaints, any more than consumer choice in markets
should be viewed principally as presenting confusing barriers rather than
One submission (s50) recommends
that consultation be required prior to adoption of disability standards.
HREOC would support amendments
to apply requirements for consultation to occur in development of disability
standards as well as in consideration of exemption applications, without
however specifying the particular form consultation should take as this
is likely to vary with the nature of the issue. Current practice in development
of disability standards has involved extensive consultation despite a
lack of a specific legislative requirement for this to occur. Similarly
HREOC consults on applications for temporary exemption although the DDA
fails to provide a specific requirement for this. It should also be noted
that contrary to what is asserted in one submission (s149) there was substantial
public consultation before the DDA itself was introduced.
Several submissions argue
that the funding conditions for the Disability Standards Project have
required it to support development of standards and not express contrary
community views; and that consultation is restricted to national disability
peaks and the National Disability Advisory Council.
These comments are not accurate.
Project representatives have put forward a range of community views in
standards development processes including views opposed to adoption of
particular standards. Consultation on standards to date has in fact been
very much wider than peak level. A brief description of the process adopted
in relation to the accessible public transport standards is included in
HREOC's DDA tenth anniversary publication. It is not clear what if any
model would be regarded as adequate consultation if this process is not
so regarded. However, HREOC does support calls for additional resourcing
in standards development processes to ensure that an appropriate research
base is available.
Submissions (for example s12)
raise issues of the complexity and cost of Australian standards and recommend
that DDA standards should provide clear standards without having to refer
to and purchase external materials. HREOC agrees that this has been a
concern in DDA standards processes to date and that future development
and review of standards under the DDA should as far as possible achieve
standards which are easy to understand and access.
Submissions (for example s102,
123) also refer to the length and complexity of processes of development
of disability standards. As indicated in its initial submission HREOC
endorses the need to examine alternatives to development of DDA standards,
including use of temporary exemptions and other applicable powers existing
or possible under the DDA to endorse for DDA purposes other codes, standards
or compliance plans.
as minimum only
submissions (s80, 120) call for standards to provide only minimum requirements,
with continued capacity to complain being retained for people whose needs
do not fit the standards.
HREOC endorses the need for
standards to be as inclusive as possible and to make clear that on issues
not covered by a standard general non-discrimination provisions continue
to apply, so that rights are not inadvertently removed through an issue
not being thought of or being able to be agreed. However, where a standard
does apply to an issue, action conforming to that standard will not be
unlawful even though some people's needs may not be adequately addressed.
For example, any standard on access to premises needs to specify a minimum
door width. If standards are to be meaningful it is not feasible to add
a requirement that it is also unlawful not to have a wider door if anyone
submissions (including s78) recommend that disability standards not provide
for an unjustifiable hardship defence.
is clearly desirable for standards to provide the greatest degree of certainty
possible for all parties. However it is also necessary for standards to
be able to apply appropriately in diverse circumstances. Whether standards
can work effectively without provision for a concept such as unjustifiable
hardship depends on the subject matter and on the level of obligations
otherwise provided for. It would be possible in some cases to adopt a
standard which all parties with responsibilities could comply with without
reference to unjustifiable hardship, but only by adopting a lowest common
denominator set of obligations and / or providing for extensive detailed
example, no reference to unjustifiable hardship would have been required
in the accessible public transport standards, in relation to the time
permitted to replace inaccessible buses with accessible vehicles, if the
timetable adopted for all operators had reflected the longest replacement
schedule for any small rural operator in Australia. HREOC and other parties
to the negotiations however did not consider this approach more conducive
to the achievement of the objects of the DDA than adopting a timetable
which it was recognised most, but not all, operators could meet, with
provision for an unjustifiable hardship defence to deal with exceptional
the areas of employment and education, the key obligation to make reasonable
adjustments requires definition of what is reasonable, which requires
use either of the concept of unjustifiable hardship or some equivalent
One submission (s74) argues
that standards should not provide defences beyond those provided in the
DDA since standards should ensure rather than limit the objects of the
It is inherent in the nature
of disability standards that they specify both obligations and limitations
on obligations which are not explicit in the existing provisions of the
DDA. Whether standards advance the objects of the DDA requires an assessment
of the standards as a whole, rather than comparison on a single point
of whether the result would be more or less favourable to a complainant
than the existing provisions. Thus for example the transport standards
in providing a timetable for access give transport providers defences
which they might not otherwise have but also define obligations which
they might not otherwise have. HREOC regards provision for an unjustifiable
hardship defence at all stages of education processes rather than only
at enrolment as defensible in the overall scheme of the draft standards
in this area and in fact as desirable in order to avoid creating disincentives
to admit or enrol students which would otherwise arise if unjustifiable
hardship had to be applied once and for all prior to admission.
