Chapter 3
ISSUES
Introduction
3.1
The Bill attracted widespread support, and the majority of submitters
and witnesses commended the amendments on the basis that they would improve the
operation of laws relating to disability discrimination and other human rights
in Australia.[1]
An exception to this was the Australian Chamber of Commerce and Industry
(ACCI), which did not support a number of key amendments contained in the Bill.
3.2
At the outset, it is important to acknowledge the very different nature
of the Disability Discrimination Act (the DDA) to other anti-discrimination
legislation. Most notably, it is much more likely that a potential respondent
under the DDA would incur considerable costs in complying with their
obligations under the DDA than under legislation which addresses itself to
discrimination in the areas of sex or race. This sets the DDA apart, and adds
special focus to the fair yet practical application of obligations, and the
circumstances in which they might be set aside, under the Act.
3.3
Particular support was expressed by a number of submitters for the adoption
by the Government of the United Nations Convention on the Rights of Persons
with a Disability[2],
and for the Bill's explicit recognition that a failure to make reasonable
adjustments to accommodate people with disabilities can constitute
discrimination.[3]
3.4
However, most submitters also expressed concerns about the effectiveness
of some provisions in achieving their objectives, and about whether the Bill
went far enough in reforming the current law.[4]
3.5
This chapter addresses itself to the observations of these submitters.
In general, provisions are dealt with in the order in which they appear in the Bill.
Amendments to the Age Discrimination Act
3.6
Amendments to the ADA received broad support, with most submitters
focussing on changes to the DDA. The exception was the ACCI, which addressed
the ADA amendments extensively and recommended that the 'dominant purpose' test
in the ADA be retained.[5]
Amendments to the Disability Discrimination Act
3.7
Perhaps the most common concern across the range of submissions related
to the definition of discrimination in sections 5 and 6 of the DDA, as well as
to prospective amendments to the definition contained in the Bill.
Direct discrimination
The 'comparator' element
3.8
The Bill does not substantially alter the direct discrimination
provisions, except to add the requirement to make reasonable adjustments.
However, submitters took the opportunity to question the continued use of the
'comparator' test which is retained in the legislation. A number of submitters were
evidently disappointed that the redrafting of these provisions did not include
any substantial change to the 'comparator' test.
3.9
The Bill proposes to define direct discrimination by reference to less
favourable treatment of a person, because of their disability, than would be
enjoyed by a person without the disability, in circumstances that are not
materially different.[6]
Thus, the definition includes an element of causation (the treatment must be 'because
of disability') and a comparative element (a comparison with a person 'in
circumstances that are not materially different'). An aggrieved person must
prove both elements.
3.10
A significant number of submitters argued for the removal of the comparative
element to the definition, on the grounds that the central issue in determining
whether direct disability discrimination has occurred is whether a person’s
treatment was because of disability, and that the definition need go no
further.[7]
Submitters argued that the practical application of the comparator element by
the courts has proven problematic, due primarily to the difficult issue of how
to construct the ‘same or similar circumstances’ for carrying out the
comparison. Only very rarely is there an ‘actual comparator’; that is, a person
who was in the same circumstances in all material respects against whom an
aggrieved person’s treatment can be compared. It is therefore necessary for
Courts to consider the position of a ‘hypothetical comparator’. This, according
to the Australian Human Rights Commission (AHRC), 'is an exercise fraught with
complexity'.[8]
3.11
The NSW Disability Discrimination Legal Centre submitted that:
A large proportion of NSW DDLC’s cases involve incidents of
direct discrimination because of a manifestation of a disability, for example
where children are suspended or expelled from school because of behavioural
disabilities, where employees are dismissed after being absent from work for a
period of time because of an illness or where a person is evicted from an apartment
because of anti-social behaviour. Our advice to these clients is that, unless
they can construe what happened as indirect discrimination, which is extremely
difficult to do, as discussed below, they are not protected under the DDA.
Another employee, student or tenant, who behaved the same way in the same
circumstances, but without the disability, would have been treated the same
way. Unfortunately, our clients are left without recourse in these situations.[9]
3.12
In a similar vein, the Human Rights Law Resource Centre submitted that:
...The comparator test overlooks the inability of a person with a
disability to control circumstances that are caused by their disability, such
as disruptive behaviour ... or infectiousness, as is characteristic of persons with
HIV/AIDS. For this reason the comparator test is particularly problematic for
people who have intellectual or non-physical disabilities.
...
... a complaint of disability discrimination should not fail
simply because a comparator cannot be found, or because the comparator displays
the very characteristics of the person’s disability that resulted in the
discriminatory treatment. Such an approach fails to ensure substantive equality
for persons with a disability and instead promotes identical treatment irrespective
of difference and irrespective also of any discriminatory consequences.[10]
3.13
A number of submitters proposed the adoption of the definition contained
in the Discrimination Act 1991 (ACT) which provides simply that
discrimination occurs when the discriminator treats or proposes to treat the
other person unfavourably because the other person has a prescribed attribute.[11]
Critically, such an approach does not require an explicit comparative element.
However, an officer from the Attorney-General's Department submitted that:
The comparison element is almost always there anyway, I would
think. Under the ACT model, you are asking, 'Was this person treated unfavourably?
