Presentation to Productivity Commission DDA review hearing
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Graeme Innes AM Brisbane 1 March 2004 |
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Thank you for the opportunity to be here today
We would like to begin by emphasising the limited role of discrimination law - that is, we agree to some extent with comments by ACCI that equality cannot be achieved solely by providing stronger antidiscrimination legal provisions.
Reduction or elimination of discrimination is itself only a means to the end of promoting the equal enjoyment of human rights, including more equitable and effective participation for people with disabilities in economic and social life - in areas such as employment, education, access to goods and services as well as in rights and responsibilities as citizens and in the legal system.
We hope that this inquiry leads to identification and implementation of means to reduce real or perceived costs of participation for people with disabilities in various areas of life
We agree with ACCI on the need to avoid perverse outcomes where apparently stronger legislative requirements to deal with discrimination could have negative impacts on participation and equality including through creating disincentives to employers.
For this reason HREOC supports the flexibility provided in the DDA by concepts such as unjustifiable hardship while also supporting measures to reduce uncertainty (and consequent costs) , including development of standards, and measures for recognition of industry based codes and standards.
HREOC's support for clarification of duties to make reasonable adjustments under the DDA should be seen in this context. This is distinct in our view from possible "positive duties" to review and remove barrier on a systematic basis, which resemble (non quota based) affirmative action measures applying to women's employment. In view of the concerns expressed by ACCI it should be noted that submissions appear to have proposed these affirmative action type measures of positive process duties only for government and larger employers .
HREOC continues to see non-legislative measures as particularly important to support the objectives of the legislation in the employment area. Issues here include the effectiveness of public support for costs of employment participation.
A number of submissions also support the need for improved information and advice to employers on making reasonable adjustments and accommodating disability. HREOC can make some contribution to this through revising and expanding its own information on employment but continues to see a need for a service similar to the Job Accommodation Network which operates in the United States. A similar expert service could also be relevant in the education area.
HREOC also considers that procurement requirements for public sector equipment to be accessible or readily adaptable, as exist in the USA, could have a significant impact in reducing perceived and actual difficulties in accommodating people with disabilities. (Height adjustable desks as an example.)
Support for consideration an enhanced HREOC role through a possible capacity for HREOC or the Commissioner to take proceedings in the court is contemplated only as a means of having systemic issues addressed which may not be able to be brought forward most effectively by individual complainants. It is not seen as a substitute for the complaint process, or as HREOC taking on a role of representing complainants or acting for them in large numbers of cases. It is recognised that a number of issues of the relationship of such a role to the complaint process would remain to be considered (including any impact that settlement of an action by HREOC ought to have on complaints and the relationship of this to the exemption process).
We note that there was limited discussion in submissions of issues around discriminatory questions and that the draft report does not appear to specifically pick this issue up. Some clarification in this area would seem useful both because of the confused drafting of the current provision as a matter of law and because of possible costs and disincentives presented by uncertainty about what information may be requested. Our earlier submission supported consideration of the Northern Territory provision in this area as a possible model. Again it should be emphasised that an important objective in this are is to encourage exchange of information on disability for positive purposes (including to identify reasonable adjustments, to confirm a person's ability to perform job requirements, or to identify what level of risk may be associated with a disability so as to facilitate insurance cover) rather than only the competing considerations of protecting privacy and preventing unnecessarily intrusive questions which might serve as the basis for discrimination.
The Cancer Council of Victoria raised a concern that since addiction to nicotine could be considered a disability, measures to reduce or ban smoking could be hampered by the DDA; and that this should be addressed by providing a defence for measures reasonably necessary to protect the health and safety of any person.
It is correct that the Disability Discrimination Amendment Bill 2003 currently before the Parliament fails to address addictions other than to prohibited substances.
However, it should be noted that the only instances of use of the DDA in relation to smoking have been against rather than in favour of smoking being permitted in particular circumstances, by people whose disabilities made them particularly susceptible to smoke. Neither the Cancer Council nor any other body has previously raised with HREOC the concern now presented.