Monitoring and enforcement
of standards implementation
Some submissions (s55,147)
propose a role for HREOC in detailed monitoring of the implementation
of accessibility, including matters such as the appropriate fitting of
harnesses in accessible cabs and the correct slope of ramps.
HREOC does not regard these
detailed monitoring roles as appropriate or realistically achievable for
HREOC, other than through the complaint process as a backup to other regulatory
and monitoring process. In addition to issues of availability of resources
for such a role, HREOC considers a more effective model involves responsibility
for accessibility to be incorporated as far as possible into the responsibilities
of mainstream regulatory bodies for each subject matter.
One submission (s157) expresses
concern that enforcement of the transport standards continues to depend
on complaints, and raises issues of complexity of proof of discrimination
even with standards in place.
As indicated earlier it is
clearly preferable if possible to have standards on particular areas monitored
by mainstream regulatory bodies for those areas (as is intended with coordination
of building code revision and development of disability standards on access
to premises) rather than implementation being driven principally through
the DDA complaint process. Current work towards revision of the Building
Code, development of an access to premises standard, and introduction
of an administrative protocol to promote appropriate local decision making
is described in submission 153 from the Australian Building Codes Board.
In relation to transport,
however, no transport sector body could be found able to be given responsibility
for such an enforcement role. HREOC notes that widespread implementation
is in fact occurring by reference to the transport standards rather than
people with disabilities having to pursue each operator through the complaint
Mandatory action plans
A number of submissions call
for action plans to be mandatory for government agencies and larger organisations.
In HREOC's view and as argued in some submissions (for example s44) an
appropriate model for governments to consider as far as their own agencies
are concerned is to establish their own requirements and monitoring arrangements,
as has been done in Western Australia and NSW under the Disability Services
Acts of those jurisdictions, rather than looking to HREOC to perform all
roles in this area.
Monitoring of action
Lack of HREOC resources to
monitor action plans is referred to in several submissions (including
s15). However, in comments in hearing transcripts (Maroochy Shire Council,
Brisbane hearings) the point is made that making action plans public permits
monitoring by community members and organisations. Several submissions
support mandatory reporting requirements for implementation of action
plans. Comments in transcripts (Maroochy Shire Council) support HREOC's
view that this would represent a disincentive to voluntary lodgement of
action plans and would only make sense in a setting where lodgement of
action plans was also mandatory.
Having an action plan is not
a complete defence against complaints; the DDA only provides that an action
plan is to be taken into account in assessing unjustifiable hardship issues.
Concerns that complaints will be dismissed simply because a respondent
has an action plan do not reflect any actual instances of complaint handling
decisions by HREOC or by the courts.
A number of submissions (s62,
64, 67, 90,114) call for improved information and education on the DDA,
- Information for complainants
and potential complainants
- Information for non-English
speaking background people
- Information for employers
- Information for business
- Information for local government
HREOC supports the need for
effective education and awareness and seeks to achieve these aims within
limited resources. HREOC does in fact provide extensive information through
its website and publications in print and other formats as well as through
use of the media, community networks and other public awareness work.
HREOC would welcome both more resources for expanding its educative functions,
and suggestions for means of exercising these functions more effectively.
This includes possibilities for expanded cooperation with business, disability
community organisations, local government, or other agencies in providing
information on the DDA and its application and on related disability issues.
HREOC is particularly interested
in pursuing partnerships of this kind in recognition of limits on its
own resources, expertise and ability to reach people with appropriate
information. (For example it is not clear that HREOC has the resources
and authority to conduct education for architects and building surveyors
on access requirements as recommended in some submissions, rather than
its efforts being best spent in improving mainstream building standards
which mainstream building education and information processes can then
One submission (s120) recommends
plain English redrafting of the DDA including provision of examples along
the lines of the Queensland Anti-Discrimination Act.
HREOC agrees that provision
of examples and other plain English drafting approaches could be helpful,
and would view redrafting on these lines as having greater benefits in
accessibility and simplicity of federal anti-discrimination laws than
the possibility raised in the Issues Paper of further consolidation towards
omnibus discrimination legislation.
Strategies for disability
One peak disability organisation
(s71) suggests that the legislation would achieve greater outcomes through
more active strategies for disability organisations including more active
use of the complaint mechanism; monitoring of action plans; and development
of guides for service providers on best practice.
HREOC agrees that there is
room for disability organisations to use the legislation more effectively
and has sought to provide assistance and advice to this end.