Were they disadvantaged?' I do not think it is too far of a step then to say, 'What
would have happened had they not had that characteristic or feature?' It is
quite express here and that is then seen as an element that you need to
demonstrate. In the other ones, it is probably not seen as a required element,
but it is clearly something that does occur in the background.[12]
3.14
Proponents of the model seem not to argue with this observation. It was
argued that, under such a simplified test, comparative analysis may still often
provide a useful analytical tool in determining whether particular treatment
was partly or wholly on the ground of a protected attribute and not some other
unrelated reason. The distinguishing factor is that the comparator element,
while potentially useful, does not form a threshold which must be cleared by
the complainant in order to make their case. [13]
3.15
The AHRC, one of the proponents of the ACT model, pointed out that the
committee had seen fit to recommend the model's adoption in the context of its
recent review of the Sex Discrimination Act[14],
and explained the outcome of the removal of the comparator test would:
...result in a simple test: a person discriminates against another
person if the person treats or proposes to treat the other person unfavourably
because of the other person’s disability. This gets to the heart of what
nondiscrimination is about and avoids the artificial and sometimes tortuous
search for a hypothetical comparator.[15]
3.16
Representatives of the Attorney-General's Department were circumspect
about the prospect of removing the comparator test. As well as reminding the
committee that its removal would bring about another point of difference
between the DDA and other anti-discrimination legislation, officers pointed out
that the Productivity Commission had considered the test appropriate when it
conducted its 2004 inquiry. The Productivity Commission's finding in relation
to the comparator test is in contrast to its recommendation regarding the
proportionality test, which the Bill removes.[16]
An officer went on to elaborate on the purpose behind the comparator test:
It does focus the test on what would have happened in a
situation without a disability or what would have happened in a situation where
a person of the opposite sex would have been considered, so it does require the
court or a decision maker to focus on that element there. Some people would say
that is an unnecessary element and that if you are treated unfavourably that
should be sufficient to demonstrate that there is discrimination. Other people
say, 'No, that’s a process in which that test allows you to flesh out a few
more of the issues.'[17]
3.17
The committee notes that the Productivity Commission was not in favour
of the test's removal, and considered it appropriate.[18]
After considering the ACT model and others, the Commission concluded that it
was:
...not convinced that these alternative approaches are significantly
different in practice from the comparator approach in the DDA. Any notion of
'unfavourable', 'less favourable' or 'detrimental' treatment almost inevitably
requires a notional or theoretical comparison of the treatment of the person
with a disability, and the treatment that person would have received if they did
not have the disability.[19]
3.18
However, the Productivity Commission did find that the DDA is unclear
about what constitutes 'circumstances that are the same or not materially
different', and that the DDA should be the making of a comparison under the
'comparator' test would be aided by examples in the Act or in guidelines to
clarify when those circumstances apply. The Commission recommended, at 11.2,
that such examples be inserted.[20]
3.19
The committee acknowledges the arguments for and against the comparator
being retained in the DDA, but considers that the implementation of the
Productivity Commissions recommendation to insert examples to better illustrate
when circumstances are the same or not materially different would go some long
way to addressing concerns. Therefore, the committee recommends that the
Government consider the development and insertion of such examples into the
DDA.
General limitations provision and
the breadth of anti-discrimination law
3.20
A number of submitters calling for the removal of the comparator element
suggested the introduction of a general limitations provision in its stead.[21]
It was argued that, were the comparator test removed from the definition of
direct discrimination, such a provision would need to be introduced into the
DDA to ensure that the right to protection against discrimination could be
limited in certain circumstances, such as where it is unreasonable to require a
person to accommodate the disability because of unavoidable occupational health
and safety or public safety risks. Such a provision would incorporate guidance
on permissible limitations on the right to non-discrimination.
3.21
On a similar point, ACCI argued that the definitions of discrimination
are too broad. Although arguing for the exclusion of mental disorders which
manifest themselves in addiction from the definition of discrimination in the Bill,
the point made by the Chamber had parallels with the discussion of a general limitations
clause, insofar as both aim to address the possibility of absurd outcomes under
the Act. ACCI submitted that:
The definition of disability is extremely wide, and can
conceivably cover nearly every known (and yet to be discovered) medical
disease/illness. This can also include psychiatric conditions. The problem for
employers is that some conditions are:
- Objectively not readily observable
(genetic conditions, conditions that are not obvious by external
manifestations);
- Manifest in behaviour which is
anti-social or dangerous to other persons which could be attributed to someone
without underlying conditions;
- Manifest in behaviour that is not
known to result from or be predominantly caused by an underlying condition (ie.
illicit or legal drug use).
3.22
The committee notes that the Bill does not contain any proposal in
relation to a limitations clause. While understanding the argument for such a
clause, it considers the extension of the unjustifiable hardship defence will
go some way to alleviating concerns that the definition of discrimination goes
too far. The committee would anticipate the opportunity to further examine the
concept, and make appropriate recommendations, were the government to proceed
with removal of the 'comparator' element from the test for discrimination in
the DDA.
Indirect discrimination
3.23
Many submitters supported the removal of the 'proportionality' test for
those seeking to prove indirect discrimination.[22]
In addition, the new subsection 6(3) which shifts the onus of proving reasonableness
of a condition or requirement to the respondent, also attracted widespread
support.[23]
3.24
As with the definition of direct discrimination, however, a number of
concerns were raised about aspects of the proposed definition of indirect
discrimination.