The Cancer Council's concern that there could be liability for direct discrimination in not permitting smokers to smoke cannot be sustained following the High Court decision in Purvis which makes clear that general bans or restrictions on behaviour, including smoking, should be approached by reference to indirect rather than direct discrimination. Indirect discrimination already contains the reasonableness limitation sought by the Cancer Council.
It may be desirable nonetheless to consider means of improving co-ordination between anti-discrimination and health and safety laws. It does appear anomalous that the DDA provides a defence for measures reasonably necessary to protect public health where a person's disability is an infectious disease but not in other circumstances.
HREOC would be concerned however that any reform in this area should not lead employers or others to believe that people with disabilities generally present health and safety risks or that discriminatory measures are generally a necessary and permissible response to such risks. Such beliefs can disadvantage people with a range of disabilities including people who have or who have survived cancer.
Consideration of any amendment such as that proposed by the Cancer Council should include consideration of a provision making clear that reasonable adjustments to enable a person to meet health and safety requirements should be made (an example being a person who cannot use standard safety equipment but can use equally effective modified safety equipment ).
Greater certainty in this area might also be achieved through use of the capacity to prescribe laws in relation to OH&S and/or environmental standards. This approach, or inclusion of relevant environmental standards in future expansion of standards on access to premises, might also provide an appropriate means of addressing issues which have been raised in numerous submissions regarding environmental illness or chemical sensitivity.
Notes on draft recommendations:
Draft Finding 5.1: The number of complaints under the Disability Discrimination
Act 1992 and participants' views indicate that disability discrimination
in employment remains a significant issue. Overall, the Act appears to
have been least effective in reducing discrimination in employment.
Response: Agree. HREOC endorses the need for improved strategies in this
area, in particular endorsing the view of the draft report that further
consideration is needed of means of meeting participation costs. HREOC
is also currently discussing with industry representatives and government
possibilities for improving availability to employers of information on
means for accommodating disability in employment.
Draft Finding 5.2: Identification of students with disabilities and access to disability programs in mainstream schools have grown substantially since the Disability Discrimination Act 1992 was enacted. Although it is difficult to distinguish the effects of the Act from the effects of government policies of integration in education, the Act appears to have had some effect in improving educational opportunities for school students with disabilities.
Response: Agree but support need for further measures to promote effective and equal education access, including clarification of obligations through Disability Standards and increased funding support for measures to ensure access and inclusion in education at all levels.
DRAFT Finding 5.3: The Disability Discrimination Act 1992 appears to
have had some impact on making new public buildings more accessible. However,
inconsistencies between the Building Code of Australia and the Act limit
the effectiveness of the Act. Formally linking the building code to a
DDA standard on access to premises will address these inconsistencies.
Response: Agree.
The Disability Discrimination Act 1992 has been less effective in improving
the accessibility of existing buildings, and the proposed disability standard
will not address this.
Response: Note that the proposed disability standard will in fact address
accessibility of existing buildings which are undergoing significant upgrading
or redevelopment. Normal building cycles (affecting approximately 5% of
the building stock each year), although not reaching every building, should
see very significant increases in accessibility of existing buildings
within a 15-20 year timeframe, making the progress to be expected through
these proposed Standards more closely comparable to that being achieved
through the Disability Standards for Accessible Public Transport than
is perhaps generally realised.
DRAFT Finding 5.4: The Disability Discrimination Act 1992 appears to have been relatively effective in improving the accessibility of public transport in urban areas. However, it has been less effective in relation to taxis and in regional areas.
Comment: Agree that progress in urban transport has been more rapid than in rural and regional areas, driven to some extent by different replacement cycles but also in many cases by more direct public sector funding availability. We would support review of incentives for acceleration of introduction of accessible services by private sector operators including in the taxi industry.
Draft Finding 5.5: The Disability Discrimination Act 1992 has played a significant role in reducing discrimination in access to some goods and services, including electronic banking and telecommunications.