Disability in the media
One submission (s60) notes
limited representation of people with disabilities in mass media, in particular
television. HREOC agrees with the view in this submission that these issues
may be better addressed through industry codes rather than through the
Education and awareness
regarding mental illness
Several submissions note that
more thorough education (including through schools and the media) is required
to reduce discrimination against people with mental illness and their
families. One submission (s36) compares education to achieve greater awareness
and reduced stigma regarding mental illness to the installation of ramps
etc as bridges to equal participation for people with physical disabilities.
It may be recalled that HREOC
did dedicate a large part of its resources over several years to conducting
a national inquiry on human rights and mental illness; however it is not
possible for HREOC to maintain this level of activity on mental illness
issues given the scale of its resources and responsibilities. The comparison
of education and awareness with physical access measures is a useful one.
It indicates the importance of education but also the scale of the task.
Clearly HREOC is not able to deliver or finance itself all the necessary
changes to achieve physical access across Australia and is likewise not
able to deliver all of the information and education needed to change
community attitudes and awareness regarding people with a mental illness.
The Mental Health Council of Australia released a proposal recently for
a national Mental Health Commission similar to that established in with public education on mental
health issues as a major function. The Acting Disability Discrimination
Commissioner has written to the Minister for Health and Aged Services
supporting that proposal.
Several submissions (including
s76) raise concerns regarding lack of prosecutions for offences under
The offences provisions of
the DDA are only ancillary to the civil law provisions which are intended
to do the major work of eliminating discrimination. Lack of prosecutions
for offences may indicate that the provisions concerned are working (by
deterring the actions concerned from being committed) - as in HREOC's
assessment is the position regarding the offences in relation to HREOC
proceedings. In relation to advertisements, it is not clear that an offence
with a $1000 fine provided will necessarily be a more effective deterrent
or remedy than provision for complaints regarding the same matter as an
unlawful act - since there is no $1000 limit on potential damages. Section
3 of the Human Rights and Equal Opportunity Commission Act confirms that
"unlawful discrimination" in respect of which complaints may be made includes
conduct that is an offence under Division 4 of Part 2 of the DDA. The
offence of victimisation carries a more substantial penalty - imprisonment
for 6 months - but, as would be expected for a criminal law provision,
requires proof beyond reasonable doubt and may therefore also be less
practically useful than a discrimination complaint on the same matter.
before the law
A number of submissions (s30,
72, 91, 108) highlight the limited effect of the DDA in dealing with discriminatory
provisions in other laws. HREOC's initial submission noted the possibility
in this respect of inclusion in the DDA of an equivalent to section 10
of the Racial Discrimination Act, subject to the need to consider how
to preserve the operation of beneficial special purpose legislation.
Several submissions (for example
s108) call for the DDA to apply to other jurisdictions including criminal
proceedings, child protection, and family law.
There would be difficulties
in providing for DDA complaints against judicial bodies, including the
general immunity of judges from civil suit. More effective means of incorporating
duties to avoid discrimination into the duties of courts and other bodies
administering other laws might however be possible to identify.
One submission argues that
equality before the law issues including overrepresentation of people
with intellectual disabilities in the criminal justice system should be
a major focus of future HREOC activity. A number of other submissions
(s112, 117, 130) also highlight issues in relation to people with intellectual
disabilities and the justice system.
Issues in this area, including
for people with intellectual disabilities, but also for people with other
disabilities including brain injuries, psychiatric disabilities or sensory
disabilities are clearly important. Making these issues a major focus
of HREOC activity requires however that effective options for action be
identified. HREOC intends to continue consulting with relevant organisations
with a view to identifying appropriate areas for inquiries and other policy
One submission recommends
that corrective systems be required to develop action plans outlining
how prisoners with disabilities can expect to access rehabilitation and
HREOC agrees that action plans
(either under the DDA or under laws or policies adopted by each jurisdiction)
could have important benefits within the justice system in general and
not only in relation to prisons since, as noted in other submissions (for
example s91), people with disabilities also experience inequality as accused
persons and as victims as well as in other roles in the legal system.
One submission (s91) raises
concerns regarding evidence of unequal treatment of parents with disabilities
by child protection services (including inadequate access to information
and lack of access to supports) but states that the DDA cannot be used
in relation to these issues because the person receiving services is the
child rather than the parent with a disability.