3.25
Prominent among these was the requirement under new paragraph 6(1)(b)
for the applicant to show that they do not, would not, could not or are not
able to comply with the condition or requirement because of their disability.[24]
A number of submitters expounded on problems associated with the need to show
an inability to comply with a condition or requirement, and a number made
reference to the Hinchcliffe case.[25]
This case involved a vision impaired student who was found to be 'able to
comply' with a condition in spite of considerable disadvantage in doing so. The
Federal Magistrates Court noted that the applicant was inconvenienced relative
to other students when complying with the condition but found that this did not
mean she was unable to comply with the condition.[26]
3.26
The AHRC recommended the removal of paragraph 6(1)(b) to bring the DDA
into line with the equivalent provision in the SDA, which requires the
applicant to show that the respondent requires, or proposes to require the
applicant to comply with a requirement or condition that has or is likely to
have the effect of disadvantaging the applicant.[27]
The AHRC argued that interpretation of the definition is thus simplified, and
the focus of the inquiry is on the disadvantage rather than on the applicant's
ability to comply with a requirement.
3.27
New paragraph 6(2)(b) attracted comments in a similar vein. It proposes
to require the applicant to show that, because of their disability, they would
be able to comply with the requirement or condition only if the respondent made
reasonable adjustments, and proposed to not make those adjustments.
3.28
The effect of the provision is that applicants must prove that they
cannot comply with a requirement or condition only because the
respondent declines to make the adjustment. This means that a person who is
able to cope with a requirement or condition, in spite of suffering
disadvantage, is denied a remedy.[28]
At the committee's hearing in Sydney, the Commissioner Graeme Innes put the
argument this way:
We argue that the focus should be on the disadvantage caused by
the condition or requirement, as is the case under the [Sex Discrimination Act]
definition of 'indirect discrimination'. A test of compliance focuses a court’s
inquiry on the resources and perseverance of a person with disability. It
results in the court asking, in effect, what level of distress, inconvenience
and embarrassment a person with a disability should have to endure before they
can be said to be unable to comply with a requirement or condition. That is a long
way from equality for people with disability. The starting point should be that
people with disability are entitled to live without disadvantage, not that they
are expected to put up with it.[29]
3.29
The Human Rights Law Resource Centre submitted that requiring the
applicant to show an inability to comply was:
... inconsistent with the objects of the DDA, which include ‘to
eliminate, as far as possible, discrimination against persons on the ground of
disability’ in prescribed areas of activity and ‘to promote recognition and
acceptance within the community of the principle that persons with disabilities
have the same fundamental rights as the rest of the community’. As Hinchliffe
illustrates, a person with a disability cannot enjoy their right to an education
on an equal basis with others if they are disadvantaged by teaching methods
that fail to accommodate their different circumstances.[30]
3.30
Representatives of the Attorney-General's Department submitted that,
while consideration was given to the 'ability to comply' provision appearing at
section 6(1)(b), its removal was not put forward because the matter was not the
subject of a recommendation in the Productivity Commission's review.[31]
3.31
While the compliance test is clearly unpopular with some submitters, the
committee does not consider that it received sufficient evidence from a wide
variety of stakeholders of the likely effect of its removal on the way
discrimination cases are heard and decided. The matter requires deeper
consideration, and as a result the committee makes no recommendation on the
removal of the compliance test at this stage.
Reasonable adjustment
3.32
Very strong support was received for the explicit recognition in the Bill
that a failure to make 'reasonable adjustment' can amount to
discrimination.[32]
The requirement to make such adjustments is introduced in paragraphs 5(2)(b)
and 6(2)(b) of the Bill. Dr Belinda Smith expressed a common view:
I strongly support the proposal to provide that failure to make
reasonable adjustments amounts to discrimination. Such a provision acknowledges
that to achieve substantive equality, organizations need to do more than simply
apply their criteria consistently and treat everyone the same.[33]
3.33
However, submitters saw a number of problems with the Bill's treatment
of reasonable adjustment. One concern put by a number of submitters was the
possibility that the wording of the definition of reasonable adjustment
contains an assumption that the adjustments are reasonable unless they impose
an unjustifiable hardship[34]
Such an assumption being made is important, as the effect could otherwise be to
place on the applicant the burden of proving that reasonable adjustments did
not cause unjustifiable hardship on the respondent.[35]
The committee accepts the argument that it would be very difficult for an
applicant, without the necessary information, to prove a negative in a court
setting.
3.34
Another concern centred on the definition of reasonable adjustment being
tied to whether or not the adjustment imposed unjustifiable hardship. The
Public Interest Advocacy Centre (PIAC) put the argument this way:
PIAC supports the inclusion of a definition of reasonable
adjustment ... but submits that in order to be properly understood it is
necessary that the definition include the principle underlying reasonable
adjustments. This principle is that, in relation to indirect discrimination, a
reasonable adjustment is one that minimises to the greatest extent possible,
the disadvantageous effects of the requirement or condition; or, in relation to
direct discrimination, a reasonable adjustment is one that minimises the less
favourable treatment experienced by the person with a disability. An adjustment
that fails to minimise the discriminatory impact is not a reasonable adjustment
even if it does not impose unjustifiable hardship as such an adjustment does
not fulfil the purpose of making adjustments.[36]
3.35
The corollary to this is the observation that the concept of 'unjustifiable
hardship' is intended to be a defence, and should not form part of the
definition of reasonable adjustment.[37]
This inter-relationship between concepts was one of the most common concerns
put to the committee, in particular the conflation of the concept of reasonable
adjustment with the definitions of direct and indirect discrimination, as well
as the concept of unjustifiable hardship. It was argued that the definitions of
discrimination are complex, and that the inclusion of reasonable adjustment
with those definitions adds to the confusion.[38]
The opportunity for the DDA to make a clear positive statement as to the duty
to make reasonable adjustments is also foregone.
