Chapter 2
OVERVIEW
2.1
This chapter briefly examines the main provisions of the Bill.
Schedule 1 - Age Discrimination
2.2
The bill proposes to amend the Age Discrimination Act 2004 (ADA)
to remove the 'dominant reason' test.[1]
Currently, if an act is done for two or more reasons, and one of those reasons
is the age of the person, that reason must be the dominant purpose for which
the act was done in order for discrimination to be established.
2.3
Under the amendment, where a person's age[2]
is one of the reasons for taking discriminatory action that disadvantages the
person then it is a sufficient basis for discrimination, even if it was the
only reason for the discrimination. In other words, it will no longer be
necessary for a person to prove that age was the dominant reason.
2.4
This is consistent with the recommendation of the House Standing
Committee on Legal and Constitutional Affairs in its 2007 report 'Older people
and the law'.[3]
It will also harmonise the act with other federal and state and territory anti-discrimination
laws.
Schedule 2 - Disability Discrimination
The definition of disability
2.5
The amendments include reference to a genetic predisposition to
disability at the end of paragraph (j) of the definition of disability in the Disability
Discrimination Act 1992 (DDA). This item makes it explicit that 'disability'
does include a genetic predisposition to a disability.[4]
This not only implements recommendations made by the Productivity Commission[5],
but also recommendations by the Australian Law Reform Commission (ALRC) and the
National Health and Medical Research Council (NHMRC) in their joint report.[6]
2.6
The definition of disability is also amended to include behaviour that
is a symptom or manifestation of the disability[7]
and explicitly include within the definition the possibility of disabilities
which may exist in the future.
2.7
Item 17 of Schedule 2 repeals and replaces sections 5 to 9 of the DDA,
which are the provisions that define discrimination under the DDA. The changes
primarily implement recommendations of the Productivity Commission and address
discrepancies raised in the decision of the Full Federal Court in The State
of Queensland (Queensland Health) v Che Forest [2008] FCAFC 96 [Forest].
Direct Discrimination
2.8
Section 5 deals with direct disability discrimination. The original
intention of the DDA was to recognise that positive action may be required to avoid
disability discrimination. The general view, including in the case law, was
that that the DDA impliedly imposes such a duty if such adjustments are necessary
to avoid unlawful discrimination. However, comments made by the High Court in
the 2003 decision of Purvis[8]
cast doubt on this.[9]
New subsection 5(2) introduces an explicit and positive duty to make reasonable
adjustments for people with disability.
2.9
New subsection 5(2) provides that a person is discriminating against
another person if he or she fails to make, or proposes not to make, reasonable
adjustments for the person with disability, where the failure to make such
adjustments has, or would have, the effect that the person with disability is
treated less favourably than a person without disability in circumstances that
are not materially different. Reasonable adjustments are defined as adjustments
that do not impose an unjustifiable hardship on the person making the
adjustments.[10]
Hence, reasonable adjustments are defined in the negative.
2.10
The duty is imposed with the proviso that a person does not discriminate
if the person makes all reasonable adjustments to eliminate that disadvantage
or minimise it to the greatest extent possible. As the term 'reasonable
adjustments' is defined to exclude adjustments that cause 'unjustifiable
hardship', the question of whether the person has complied with the duty takes
into account the circumstances of the parties involved, including what is or is
not possible for the person making the adjustments. On the other hand, the
question of what adjustments can be made to 'minimise as much as possible the
disadvantageous effect of the requirement or condition' requires a consideration
to be made of what adjustments are possible to be made generally and not what
is possible for that particular person. What is meant by 'unjustifiable
hardship' is discussed in more detail later in this chapter.
Indirect Discrimination
2.11
Section 6 deals with indirect disability discrimination and is different
from the existing section in several ways. In the first instance, it replaces
the 'proportionality test' with the test of whether a requirement or condition
disadvantages the person with disability concerned. Currently, the DDA defines
indirect disability discrimination in terms of a person imposing a requirement
or condition on a person with disability with which a substantially higher
proportion of people without the disability can or would be able to comply ('proportionality
test'), but the person with disability cannot or would not be able to comply,
and which is unreasonable in the circumstances. The Productivity Commission
opined that this test appeared to be of little benefit and imposed an undue
burden of proof on complainants[11].
2.12
In its place, new subsection 6(1) proposes a 'disadvantage' test, which requires
that the condition or requirement imposed by the discriminator has, or is
likely to have, the effect of disadvantaging people with the disability of the
aggrieved person. The disadvantage test aligns the DDA with the SDA (subsections
5(2), 6(2) and 7(2)) and the ADA (section 15(1)).