Although HREOC would not present
the DDA as providing a complete remedy it is not clear that the DDA is
in fact entirely inapplicable in this area. To the extent that child protection
agencies provide services to parents as well as children, complaints could
be made regarding discrimination against parents with disabilities in
provision of these services. Where children of parents with a disability
are removed from their families in circumstances where children of parents
without a disability would not be removed, or where other differential
restrictions are placed on family life, it would be possible to argue
that the child is being discriminated against as an associate of a person
with a disability. Removal could also constitute indirect discrimination
if it occurs because of factors disproportionately affecting parents with
a disability and which could have been addressed by the responsible authority
providing supports or services which reasonably could have been provided.
Some submissions (s8,27,135)
raise issues of the relationship of the DDA to occupational health and
safety laws, including whether more specific OH& S standards could
be developed and recognised under the DDA, either through the prescribed
laws mechanism or through development of disability standards, to give
employers more certainty regarding restrictions which are and are not
permitted and to reduce unnecessary exclusion or restrictions on health
and safety grounds.
HREOC's initial submission
referred to possibilities for coordination between the DDA and other regulatory
regimes, including through development of disability standards in conjunction
with review of other regimes as with the current access to premises process.
HREOC also agrees that the relationship between discrimination law and
OH&S law is one of those which may require review in the light of
the High Court decision in the Purvis litigation.
One submission (s25) raises
a concern that a history of having made a workers compensation claim leads
to exclusion from work and that DDA does not provide an effective remedy
because employers find other reasons for not employing.
Providing some evidence that
failure to be employed was for discriminatory reasons does provide a problem
in many cases. Any system of legal entitlements however has to require
some evidence rather than it being possible or appropriate for the law
to assume that if a person with a disability does not get a job this is
for discriminatory reasons. The requests for information section of the
DDA was intended to deal with the situation described in this submission
but as indicated in HREOC's submission this section has not been particularly
Submissions from an employer/recruitment
perspective (s29) as well as from the disability community (s83, 90) emphasise
the importance of assistance in meeting costs of workplace modifications
to provide more effective employment opportunity - including issues such
as provision of support workers where required as well as physical modifications
to premises or equipment.
A number of submissions (for
example s72) support HREOC's view that in considering the relationship
of income support arrangements to employment outcomes it is important
to take into account needs for support in meeting costs of participation
rather than adopting models which only consider disincentives to participation
which might be provided by payments through the welfare system
One submission (s74) recommends
that the DDA be extended to apply clearly to training and apprenticeships.
In HREOC's view application
of the existing DDA employment provisions to apprenticeships is clear
in law, but if users of the legislation are not finding this point sufficiently
clear in practice this may justify additional provisions to put the position
In relation to training, there
is one decision (
Clark v Internet Resources,
available at www.humanrights.gov.au/disability_rights/decisions/comdec/2000/DD000110…)
which raises doubt about whether training providers in some circumstances
would be considered educational authorities so as to be covered by section
22 of the DDA. It may be appropriate to consider clearer coverage of training
Several submissions discuss
the interaction between the DDA and industrial law. One submission calls
for the DDA to cover awards, enterprise agreements and industrial agreements.
Other than modified wage arrangements
recognised under section 47, the DDA does not exempt discriminatory actions
only because they are in compliance with an award or agreement. In HREOC's
view the terms of applicable awards and agreements will be relevant to
but not necessarily decisive of the inherent requirements of a job. There
is thus some existing scope to use the DDA to review discriminatory effects
or provisions of awards and agreements.
However, it is not clear how
a provision applying more directly to awards would work if what is proposed
is to make it unlawful for the Industrial Relations Commission and equivalent
State bodies to make an award having a discriminatory effect. The Workplace
Relations Act itself already has non-discrimination provisions. In keeping
with views already indicated by HREOC on the desirability of mainstream
regulators for different areas of activity exercising appropriate responsibility
for non-discriminatory outcomes in those areas, it may be more appropriate
to consider whether non-discrimination provisions in industrial law are
sufficiently effective than to seek to use unlawful discrimination provisions
of the DDA directly against industrial bodies.
Several submissions (s90,
112) emphasise low rates of pay of people with disabilities (predominantly
people with intellectual disabilities) employed in supported employment
business services, with 87% earning less than $80 per week. Submissions
criticise a lack of use by business services of the supported wage system
wage assessment tool, and raise concerns regarding the use of enterprise
bargaining in this area having regard to limited capacity of employees
concerned. Submissions refer to the recent AIRC safety net decision endorsing
need for review of enterprise bargaining and wage fixing in this sector.
As discussed in HREOC's initial
submission section 47 of the DDA only permits payment of lower wages on
the basis of disability where this is based on the productive capacity
of the person, and thus would only provide a defence where a reasonable
relationship between productivity and wages can be shown. However, recognising
the difficulties of pursuing rights in this area through a DDA complaint
process and as a matter of more general principle, HREOC sees it as preferable
for issues in this respect to be resolved through mainstream wage setting
processes if possible, and thus commends the AIRC for its decision to
convene further discussions in this area.