3.36
The Australian Human Rights Commission proposed an alternative model,
whereby the need to make reasonable adjustments appears as a positive
requirement after the definitions of discrimination. In place of proposed
subsections 5(2) and 6(2) the Commission recommended:
...that a provision to the following effect be inserted after the
definitions of direct and indirect discrimination in [subsections] 5 and 6:
Duty to make reasonable adjustment
For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the ground of a
disability of the aggrieved person if the discriminator refuses or fails to
make a reasonable adjustment.
‘Reasonable adjustment’ should be defined as a modification or
adjustment that:
- alleviates a disadvantage related
to an aggrieved person’s disability; or
- assists an aggrieved person to
have opportunities which are, as far as possible, equal to persons without the aggrieved
person’s disability.[39]
3.37
The Commission argues that such a stand-alone provision would bring
effect to the intention of the Bill, and would be an 'appropriate, clear and
consistent way of defining the scope of the duty to make reasonable adjustments'.[40]
Commissioner Innes expounded on the benefits of the model at the Sydney
hearing:
The model works by providing a more detailed definition of
'reasonable adjustment' that requires a person to show that the adjustment will
alleviate their disadvantage or promote equality of opportunity. The
commission’s model then defines a failure to make reasonable adjustments as
discrimination but does not replicate the more complicated language of direct
and indirect discrimination, as the bill does in proposed sections 5(2) and
6(2). The duty then applies in the areas of public life in which discrimination
is unlawful. A respondent has available the defence of unjustifiable hardship.
This is consistent with the bill’s proposed section 4(1) definition of
'reasonable adjustment', which defines a reasonable adjustment as any
adjustment that does not impose an unjustifiable hardship.[41]
3.38
At the committee's hearing in Canberra, officers from the
Attorney-General's Department submitted that 'reasonable adjustments' had
always been linked to the concept of discrimination, so that:
For example, in the concept of indirect discrimination, it is
unlawful to impose an unreasonable requirement on someone that has those
impacts on them as a result of their disability, so if something is
unreasonable there is an obligation in there to make a reasonable adjustment to
avoid having an unreasonable one. It is very much something that is focused to
those concepts of discrimination.[42]
3.39
The committee was told that this rationale underpinned the decision to
proceed with an explicit recognition of 'reasonable adjustments' within the
scope of direct and indirect discrimination. Officers went on to explain that:
There are a number of advantages to this model that the
government has proposed. It reinforces the original intention of the Act and
the fact that it was the original intention of the Act. It provides more
clarity and certainty for those who need to work out what their obligations
under the Act are, because it does not derogate too far from the current
definitions of what discrimination is under the Act. It also provides direction
for the courts by allowing them to draw on the jurisprudence that has already
been established with respect to both reasonable adjustments and unjustifiable
hardship, particularly the jurisprudence that was developed before Purvis.[43]
3.40
The committee agrees that the arrangements put forward in the Bill are
complex, and considers that new sections 5 and 6 could benefit from
simplification. However, the committee takes the view that proposals for
simplification require in-depth analysis and consideration, a task that falls
outside the scope of this inquiry. Putting aside issues of complexity, the
explicit inclusion of 'reasonable adjustments' is a positive step, and
consequently the committee supports the Bill's provisions in this regard.
Consistency
3.41
In the context of making comparisons between various definitions, a
number of submitters made note of the fact that the definition of
discrimination differs between various commonwealth acts. In respect of the
definition of indirect discrimination, Dr Belinda Smith observed that:
...it is unclear why the wording does not more closely replicate
the indirect discrimination provisions of the SDA or the [ADA]. Enacting this
provision would mean that, despite legislative reform, we would still have four
different definitions of indirect discrimination at the federal level. If the
Government is committed to harmonization of state and federal
anti-discrimination laws, then it should start by ensuring consistency between
the federal legislation.[44]
3.42
However, the sentiment underlying Dr Smith's submission was echoed by
other submitters, and in respect of definitions for both direct and indirect
discrimination.[45]
3.43
Officers from the Attorney-General's Department advised the committee
that the Standing Committee of Attorneys-General (SCAG) is currently trying to
harmonise in three stages the state and territory anti-discrimination laws with
the Commonwealth anti-discrimination laws.[46]
3.44
The committee will follow the progress of the SCAG process, but is
mindful of the very different nature of the DDA from other anti-discrimination
legislation. This necessarily limits the extent to which harmonisation of
scope, definition, operation and remedy can occur. Nonetheless, the committee
takes this opportunity to restate its preference for maximising consistency of
definitions (where it is possible and practical to do so) for similar or
identical concepts across different Acts, both within and between jurisdictions.[47]
Extension to cover associates,
carers, animals and aids.
3.45
The measure in new section 8 of the Bill of the operation of the DDA to
associates, carers, assistance animals (usually dogs) and assistance aids
garnered solid support from submitters.[48]
3.46
Specifically, concerns arose as to the requirements contained in section
9, and at new section 54A, and their potential practicality for people with
assistance animals. Among other things, these provisions clarify that it is not
unlawful to ask a person with an assistance animal for evidence of the animal's
training, or to discriminate against the person if the evidence is not
forthcoming, or if the animal is dirty or poses a threat to safety. The NSW
Disability Discrimination Legal Centre submitted that:
Where an animal is trained to alleviate the effects of the
person’s disability, but not accredited, there is little guidance for
applicants or respondents to assess whether it will meet the requirements of
section 9(2)(c)(ii).[49]
3.47
Conversely, for other submitters, the Bill's recognition of an
assistance animal in spite of it not being accredited was a matter of concern.