Response: Agree. HREOC continues to pursue means for reducing discrimination in access to goods and services in these and other areas.
Draft Finding 5.6:The Disability Discrimination Act 1992 appears to have been more effective for people with mobility and sensory impairments than those with a mental illness, intellectual disability, acquired brain injury, multiple chemical sensitivity or chronic fatigue syndrome. It also appears to have been less effective for people with dual or multiple disabilities and those living in institutional accommodation.
Response: Agree.
Draft Finding 5.7: People with disabilities from Indigenous or non-English speaking backgrounds, and those living in regional areas face multiple potential sources of disadvantage. However, reasons for this often relate to factors other than disability discrimination, such as race discrimination, language barriers, socioeconomic background and remoteness.
Response: Agree
Draft Finding 5.8: Given its relatively short period of operation, the Disability Discrimination Act 1992 appears to have been reasonably effective in reducing overall levels of discrimination. However, there is still some way to go to achieve its object of eliminating discrimination.
Response: Agree
Chapter 6 Equality before the law
Draft Finding 6.1: Current arrangements in the Human Rights and Equal Opportunity Act 1986 (s.46) dealing with discriminatory acts under Awards are appropriate.
Response: Agree
Draft Finding 6.2: People with disabilities living in institutional settings face particular barriers to achieving equality before the law. However, there is limited scope to apply the Disability Discrimination Act 1992 in this area.
Response: Agree
Draft Finding 6.3: The process of de-institutionalisation needs to be supported by access to quality disability services. However, there are limitations to the use of the Disability Discrimination Act 1992 to challenge government decisions about provision of services.
Response: Agree
Request for information
The Productivity Commission seeks further comment on the desirability of developing an accommodation disability standard, and the forms of accommodation such a standard should cover (for example, private rental accommodation, supported accommodation and/or institutional accommodation).
Response: As indicated in HREOC's submissions in response to the Issues Paper we are not convinced that development of standards in this area is the best way forward at this point.
Draft Finding 6.4: There are practical limitations to achieving equality before the law for people with cognitive disabilities. Existing State and Territory arrangements safeguarding the rights of people with cognitive disabilities appear to be working appropriately, but Human Rights and Equal Opportunity Commission research in this area can provide a useful national focus and assist regulatory benchmarking by the States and Territories.
Response: Note limited HREOC resources and that Law Reform Commissions also have functions and have performed work in this area.
Draft Finding 6.5: Available evidence suggests that people with disabilities, particularly people with cognitive disabilities, are over-represented in the criminal justice system (as both victims of crime and as alleged offenders).
Draft Recommendation 6.1 The Attorney General should commission an inquiry into access to justice for people with disabilities, with a particular focus on practical strategies for protecting their rights in the criminal justice system.
Response: Determination of whether such an inquiry would be best conducted by HREOC or another body might be appropriately left for further discussion with government in responding to the report.
Draft Finding 6.6: Standards of physical access and independent assistance at polling places are not uniform. Given the importance of voting, it is inappropriate to rely on individual complaints to improve access.
Draft Recommendation 6.2: The Australian Government should amend the Electoral Act 1918 to ensure polling places are accessible (both physically and in provision of independent assistance) to ensure the right to vote of people with disabilities.
Response: Note that accessibility of State and local electoral processes are also relevant and that polling place access is not the only issue, consideration also being required of accessible voting methods including for people with vision impairments. Alternatives to legislative action such as development of standards and codes could also be considered.
Draft Finding 6.7: There is uncertainty about the application of the Disability Discrimination Act 1992 to acts (actions) done in compliance with laws that have not been prescribed under section 47 of the Act.
Draft recommendation 6.3
The Disability Discrimination Act 1992 should be amended to make it clear
that acts (actions) done in compliance with non-prescribed laws are not
exempt from challenge under the Act, regardless of the degree of discretion
of the decision maker.
Response: HREOC is not convinced that the uncertainty said to exist in this area amounts to justification for amendment as proposed. Recommend further review of need for prescription/amendment of discriminatory laws as an alternative.