A number of submissions (s44,
90) support consideration of quotas for employment of people with disabilities
as implemented in some overseas nations. HREOC, although agreeing with
the need to consider further measures to address disadvantaged employment
status of people with disabilities, is not aware of evidence of quota
systems working effectively. Other submissions (s70, 101, 119, 129) refer
to other forms of affirmative action measures provided for in employment
equity legislation overseas, including requirements for reporting and
development of plans and policies, which HREOC would see as more promising.
Standards and definition
of unjustifiable hardship and reasonable adjustment in employment
Several submissions call for
greater definition of unjustifiable hardship in relation to employment.
One submission (s66) discusses
the Humphries case, which involved several rounds of litigation
regarding the existence and basis of duties under the DDA to provide reasonable
adjustment in employment, and consumed considerable financial resources
as well as imposing stress on participants including the complainant.
It is clear that had employment
standards in or near the form of either draft issued for consultation
been in force much of the litigation in this matter regarding the meaning
and basis of reasonable adjustment obligations in the DDA could have been
avoided. HREOC has emphasised since the inception of the DDA that a primary
purpose of standards is to reduce the need for litigation to define rights
and responsibilities and the history of the Humphries case amply
demonstrates the need for this to occur.
However as already noted HREOC
does not regard it as productive to attempt to progress employment standards
further without clear indications of support from employer and disability
community representatives, given the extensive resource commitment required
by this process to date, including consultative processes which were in
fact extensive notwithstanding assertions to the contrary in some submissions
to this inquiry. HREOC's understanding of the present position is that
employer representatives regard the content of the draft standards as
appropriate and useful but do not support their introduction as regulatory
standards. Comments in a number of disability community submissions in
contrast indicate continued criticism of the non-prescriptive nature of
the standards, although this was not an approach imposed by HREOC but
one decided on by consensus among government industry and community representatives
in the drafting process.
A preferable approach in this
area, and one not involving the large processes and larger process expectations
which have grown around development of disability standards, may be to
pursue legislative amendment confirming a duty of reasonable adjustment
under the DDA and setting out in brief and general terms the extent and
nature of that duty.
Several submissions (s39,86)
raise concerns that the number of students with disabilities requiring
specific support far exceeds the number receiving it and that resources
provided by government to assist with education of students with disabilities
has not kept pace with increased rates of integration. Submissions also
raise problems with eligibility for assistance including rigid classifications;
failure to include some forms of disability; and time spent in categorising
rather than assisting. Several submissions (s46, 86,148) refer in particular
to limited public funding assistance available for students with disabilities
in non-government schools.
HREOC's initial submission
also refers to concerns in this area which have been raised with us. Several
other submissions however note the levels of Commonwealth assistance going
to some relatively privileged independent schools, albeit not targeted
to students with disabilities. It would clearly be a serious concern if
priority in allocation of public funds were going to facilities such as
additional cricket pitches at elite schools rather than to basic support
for students with disabilities whatever school they attend. HREOC is not
in a position to assess this or the competing claims of public and independent
schools, but is concerned that current arrangements do not appear to be
directing sufficient resources to support equal and effective participation
by students with disabilities overall.
Some submissions (such as
s39), while supporting integration aims, argue that in some cases specialised
resources may not be available at all schools and call for education authorities
to be the final arbiters of best placement of a student.
The DDA provides for students
or parents to complain if denied a choice of school available to other
students and parents. Educational authorities can seek to defend these
complaints by reference to unjustifiable hardship. Although this defence
only applies at the enrolment stage under the existing provisions of the
DDA, HREOC views this as a drafting oversight and supports the intention
to provide an unjustifiable hardship defence generally through Standards.
A defence which is available at all stages however is the special measures
exception. Where education authorities make placement decisions which
they consider in the best interests of the student concerned they may
seek to defend those decisions by reference to this exception. A means
by which education authorities could perform the role of being the final
decision maker on placement issues after appropriate consultation, or
to ensure that "clustering" approaches are lawful, would be to seek an
exemption on the basis of implementing appropriate policies and procedures.
No education system has sought such an exemption to date.
Most submissions in relation
to education (in common with HREOC's) support introduction of standards
as a means of increasing certainty and reducing stress on all concerned
in dealing with issues through complaints. Some submissions (s86) however
question whether the current draft standards will achieve significant
improvements in certainty of rights and responsibilities.