The Guide Dogs Association of South Australia and the Northern Territory
submitted that:
The training of an assistance animal is one area of concern; however
the temperamental and breed suitability is another. Guide dog schools in particular
ensure their staff is suitably qualified to ensure clients receive the specialist
service they require. They also develop breeding programs and puppy raising
programs to ensure the quality and temperament of the dogs is of the highest
standard. Our concern is that assistance animals not accredited under a law of
a State or Territory or animal training organisation are not of the same
standard and are potentially temperamentally unsuitable to be entering public
places. There is also a duty of care to ensure people are not selecting dogs
that are considered prescribed breeds as assistance animals. There are many
breeds that are perceived as unsafe and our concern is that these breeds will
cause fear or avoidance from the public towards all assistance animals.[50]
3.48
While most submitters supported the measure in principle, some were keen
to point out some potential practical problems. The Deafblind Council submitted
that:
Although [the Council] encourages the right to request that an owner
produces evidence of training and qualification for an assistance animal, we
stress that any request which is made should be done through appropriate and
accessible communication. Many people who are deafblind use highly specialised
sign language, or communicate via speech and hearing with great difficulty.
Under these circumstances, merely requesting the relevant information and
asking follow up questions may pose an insurmountable barrier if done
incorrectly.[51]
3.49
Similarly, the Guide Dogs Association of South Australia and the Northern
Territory submitted that:
Section 54A (2) of the proposed amendment suggests that it is
not unlawful for a person to request or require that the assistance animal remain
under the control of another person on behalf of the person with a disability.
This amendment is open to abuse and is somewhat ambiguous. Our concern is that
a person can request that an assistance animal remain with a 'friend' outside
while the person with a disability is permitted inside a public place. This is
simple discrimination against the person with the assistance dog. Guide Dogs
SA.NT would question the relevance of including this amendment. If the purpose
of this is to ensure that assistance dogs are always under the control of the
person with a disability or their carer, it would be prudent to include this
section, but not with the stipulation that it is lawful for another person to
request or require the assistance animal be under the control of another
person.[52]
3.50
Representatives of the Attorney-General's Department submitted that the
provision was designed with the aim of better defining 'assistance animal' so
as to alleviate problems with the existing arrangements:
Under the Disability Discrimination Act at the moment, the
provision that relates to assistance animals is quite general...[I]t does not
refer at all to state or territory laws that might actually accredit animals,
and some states and territories are developing those sorts of systems. It also
at the moment does not allow, for example, a shop owner or a restaurant owner
to ask a person who is being accompanied by an assistance animal whether it is
an assistance animal, because, in a sense, asking for that information could
trigger off a complaint of unlawful discrimination [so that] on the one hand,
we have this call for greater recognition of what is an assistance animal and
the need to make sure that the Disability Discrimination Act is updated to
reflect that. On the other hand, we also have this request for information: is
it unlawful to ask someone, 'Is that an assistance animal? Is it appropriately
trained?'[53]
3.51
Mr Arnaudo went on to conclude that:
[The Bill] is trying to balance those different interests and
also recognising that at the moment the Disability Discrimination Act is quite
general about assistance animals. What we are trying to do is provide a bit
more certainty. It is not trying to remove all the uncertainty that the current
act already has.[54]
3.52
The committee acknowledges the difficulty is striking the right balance
between protecting the rights of those with assistance animals, and a potential
respondent's need to establish the bona fides of a person seeking access to
premises and claiming to have an assistance animal, especially when that animal
appears dirty or displays otherwise antisocial behaviour. There is no apparent
solution, and on balance the committee considers that the provisions relating
to assistance animals represent an improvement to those currently in place.
Requests for information
3.53
Proposed new section 30 is intended to implement recommendations made by
the ALRC 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.'[55]
3.54
The ALRC addressed its submission largely to discrimination on the basis
of genetic information. The Commission expressed very strong support for
proposed new section 30, and submitted that it was consistent with the findings
in the Essentially Yours report.[56]
3.55
However, the Human Rights Law Resource Centre expressed concern that the
prohibition on seeking information would not apply if evidence were produced by
the employer to the effect that they did not request the information for the
purpose of unlawfully discriminating against the other person on the ground of
the disability. The Centre went on to observe that:
Whilst not strictly an exemption, subsection 30(3) may in some
cases have the effect of allowing discriminatory acts under the DDA if evidence
is produced in favour of the respondent and not rebutted. This means that an
employer need not actually prove that they did not have an unlawful purpose (in
accordance with the usual civil standard of proof), but merely needs to produce
evidence to the effect that the purpose is not unlawful discrimination. There
is no justification for releasing the employer from the burden of proving the
absence of unlawful purpose to the normal standard of proof in this
circumstance and effectively creating an assumption in favour of the purpose
being lawful. This is not part of the recommendations of the ALRC in Essentially
Yours.[57]
3.56
The Australian Human Rights Commission echoed these concerns, submitting
that:
...the proposed exemption in s 30(3) should be amended to impose a
clear burden on respondents to prove that they did not request information
unreasonably or for the purpose of discriminating against them. ... The proposed
section places only a very low evidential burden on a respondent: it would
appear that any evidence, however probative, 'to the effect that' the person
lacked a discriminatory purpose will be sufficient. It is then for an applicant
to rebut that evidence. It is not clear why a respondent is not required to
bear the ordinary burden of proving the defence, as required for other defences
in the DDA. The Commission submits that it does not pose an unduly or unfairly
heavy burden on respondents to prove that they had a lawful reason for
requesting the information. It will often be the case that only the respondent
will know why information was requested. This may make an applicant’s task of
rebutting evidence, which may only be slight, impossible.[58]
3.57
Officers from the Attorney-General's Department explained the rationale
behind the provision, and responded to the concerns expressed by submitters:
What we are trying to do is clarify what the requirements are. [n]ew
section 30 subsection (3) puts the onus on the person requesting the
information that the purpose is not for unlawful discrimination...what we are
saying is, 'If you’re seeking that information, you have to establish that the
purpose for which you are seeking it is not for unlawful discrimination,
because you are not going to discriminate against them.' That reverses [the
onus], but what that also does is create some difficulties for the person
asking for the information, because they have to basically prove a negative.