Request for information
The Productivity Commission seeks further information on how the Disability
Discrimination Act 1992 should be amended to clarify the scope to challenge
other laws with discriminatory effects, particularly:
the desirability of specific 'equality before the law' provisions (modelled
on section 10 of the Racial Discrimination Act 1975)
their interaction with provisions relating to 'special measures' (s.45)
their interaction with provisions relating to 'prescribed laws' (s.47).
Response: Support inclusion of RDA section 10 equivalent subject to measures to preserve beneficial laws by prescription; note however that many equality before the law issues relate rather to lack of appropriate resources and facilities in practice rather than to terms of legislation.
Chapter 7 Promoting community recognition and acceptance
DRAFT Finding 7.1 : In general, community awareness of disability issues
and attitudes towards people with disabilities appear to have improved
in the past decade. Scope for further improvement remains, however, both
in certain areas of activity, such as employment, and in relation to particular
disabilities, such as mental illness.
Response: Agree
DRAFT Finding 7.2: The Human Rights and Equal Opportunity Commission's education and research function is an important aspect of promoting community recognition and acceptance.
Response: Agree, noting limited resources
DRAFT Finding 7.3: Public inquiries appear to have had positive impacts
to date on promoting community recognition and acceptance, due to their
extensive consultation processes, and public availability of submissions
and other material.
Response: Agree
DRAFT Finding 7.4: Some complaints, particularly high profile cases proceeding beyond conciliation, appear to have helped promote community recognition and acceptance. However, the usefulness of many complaints in this respect is constrained by the confidentiality of conciliated agreements.
Response: Agree but note importance of conciliation in resolving cases and measures taken by HREOC to provide non-identifying information on outcomes.
DRAFT Finding 7.5: The process of developing and implementing disability standards appears to have had a positive impact on promoting recognition and awareness in some sectors, but the overall educative impact of disability standards has been limited because only one has been completed to date.
Response: Agree but note positive prospects for adoption of standards in two moe areas during 2004.
DRAFT Finding 7.6: Voluntary action plans have raised awareness but their overall impact has been limited by the relatively small number that have been lodged.
Response: Agree, noting however high rate of lodgement in some areas (local government, universities.)
DRAFT Finding 7.7: Guidelines and, to a lesser extent, advisory notes appear to have raised awareness of disability issues and Disability Discrimination Act 1992 requirements.
Response: Agree
DRAFT Finding 7.8: The Disability Discrimination Act 1992 appears to have contributed to improvements in community awareness of disability issues and attitudes towards people with disabilities, but there is limited awareness of the Act itself. There is scope to improve awareness of the Act further.
Response: Agree but note limited resources and need to ensure cost effectiveness of promotional activities.
DRAFT Finding 7.9: The Human Rights and Equal Opportunity Commission has a role in raising the awareness of the Disability Discrimination Act 1992 among professional associations and educators.
Response: Agree.
Draft Finding 7.10: The Human Rights and Equal Opportunity Commission has a role in developing a schools resource specifically addressing disability issues, along the lines of that developed for race discrimination issues.
Response: Will consider recommendation in consultation with potential users of such a resource.
DRAFT Finding 7.11: The Human Rights and Equal Opportunity Commission's website has become an important way for people to access information. Due to limited Internet access among some groups, however, other means of distributing information remain important.
Response: Agree, noting that information is provided in other forms on request and that major publications are issued in print and other formats as well as on the web.
Draft Finding 7.12: There is potential for the Human Rights and Equal Opportunity Commission to expand cooperation with State and Territory anti-discrimination bodies and other organisations in promoting community recognition and acceptance of the rights of people with disabilities.
Response: Agree; possible further co-operative work is under regular discussion with State/Territory counterparts.
Chapter 8 Competition and economic effects of the DDA
request for information
The Productivity Commission seeks information on the costs and benefits to organisations of complying with the provisions of the Disability Discrimination Act 1992 and disability standards. The Commission would welcome information on the nature of those costs and benefits, and on their magnitude.