Providers and users of education
are clearly in a better position than HREOC to judge whether the draft
standards will be effective to deliver significant improvements in certainty
of responsibilities and required outcomes. The Regulation Impact Statement
process on the draft disability standards for education and accompanying
consultations would be expected to give an appropriate opportunity for
consideration of these issues.
One submission (s112) states
that segregated education provision either in special schools or special
units is inherently inferior and discriminatory.
Clearly there is nothing unlawful
in provision of education in specialised settings where this is the choice
of students or parents. Non-voluntary placement in a specialised setting,
i.e. exclusion from mainstream classes or from mainstream schools, would
be unlawful discrimination under the DDA, except where inclusion would
impose unjustifiable hardship or where placement in a non-mainstream setting
can be justified as a special measure reasonably intended to provide access
to services etc required because of a person's disability. These exceptions
mean that the DDA does not impose 100% inclusion in mainstream classes
as an absolute rule, but does require departures from the most inclusive
approach possible to be justified.
Child care funding
One submission (s28) raises
concerns regarding child care centres raising unjustifiable hardship together
with lack of sufficient funding under the Commonwealth's childcare Special
Needs Subsidy Scheme (SNSS) as a reason for not admitting children with
Although the application of
unjustifiable hardship in this area could be further tested by complaints
it would clearly be preferable if the need for complaints and determination
of issues of the strict extent of legal liability in this area could be
avoided or reduced through provision of further Commonwealth funding to
assist integration of all children with disabilities in child care and
early childhood education. The recent announcement of increased SNSS funding
is thus welcome.
to premises issues
Several submissions (for example
s19) argue that unjustifiable hardship should not apply to new buildings.
In the development of the
access to premises standard it is intended that the application of the
unjustifiable hardship concept will be restricted to existing buildings.
Several submissions as well
as comments in transcripts raise concerns regarding lack of certainty
on what actions in relation to existing buildings may be sufficient for
DDA compliance. One submission (s35) suggests the use of the temporary
exemption power for this purpose.
The adoption of a disability
standard reflecting a revised building code should significantly reduce
problems in this area including by providing for improved approval and
advisory processes. Pending this, as indicated in HREOC's submission and
in previous public statements and decisions, HREOC favours use of the
exemption mechanism to support increased access through provision of increased
certainty. For exemptions to be granted by HREOC they need to be applied
for. HREOC would consider any application for exemption which provided
in return some reasonably definite process or actions for improving access
A number of submissions call
for standards on access to premises beyond Building Code areas of coverage.
One submission (s144) gives the example of inappropriate geometry being
used for kerb cuts such that they do not provide effective accessibility.
This issue illustrates limitations
referred to in some other submissions of current Australian Standards
based processes, and possible needs for DDA standards to be adopted beyond
the scope of the building code. Successful DDA complaints have however
been made on this issue in some instances although it would clearly be
preferable for standards to be sufficiently clear to avoid the expense
and delay of accessibility works having to be re-done in response to complaints.
HREOC is discussing with other parties involved how best to move on to
deal with issues not covered by the building code once the current standards
process based on revision of the building code is completed.
Local government submissions
(for example s75), while supporting provision of flexibility through the
unjustifiable hardship defence, raises concerns regarding the uncertainty
of application of unjustifiable hardship and potential liability of local
government for permitting discrimination if it accepts unjustifiable hardship
HREOC is aware that a number
of local government bodies have similar concerns.
In Cooper v Coffs Harbour
Council HREOC decided that a local government body should not be liable
for permitting unlawful discrimination under the DDA where council made
a reasonable decision on unjustifiable hardship issues even where (as
in this case) HREOC took a different view of the hardship issues and found
unlawful discrimination by a building owner. However in 1999 the Federal
Court reversed that decision, pointing out that section 122 of the DDA
in imposing liability for permitting unlawful acts does not contain any
reasonableness defence. The court noted availability of a much more restricted
general law defence only of an honest and reasonable mistake of fact,
which might apply where a council acted on the basis of incorrect information
despite reasonable inquiries, but would not include a reasonable conclusion
on hardship issues, based on given facts, with which a court subsequently
In response to this HREOC
consulted publicly in 1999 on a proposed policy involving exercise of
the power to decline to deal with complaints (by the Disability Discrimination
Commissioner as the then holder of the power) where a council had adopted
a framework of appropriate policies and procedures (including a development
control plan or access policy) to ensure outcomes consistent with the
objects of the DDA, and an owner or operator of premises had obtained
approval to vary the need for full compliance with the DCP or Access Policy
from a properly constituted body (including key interest groups) applying
the framework. This proposal was not proceeded with. Disability community
organisations raised concerns regarding reduction of rights while some
industry and government representatives raised concerns regarding a lack
of certainty (given that it would still be possible for complaints declined
by the Commissioner to proceed to the Court).