2.13
Unlike section 5 (direct discrimination), existing section 6 of the DDA
does not currently include proposed acts of indirect discrimination. It
requires that a condition or requirement is actually imposed before a complaint
of unlawful discrimination can be made. New subsection 6(1) extends the
definition of indirect discrimination to cover incidences of proposed
discrimination by specifically making reference to requirements or conditions
that the discriminator 'proposes to require' of a person with disability. This
is consistent with the approach taken in the SDA, the ADA and in the existing
definition of direct discrimination in section 5 of the DDA.
2.14
As with subsection 5(2), subsection 6(2) imposes a duty to make
reasonable adjustments to avoid an instance of indirect discrimination.
2.15
The new subsection 6(4) places the burden of proving that a requirement
or condition is reasonable on the person who imposes, or proposes to impose,
the requirement or condition. This amendment is consistent with the findings of
the Productivity Commission[12]
to amend section 6 to require the respondent to a discrimination complaint to
prove that a requirement or condition is reasonable. The rationale is that it
is reasonable to expect that the person imposing the requirement or condition
would have better access to information required to explain or justify the
reason for it. This is also consistent with the approach taken in the Sex
Discrimination Act and the Age Discrimination Act.
Assistance animals, and carers
2.16
Sections 7 and 8 of Item 17 of Schedule 2 of the Bill propose to
rectify discrepancies in the operation of the DDA highlighted by the Federal
Court in the case of The State of Queensland (Queensland
Health) v Che Forest.[13]
2.17
The amendments provide that discrimination on the grounds of a person
having a carer, assistant, assistant animal or disability aid is equivalent to
discrimination on the ground of disability.[14]
While the definition of 'carer or assistant' remains unchanged, subsection 9(2)
introduces a new definition of 'assistance animal', and provides that an
assistance animal is an animal that satisfies any one of three specific
requirements. Firstly, it is accredited under a State or Territory law relating
to the accreditation of such animals. Secondly, it is accredited by a training
organisation to be prescribed in the regulations. Thirdly, it is otherwise
trained to alleviate the effect of the person's disability and meet standards
of hygiene and behaviour that are appropriate for an animal in a public place.
2.18
The purpose of this amendment is to provide greater certainty for both
service providers and people with assistance animals. The third limb of the
definition is designed to ensure that people with disability who may not live
in a State or Territory that has a relevant accreditation scheme, or who may
not have access to a recognised assistance animal trainer, continue to be
protected under the DDA (provided they are able to demonstrate the requirements
of the relevant sections).[15]
2.19
Item 76 of Schedule 2 of the Bill inserts new section 54A into the DDA,
which would exempt from unlawful discrimination requests for information to
confirm the accreditation of an assistance animal or for evidence of its
training to a suitable standard or related requests that the animal be under
the control of the person with the disability or of an associate.
2.20
It also exempts discrimination consequential to the failure of the
person with the assistance animal to provide appropriate evidence that the
animal has the appropriate accreditation or training.
Unjustifiable Hardship
2.21
As it stands, the defence of 'unjustifiable hardship' is not
available to a respondent in matters concerning education after enrolment,
employment between hiring and dismissal, or administration of Commonwealth laws
and programs, sports, and land. The Bill would extend the availability of the
defence to all otherwise unlawful discrimination on the ground of disability,
with the exception of victimisation and harassment.
2.22
Currently, in determining whether the defence of 'unjustifiable
hardship' is made out, all the relevant circumstances of the particular
case must be taken into account, including 'the nature of the benefit or
detriment likely to accrue or be suffered by any persons concerned'. Relevant
case law has interpreted 'any persons concerned' as extending beyond the
immediate parties to the dispute (for example, Access for All Alliance
(Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915) at paragraphs
16–17.[16]
2.23
Item 18 inserts an example at the end of the section to clarify that the
nature of the benefit or detriment likely to accrue or be suffered by the
community is one of the factors to be taken into account in making the
determination. [17]
The availability of financial and other assistance to the person claiming
unjustifiable hardship has also been added to the criteria to be taken into
account under section 11.[18]
This is designed to allow for a more balanced assessment of the costs of making
adjustments.
2.24
New subsection 11(2) imposes the burden of proving that something would
impose unjustifiable hardship lies on the person claiming unjustifiable
hardship.