They have to prove that the information was being sought not for unlawful
discrimination. In order to minimise that burden, we say that they are required
to provide evidence that it is within their knowledge. If they can produce
evidence that it is not for the purpose of unlawful discrimination, as long as
that evidence is not rebutted by someone else, it stands basically. It is to
try to rebalance it, in a sense, rather than to change it dramatically, but
recognising that it is very difficult to prove a negative.[59]
3.58
ACCI opposed the amendment, arguing that:
Employers continue to be concerned that they be able to manage
their continuing legal obligations in a manner that allows them to determine
and assess risk to all employees (and the public). This includes employers
assessing employees against the inherent requirements of jobs and assessing OHS
risk. The difficulty with assessing or knowing an employee’s disability (and
genetic predisposition), is that there is no positive obligations on an employee
to disclose to the employer such conditions.[60]
3.59
The committee has reservations about the relatively low burden of proof
placed on the person requesting information, in spite of the fact that they have
the difficult task of demonstrating a negative. On the other hand, the
imposition of a civil standard of proof seems excessive, in which case
requiring a respondent to prove on the balance of probabilities that their
information they requested was not for the purposes of discriminating (or was
for solely for a purpose or purposes other than discriminating) could be too
onerous.
3.60
The committee is also concerned by the wording used in new paragraph
30(3)(a), which provides that the person seeking information must adduce
evidence that the information was not sought for 'the' purpose of unlawfully
discriminating. The committee considers that the use of the word 'the' could
bring about the failure of the test in a case where unlawful discrimination is
only one of a number of purposes for which the information was sought.
3.61
The views put in submissions concerning the Section 30 amendments
illustrate the considerable difficulty in striking the correct balance between
the right to privacy and the need by others for information. No perfect
solution is evident, and the committee takes the view that, subject to a
recommendation amending paragraph 30(3)(a), the Bill proposes a fair and
reasonable way to achieve the aims of the Act.
Amendments to other Acts
3.62
The ALRC pointed out to the committee that neither the Human Rights
and Equal Opportunity Act 1996 (HREOC Act) nor the HREOC Regulations[61],
specifically deal with possible future disabilities. The Essentially Yours
report had recommended the amendment of the HREOC Act and Regulations, as well
as a similar change to the Workplace Relations Act 1996, to specifically
identify the issue of genetic status.[62]
In its submission to the committee, the ALRC called for the committee to
consider whether the enactment of the amendments should be followed up.[63]
The Attorney-General's Department informed the committee that the Government
currently considering the ALRC's recommendations.[64]
3.63
While the argument put forward by the ALRC appears to be sound, with the
exception of a general endorsement of the inclusion in the Bill of genetic
predisposition, the committee took insufficient other evidence on the treatment
of genetic information to make any recommendation as to the amendments called
for by the ALRC.
Extension of Unjustifiable hardship
3.64
The Bill proposes to extend the availability of the defence of
unjustifiable hardship so that it would encompass cases involving
discrimination in education after enrolment, employment between hiring and
dismissal, and administration of Commonwealth laws and programs, sports, and
land. The Bill also clarifies that the onus of proof for the person claiming
unjustifiable hardship lies with the person claiming it.
3.65
Support was garnered from a wide variety of submitters for the extension.[65]
Others expressed qualified support for an extension, such as Vision Australia
who considered an extension warranted except insofar as it would extend to the
administration of Commonwealth laws and programs. Vision Australia's submission
observed that:
The exclusion of the unjustifiable hardship defence from S29 was
not an oversight, and examination of the parliamentary discussion that took
place around the passage of the DDA in 1992 makes it clear that there was a
strong view that the Commonwealth bears an increased burden of responsibility, both
to demonstrate leadership to the community by removing disability discrimination
in its sphere of operations, and also to ensure that people with disability are
not disadvantaged by the administration of its laws and programs. Hence, it was
decided that the Commonwealth would not be able to claim unjustifiable hardship
as a defence to these complaints.
...
In our view, the Commonwealth has moved much too slowly in
removing discriminatory practices in the way it administers laws and programs.