Development of standards was
seen as a preferable solution. This process has taken considerably longer
to this point than was hoped at the outset but is anticipated to deliver
greater certainty for all parties.
Pending the adoption of standards
on access to premises it would be possible for local government bodies
to apply for an exemption to ensure that decisions made by them are not
unlawful under section 122. The outcome of decisions on exemption applications
clearly cannot be pre-empted here but it is possible that HREOC in deciding
on such applications would be persuaded that to grant such an exemption
would advance the objects of the DDA where in return a local government
agreed to adopt and apply procedures to ensure appropriate decisions;
and/or took other measures to promote access in its community (possibly
including incentive or educational measures for local businesses as well
as local access surveys of the kind referred to for example in Leichhardt
Council's submission and which are beyond HREOC's resources to conduct
Car parking eligibility
Several submissions (for example
s19) raise issues of eligibility for disability car parking permits.
As with other disability specific
entitlements, these issues are not regulated by the DDA or necessarily
governed by the same definition of disability.
A number of submissions raise
concerns regarding the pace of movement towards accessibility contained
in the transport standards compliance timetable. As indicated in HREOC's
initial submission however, the standards only provide a minimum and do
not prevent operators or governments providing additional resources to
accelerate the pace of change to accessibility.
Submissions raise a range
of specific technical issues in relation to public transport including
safety of pedestrian rail crossings (for example s19). There are processes
available for review of these issues including through the Accessible
Public Transport National Advisory Committee rather than needing to be
dealt with through this inquiry.
One submission (s117) raises
a concern that people with intellectual disabilities were not included
in the consumer reference group for development of transport standards
and thus argues that people with intellectual disabilities were not consulted.
Given the range of disabilities
and experience of disability which exists, no workable drafting or advisory
body could cover all types of disability: for example although people
using wheelchairs were directly involved at the level of the taskforce
drafting the transport standards, people with other types of physical
disability were not. There were however broad community consultation processes
conducted (rather than direct representation at the table being the only
form of consultation provided) which did include input from people with
intellectual disabilities and representatives and advocates of this sector
of the disability community. The standards which emerged may not have
addressed intellectual disability issues in detail or extensively (with
the result that some issues in this area remain covered by the general
anti-discrimination provisions of the DDA instead) but this was not the
result of a lack of consideration or consultation. Input on these issues
through community representatives and/or through HREOC on possibilities
for items to be included when the transport standards are reviewed would
Some submissions (for example
s34) raise transport access issues such as in relation to accessibility
of ticket machine controls which are not addressed in the standards. It
is important to note that issues not addressed in the standards remain
subject to the existing provisions of the DDA and as such can be the subject
One submission (s157) raises
concerns regarding a lack of processes to coordinate local government
and transport provider roles.
In HREOC's view these issues
are most likely to be pursued effectively by discussions between local
governments and transport providers with the involvement of relevant State
government authorities and disability community organisations rather than
being capable of being advanced directly by national authorities.
Submissions on telecommunications
issues (for example s31) call for up front standards and processes on
communications accessibility rather than requiring consumers to achieve
change through complaints and exposing industry to consequent uncertainty.
As indicated in our initial submission HREOC shares this view. The most
appropriate mechanism for developing and adopting codes or standards in
this area require further discussion with interested parties (which HREOC
is currently seeking to promote) rather than being for HREOC to specify.
Some submissions raise issues
of unequal access to electoral processes including for people with physical
disabilities or vision impairment.
HREOC has conducted a small
scale public inquiry on electoral access and has dealt with several individual
complaints in this area which however have produced limited results.
has more specific legislative requirements in place requiring accessible
polling places to be used unless the responsible officer certifies no
such place is available in the district. It may be appropriate to consider
such a provision for inclusion in Electoral Acts to give greater specificity
to the general application of the DDA in this area
Several submissions (s45,
83) raise an issue of whether some areas of insurance (in particular workers
compensation) should be considered as social insurance rather than subject
to the general exception for reasonable distinctions in insurance based
on actuarial data.
Complaints and disability
community discussion with HREOC have also raised issues of people with
disabilities being excluded from employment opportunities because of employer
concerns regarding workers compensation. In particular concerns have recently
been raised that workers compensation insurance may not apply where an
injury results from a pre-existing condition. HREOC is not sufficiently
expert in the working of workers compensation systems to assess how far
these may be concerns based on perceptions rather than on actual features
of workers compensation systems, but is concerned that insurance arrangements
should facilitate rather than prevent participation by people with disabilities.