Employment agencies
2.25
The new subsections 21(2) and 21(3) clarify that is it not the
responsibility of an employment agency to ensure that an employer complies with
the DDA. This is intended to clarify that an employment agency either acting on
behalf of an employer or otherwise acting between the employer and potential
employee is not to be held responsible for carrying out the employer's
obligations under the DDA, including the obligation to make reasonable
adjustments. However, this does not affect the operation of section 122 of the
Act, which provides that a person who causes, instructs, induces, aids or
permits another person to do an unlawful act is taken also to have done that
act. New subsection 21(3) has been introduced to avoid any doubt on that view.
Inherent requirements
2.26
As it stands, the DDA provides a defence to an employer to a discrimination
complaint, if it is reasonable to take into account that the person would not
be able to carry out the inherent requirements of the work sought, even were
reasonable adjustments made. The defence is only available to an employer
responding to a claim of disability discrimination with respect to the offer of
employment or dismissal. The amendments would see this extended so that it is
available to employers in all employment situations.[19]
This item substantially implements a recommendation made by the Productivity
Commission.[20]
2.27
This extension is only implemented to the extent that it is appropriate
for the defence to apply. It will not apply when denying a person with
disability access to opportunities for promotion, transfer or training; denying
a person with disability access to any other benefits associated with
employment, and subjecting the person with disability to any other detriment.[21]
2.28
The purpose of the first exclusion is to ensure people with disability
retain an entitlement to have the opportunity to seek a promotion or transfer
on an equal basis with others. Thus an employer could not, by denying access
to the opportunity for promotion or transfer, deny an employee with disability
the opportunity to demonstrate that he or she can in fact carry out the
inherent requirements of the job sought.
2.29
The second and third areas exclusions relate to instances of
discrimination by an employer against a person who is already employed. In
those instances, as the employee is already carrying out the inherent
requirements of the job, the defence of inherent requirements would bear no
meaning. That is, if the employee is carrying out the inherent requirements of
the job, but is then denied access to a benefit or is subjected to a detriment
by his or her employer (other than dismissal or a change in terms or
conditions), it cannot be a defence to claim that the reason for the
discrimination was that the employee was unable to carry out the inherent
requirements of the job.
2.30
However, if an existing employee became unable to meet the inherent
requirements of the job, the defence of inherent requirements would remain
available to the employer, should he or she decide to dismiss the employee or
to change the terms and conditions of the employment on that basis.
2.31
An employer who denies an employee access to any other employment
benefit or subjects an employee to any other detriment would continue to have
available the defence that avoidance of the discrimination would cause
unjustifiable hardship.
Information
2.32
New section 30 implements a recommendation of the ALRC that the DDA be
amended to prohibit an employer from requesting or requiring genetic
information from a job applicant or employee, except where the information is
reasonably required for purposes that do not involve unlawful discrimination,
such as ensuring that a person is able to perform the inherent requirements of
the job.[22]
The new section will apply to all requests for information to all areas of
discrimination covered by the DDA.
2.33
According to the Attorney-General, new subsection 30(3) lays the onus on
the person seeking the information to establish that the purpose for which the
information is sought was not for unlawful discrimination. This is a reversal
of the usual onus on a complainant to first establish all the elements of the
unlawful conduct. While there may be difficulties associated with requiring a
person to prove a negative, the provision does not impose an unduly onerous
burden requiring that the defendant totally eliminate the possibility that they
may have had a purpose of unlawful discrimination.[23]
Standards
2.34
New section 31 extends the scope to make standards to cover all areas of
unlawful discrimination, simplify requirements for demonstrating indirect
discrimination and place the burden of proving the reasonableness of a
requirement or condition on the person who has imposed it. The existing
provision is limited to employment, education, accommodation, public transport,
the administration of Commonwealth laws and programs in respect of people with
disability and access to or use of premises that are publicly accessible. This
amendment also implements a recommendation of the Productivity Commission.[24]
2.35
New section 31 clarifies the existing situation, whereby Disability
Standards prevail over relevant state and territory legislation. It requires
that the Attorney-General take into account comments made by state and territory
counterparts in making the Standards.[25]
2.36
The form of the new section 31 is different from the provision it
replaces. The new provision provides explicitly that the disability standards
are legislative instruments and provides a more comprehensive power for the
standards to make provision in relation to reasonable adjustments, strategies
and programs to prevent harassment and victimization of persons with
disabilities, unjustifiable hardship and exemptions and the power of the Australian
Human Rights Commission (AHRC) to grant such exemptions.