We fear that providing an extra defence will only lead to even slower progress.[66]
3.66
Others saw the matter as one of worsening inconsistency between
jurisdictions. While recognising the arguments underlying the extension, the
Law Council of Australia declined to endorse it, submitting that:
...similar defences in all State and Territory discrimination
statutes are rarely available to all areas of public life covered by the
legislation. Extending the unjustifiable hardship defence to all areas of the
Disability Discrimination Act would create further differences between jurisdictions
in an area of discrimination law that already suffers substantially from a lack
of uniformity and the Law Council suggests that this aspect relating to
extension should be considered carefully by the Committee, as should the need
for extension to all areas.[67]
3.67
New subsection 11(2), which aims to clarify that the onus of proof for
proving unjustifiable hardship lies with the person claiming it, attracted
solid support.[68]
However, the NSW Disability Discrimination Legal Centre was concerned that
section 4, when read together with the new subsection, may be interpreted as
meaning that a person with disability has to, in effect, prove the adjustment
that they are requesting is not an unjustifiable hardship, in order to
establish a prima facie act of discrimination.[69]
However, representatives from the Attorney-General's Department considered that
the Bill made clear that adjustments were presumed to be reasonable, and that
in demonstrating otherwise, the onus fell clearly on the person claiming unjustifiable
hardship.[70]
Migration
3.68
At present, a broad exemption exists in the DDA for anything done by a
person in relation to the administration of the Migration Act 1958 and
its regulations.[71]
The Bill would see the exemption narrowed to include only those acts permitted
or required to be decided under the Act or regulations. While the Explanatory
Memorandum contends that the exemption is intended to cover only incidental
administrative processes, a number of submitters argued that the exemption is
still far broader than was intended by the Productivity Commission when it
framed the recommendation which apparently underpins the amendment.[72]
3.69
While arguing, along with a number of other submitters[73],
for the repeal of section 52 in its entirety, the Human Rights Law Resource
Centre observed that the provisions:
...may mean that disability discrimination is lawful in the
exercise of detention and deportation powers under the Act, and in matters such
as the registration of Migration Agents. There is no sound public policy
rationale for exemptions in these circumstances.[74]
3.70
Furthermore, the Multicultural Disability Advocacy Association of NSW
submitted that Australia was in breach of its human rights obligations by
persisting with the exemption. It submitted that:
Despite its official commitment to the United Nations Convention
on the Rights of Persons with Disability (UNCRPD) through its ratification in
July of 2008, Australia maintains discriminatory policies and practices by
continuing to exempt decisions made under the Migration Act from the coverage
of the DDA. It thereby contravenes Article 4(A), which requires State parties 'to
adopt all appropriate legislative, administrative and other measures for the
implementation of the rights recognized in the ... Convention'.
...
Discriminatory and inconsistent application of the health
assessment requirements in determining eligibility under the Migration Act
focuses on unwarranted assumptions about the potential economic costs of
supporting a migrant or refugee with disability in the Australian community.[75]
3.71
At the committee's hearing in Sydney, Ms Robin Banks added that:
The difficulty with any blanket exemption is that it does not
have any nuance to it; it does not allow for circumstances where, in the case
of migration, a person may in fact be able to establish quite easily that they
would be a very solidly contributing member of the community, that they are
going to be able to contribute to a family situation by being part of a family
that comes to Australia and that the overall cost is not one that Australia as
a country should be concerned about. The way the act operates now is to
effectively say, 'We don’t have to consider that; we can just say that a person
with a disability can be excluded from entering this country as a migrant'.[76]
3.72
When asked whether the provision would have the outcome envisaged in the
Explanatory Memorandum, an officer of the Attorney-General's Department replied
that he considered the provisions:
...achieved that outcome, which is very much to have an exemption
in place for legislative instruments under the Migration Act that may be
discriminatory and ensuring that the Disability Discrimination Act does not
apply there. That is the current approach to it. I know that in recent months
the issue of people with disability and their interaction with the migration
system has been an issue of general public debate, and I understand the
Minister for Immigration and Citizenship announced late last year that there
will be another parliamentary inquiry into the broader issue as well, so there
might be something that will come out of that process.[77]
3.73
The committee understands that terms of reference for an inquiry into
the operation of health and disability with the Migration Act will be referred
to the Joint Standing Committee on Migration in the near future. The committee
is satisfied that the amendments in new section 52 are an improvement on the
provisions currently in place. As to the narrowing of the exemption to the DDA
to cover aspects of the administration of the Migration Act, the committee awaits
with interest the parliamentary inquiry foreshadowed in evidence.
Inherent requirements
3.74
The Bill implements a recommendation of the Productivity Commission to
extend the defence of 'inherent requirements' so that it is available to
employers in all employment situations.[78]
The defence of 'inherent requirements' is a defence that provides that it is
not unlawful to discriminate against a person with disability if he or she
would be unable to perform the inherent requirements of the employment, even if
reasonable adjustments were made. At present, the defence is only available to
an employer responding to a claim of disability discrimination with respect to
the offer of employment or dismissal.
3.75
However, it is important to note that the Bill would not make the
defence available in cases of discrimination relating to opportunities for
promotion, training or transfer. According to the Attorney-General's
Department, this ensures that people with disability retain an entitlement to have
the opportunity to seek a promotion or transfer on an equal basis with others.[79]
3.76
PIAC called for the clarification of the burden of proof in relation to
the ability to fulfil inherent requirements, and for a duty to be placed on
employers to properly consider the job's inherent requirements and the
applicant's ability to fulfil them, and that in the event they fail to do so,
damages or revisitation of the decision be considered as remedies. The Centre
took the view that the respondent to a claim of discrimination ought to be
capable of proving that it properly considered the inherent requirements and
whether or not the complainant could fulfil those requirements at the time of making
a challenged decision rather than at some later time.