Several submissions refer
to experience of people with a psychiatric disability finding travel insurance,
income protection or mortgage insurance practically unobtainable, and
call for changes to the insurance exemption in the DDA.
It is not clear what changes
to the exception for reasonable distinctions in insurance would improve
the experience of people with psychiatric disabilities in this area. HREOC
considers that improvements may rather be achieved by more effective
use of mechanisms provided for under the DDA including complaints, public
inquiries, conditional exemptions recognising industry codes and procedures,
and potentially by changes to DDA enforcement procedures.
Submission 142 from the Investment
and Financial Services Association expresses concern that, despite indications
in HREOC guidelines, assessments based on industry underwriting manuals
may not automatically be accepted as reasonable, and that a need to justify
decisions more individually by reference to medical and other evidence
imposes substantial costs.
HREOC accepts that the nature
of insurance and the conduct of a viable insurance business requires grouping
of risks rather than entirely individualised assessment. However, HREOC
has never intended to give the impression that standard industry underwriting
practice would automatically be regarded as reasonable on every issue,
since, as IFSA notes, standard underwriting approaches may themselves
be based on outdated information or assumptions. The proposal however
made by IFSA for certification (whether through the exemption process
or by other means) for DDA purposes of underwriting approaches appears
to have potential for improved efficiency in dealing with potential disputes.
This submission recommends
that the DDA allow for appointment of experts to assist in making determinations
on insurance issues.
The legislation currently
permits HREOC to investigate in any appropriate manner. The principal
constraint on appointment of expert assistance relates to resources. The
use of a public inquiry approach has been intended as one means of providing
for more extensive expert input (from industry and community sources)
than HREOC could afford through commissioned reports.
One submission (83) recommends
that the Copyright Act require publishers to make materials available
in accessible formats.
While HREOC understands publisher
concerns regarding protection of intellectual property, direct access
to digital material (from which in most cases print material is subsequently
generated by publishers) would clearly be more efficient as a means of
meeting the needs of many people with a print disability than existing
systems using permission under the Copyright Act to scan print materials
into computer formats. HREOC is participating in discussions on these
issues with publishers in relation to access to materials for tertiary
education, but the issues also have application beyond this context.
Several submissions (s71,72,122)
support introduction of requirements for accessibility in equipment procured
by government, comparable to those existing in the . HREOC's initial submission supported
consideration of similar requirements.
of DDA to equipment imported from overseas
Several submissions (for example
s76) raise issues regarding uncertain liability of overseas suppliers
of equipment imported into .
In the example given - importation
for sale of a video or DVD without captions - as discussed in HREOC's
submission there is no current coverage by the DDA irrespective of the
location of the manufacturer. The DDA covers discrimination in the sale
of goods but does not require goods for sale themselves to be accessible.
Any Australian law to deal
with this situation would appear to need to address importation or sale
rather than attempting to make it unlawful to manufacture items overseas
not meeting Australian requirements. HREOC also considers there are more
substantial issues in the lack of accessibility requirements for products
comparable to those which exist in some overseas markets and in particular
in the ,
rather than the major issues being concerned with keeping inaccessible
overseas products out of Australian markets. That is, it is likely that
in some cases restrictions on overseas competition may also restrict accessibility
subject to the need to prevent possible "dumping" of inaccessible technology
which would not be accepted in countries of origin. In particular, HREOC
supports application in the Australian market of requirements similar
to those in the
requiring all televisions with screens above a certain size to provide
caption decoding capacity.
Several submissions (s21,
22, 26) argue that policies of closing institutions for people with intellectual
disabilities are discriminatory by denying choices to residents and families,
at least in the absence of other adequate services and supports.
have not been driven by DDA complaints.
Individuals (people with disabilities
or parents) or organisations who consider that government policies regarding
disability accommodation involve a discriminatory lack of choice are free
to lodge complaints under the DDA. Complaints could involve either a lack
of alternatives being provided to institutional living, or the imposition
of other models against the wishes of residents. However, as noted in
HREOC's initial submission, in either case there would be a number of
legal issues to address, including those of identifying appropriate comparators
and assessing the applicability of the special measures defence for measures
reasonably intended to address special needs.
Conversely other submissions
(for example s13) argue that the DDA has not been effective enough in
ensuring choice of non-institutional living arrangements.
As already noted, other mechanisms
under Disability Services Acts have been used effectively in some jurisdictions
in this respect. It may also be appropriate in this context to consider
adding specific reference to concepts of the least restrictive setting
and non-segregation as far as possible to the definition of discrimination
to make clearer the possible application of the DDA to these issues.