Penalties
2.37
The amendments substitute a system of penalty units for monetary
figures. This is in accordance with modern drafting practice.[26]
Migration
2.38
Section 52 of the DDA currently contains an exemption from Part 1 and
Part 2 of the Act for provisions in the Migration Act 1958 (the
Migration Act) and regulations made under it and for the administration of that
Act and regulations. The Productivity Commission recommended that this be
reviewed to ensure that the exemption extends only to those provisions that deal
with issuing entry and migration visas to Australia and does not extend to
administrative processes.[27]
According the Explanatory memorandum, new section 52 clarifies that incidental
administrative processes are not exempted from relevant parts of the Act. How
far the exemption stretches is elaborated on in chapter 3.
Action plans
2.39
Presently the class of persons who can prepare action plans is
restricted to include government departments, educational institutions, and
providers of goods, services or facilities.[28]
The amendments in new sections 59 to 64 loosen these restrictions.
2.40
Item 85 repeals existing sections 63, 64 and 65. Under new section 64 the
AHRC will no longer be required to sell action plans. Instead, an action plan
submitted to the Commission must be made available to the public (for example,
by providing a copy on the Internet). Item 86 is a savings and transitional
provision to preserve existing action plans and providing for them to operate in
accordance with relevant amendments following their commencement.
Schedule 3 - Human Rights and Equal Opportunity Commission Act 1986 and
other acts
Human Rights and Equal Opportunity
Commission Act 1986
2.41
The bill proposes amendments to the HREOC Act, and consequential
amendments to other acts, to formally change the name of the Human Rights and
Equal Opportunity Commission (HREOC) to the Australian Human Rights Commission
(AHRC).[29]
2.42
Earlier this year, the commission changed its corporate identity to
assist in promoting the AHRC as an independent national institution with the
responsibility to protect and promote human rights in Australia.[30]
2.43
A key amendment to the HREOC Act is to extend from 28 to 60 days the
period in which a person can take a complaint to the Federal or Federal
Magistrates Court after it is terminated by the commission.[31]
This gives effect to another recommendation from the Productivity Commission's
report.[32]
2.44
A number of amendments are also proposed to improve the efficiency and
effectiveness of the commission's complaints-handling process, including
allowing the president of the commission to finalise settled complaints and
complaints for which the complainant expresses no intention to pursue the
matter.
2.45
These include the repeal of a provision calling for the establishment of
advisory committees to assist the Commission in its functions.[33]
The provision is not strictly necessary as the Commission retains the power
under section 15 of the Act to consult appropriate persons, governmental
organisations and non-governmental organisations in performing its functions.
Other amendments include:
- a new requirement that complaints alleging a breach of human
rights be made by or on behalf of one or more persons aggrieved, so as to avoid
complaints being made without the knowledge of the allegedly aggrieved party.[34]
The new requirement is mirrored by Item 143 in relation to discrimination in
employment.
- A new power enabling the President of the Commission to decide
not to inquire, or not to continue to inquire into a complaint alleging a
breach of human rights if he or she is satisfied that the complaint has been
settled or resolved. This will allow the Commission to close complaints that
have been resolved and avoid the need for the complainant to withdraw a
complaint after it has been resolved by agreement.[35]
- A new power allowing the President to decide not to inquire or
not to continue to inquire into the complaint if he or she is satisfied that
the complainant does not want the President to inquire or continue to inquire
into the complaint, or is satisfied the complaint has been settled or resolved.
This will enable the Commission to discontinue complaints where the complainant
has ceased to respond to the Commission's requests for information and thereby
assist the Commission to function effectively and efficiently perform its
complaint-handling function.[36]
- Amendment of existing subsection 47(1) of the HREOC Act to allow
for the Minister to declare an international instrument to be an international
instrument relating to human rights and freedoms for the purposes of the HREOC
Act without the need for gazettal, to have status as an international
instrument under the Legislative Instruments Act, and to be exempt from 'sunsetting'
provisions that might otherwise apply.[37]
2.46
Other amendments deal with appointments to the Commission[38],
protection for the Commission from civil actions[39],
agents acting for and on behalf of the Commission[40],
penalties under the Act being prescribed in unitary form[41]
Racial Discrimination Act 1975 (RDA)
2.47
The effect of the first set of amendments in relation to the RDA is to
remove the Community Relations Council. No members have ever been appointed to
the Community Relations Council, although some of its functions were in the
past performed by voluntary committees established on an ad hoc basis by
the Commissioner. The new Commission will retain the power, currently in
section 15 of the Human Rights and Equal Opportunity Act, to work with and
consult appropriate persons, governmental organisations and non-governmental
organisations.[42]
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