3.77
To do otherwise, argues PIAC, would allow discriminatory attitudes to be
justified at a later stage:
Take, for example, the situation of an employer deciding not to
employ a person because of that person’s disability without having any basis
for that decision and without considering the question of inherent requirements
and the person’s capacity to fulfil those requirements. If this decision became
the subject of a complaint of unlawful disability discrimination, the employer
should not be able to justify its actions after the fact [by] establishing that
the person could not fulfil the inherent requirements of the job. Rather, the
conduct should be found to be unlawfully discriminatory with possible remedies
including damages for the failure to properly consider the person’s application
and/or a requirement that the employer revisit the decision giving full
consideration to the question of inherent requirements and the person’s
capacity to fulfil such requirements. This approach would discourage employers
from continuing to hold discriminatory views and require them to establish
proper employment processes that identify up-front the inherent requirements of
positions and determine effective mechanisms of testing through the recruitment
process whether or not candidates, with and without disabilities, fulfil those
inherent requirements.[80]
3.78
The committee can see the potential for a respondent to take advantage
of the provision as it is currently drafted, although any requirement to
demonstrate that inherent requirements were considered prior to the decision
being made would be difficult to make out.
3.79
The committee takes the view that the extension of 'unjustifiable
hardship' will promote the fair, just and reasonable operation of
discrimination law, and consequently supports its inclusion in the Bill.
Standing before a court or commission
3.80
Various submitters, including the NSW Disability Discrimination Legal
Centre and People with Disabilities, raised as a concern the restrictions
placed on legal standing before judicial and quasi-judicial bodies in respect
of initiating actions for discrimination. Currently, representative bodies do
not have standing in their own right. A person who alleges unlawful
discrimination must take the complaint forward.[81]
3.81
The committee heard that this situation derives from a conflict between
the representative complaints provisions in the HREOC Act and those in the Federal
Court of Australia Act 1976.[82]
The result of the conflict, according to the NSW DDLC, is that:
...systemic issues cannot be dealt with through representative
organisations representing the class of people affected, unless seven members
of a class can be identified, or unless it can prove that it itself is affected
by the conduct, which, given the barriers noted above, happens very rarely. Advocacy
organisations are now reluctant to bring complaints to challenge instances of
systemic discrimination due to uncertainty as to whether the organisation will
be found to have standing to do so if the matter proceeds beyond the AHRC
level. If a complaint is not brought in relation to a specific issue or service
it will continue to be discriminatory...Amending the Federal Court of Australia
Act to make the standing provisions consistent with those in the HREOC Act
would address this issue.[83]
3.82
The committee notes that the Productivity Commission, in its 2004 review
of the DDA, recommended that:
The Human Rights and Equal Opportunity Commission Act 1986
should be amended to allow disability organisations with a demonstrated
connection to the subject matter of a complaint to initiate complaints in their
own right and proceed to the Federal Court or Federal Magistrates Court if
required.[84]
3.83
Representatives of the Attorney-General's Department submitted that this
issue was beyond the scope of the Bill before the committee, and had
implications for other areas of litigation.[85]
In a subsequent written response to the committee's question, the Department
reported that the Government is currently considering the Productivity
Commission's recommendation.[86]
Access to electoral process
3.84
The committee took evidence from a number of submitters that went to the
appropriateness of procedures for sight-impaired people to cast a secret ballot
at an election. The committee heard that the Electoral Act allows only for electronic
voting, one measure which can facilitate secret voting by the sight-impaired,
to be conducted on a trial basis. While the committee was led to understand
that electronic voting machines were used at 29 pre-polling centres during the
2007 election, only about 850 sight-impaired voters were able to use the
facility. [87]
3.85
The committee was pleased to hear that the trial was successful, and
that plans are underway to make electronic voting available on a wider basis.[88]
Such an expansion of electronic voting, or other methods of assisting those for
whom normal voting procedures are difficult, is consistent with a
recommendation of the Productivity Commission, which found that:
The Commonwealth Electoral Act 1918 should be amended to ensure
that federal voting procedures are accessible (physically and in provision of
information and independent assistance), and the Australian Government should
encourage State and Territory governments to follow suit.[89]
Recommendation 1
3.86
That the Government undertake additional consultation with stakeholders
and give further consideration to refining the test for direct discrimination
in the DDA, and in particular:
- The removal of the 'comparator' component contained at
subsections 5(1) and 5(2) of the Act, and at new sections 5(1) and 5(2)(b) of
the Bill;
- Whether the definition of discrimination contained in the Discrimination
Act 1991 (ACT) should be adopted in the DDA.
Recommendation 2
3.87
That the Government consider the inclusion in either the DDA or related
guidelines of examples to better illustrate the intended operation of the
'comparator' test in subsection 5(1) of the Bill.
Recommendation 3
3.88
That paragraph 30(3)(a) be amended to the effect that:
(a) Evidence is produced that the first person requested or
required the information other than for a purpose of unlawfully discriminating
against the other person on the ground of the disability.
Recommendation 4
3.89
That the Government consider implementing recommendation 13.5 of the
Productivity Commission's Review of the Disability Discrimination Act 1992.
Recommendation 5
3.90
That the Australian Electoral Commission expedite the implementation of
more accessible voting procedures for voters with a disability.
Recommendation 6
3.91
That subject to recommendation 3, the Bill be passed.
Senator Trish Crossin
Chair
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