Draft Finding 8.1: Available evidence suggests that the costs of complying with the Disability Discrimination Act 1992 and disability standards vary widely across organisations. For many organisations, these costs could be quite small.
Response: Agree, noting limitations of available evidence.
Draft Finding 8.2: The costs of complying with the Disability Discrimination Act 1992 can be unpredictable in the case of complaints-based enforcement. Disability standards can help clarify the costs of complying with the Act.
Response: Agree.
Draft finding 8.3: The progress achieved by the Disability Discrimination Act 1992 in promoting a more accessible physical environment is likely to have removed some barriers to the employment of people with disabilities.
Response: Agree, noting however that employment impacts of increased
accessibility of transport and buildings may be limited until quite high
proportions of accessibility are reached.
Draft Finding 8.4: A reduction in disability discrimination is likely
to contribute to 'social capital' (community values and principles that
facilitate cooperation within and among groups) and so have broad benefits
for Australian society.
Response: Agree and endorse recognition of economic benefits of this type of effect.
Draft Finding 8.5: The complaints-based implementation of the Disability Discrimination Act 1992 has the potential to distort competition by imposing an uneven regulatory burden. By contrast, disability standards tend to promote a uniform playing field and to be more competitively neutral. They might, however, impose larger costs on the economy.
Response: Note that standards can also include elements of flexibility, such as the provision for unjustifiable hardship to be considered within the Accessible Public Transport Standards, the major purpose of which was to ensure that the position of smaller transport operators could be taken into account.
Draft Finding 8.6: It is generally appropriate for the costs imposed on employers and service providers by the Disability Discrimination Act 1992 to be shared between organisations, consumers and governments. The extent of government funding would need to vary depending on whether the Act is implemented through complaints or disability standards.
Response: Reiterate concern that at present in many cases costs of disability remain with people with disabilities and their families and that this is not appropriate in social justice terms or efficient (given the lack of ability of individuals to insure comprehensively against costs of possible disability for themselves and their families or to achieve individually the systemic changes requied to ensure that people with disabilities can participate and contribute in economic and social life).
Chapter 9 Defining discrimination
DRAFT Finding 9.1: The objects of the Disability Discrimination Act 1992 (s.3) are appropriate and do not require amendment.
Response: While amendment is not essential we continue to think that inclusion of a positive equality/participation objective could be beneficial
Draft Finding 9.2: The Disability Discrimination Act 1992 is based on a 'social model' of disability discrimination, but it uses a medical definition of disability. This is appropriate. A definition of disability based on the 'social model' is not practical.
Response: Agree
Draft Finding 9.3: The definition of disability in the Disability Discrimination Act 1992 (s.4) does not explicitly include medically recognised symptoms (where the underlying cause is unknown), genetic abnormalities or behaviours related to disabilities.
Draft Recommendation 9.1: The definition of disability in the Disability
Discrimination Act 1992 (s.4) should be amended to ensure that it includes:
medically recognised symptoms where a cause has not been medically identified
or diagnosed genetic abnormalities and conditions / behaviour that is
a symptom or manifestation of a disability.
Response: As indicated in our submission to the recent ALRC inquiry we agree that amendment to clarify coverage of genetic discrimination would be desirable . Not convinced regarding other needs for amendment of definition of disability.
Draft Finding 9.4: The distinction in the Disability Discrimination Act 1992 between direct and indirect discrimination is appropriate.
Response: Agree
Draft Finding 9.5: The requirement to make a comparison between the treatment of a person with a disability and the treatment of a person without the disability to determine direct discrimination in the Disability Discrimination Act 1992 (s.5(1)) is appropriate.
Response: Agree.
Draft Finding 9.6: The definition of direct discrimination in the Disability Discrimination Act 1992 (s.5(1)) is unclear about what constitutes circumstances that are 'not materially different' for comparison purposes.
Response: Agree.
Draft Finding 9.7: The definition of direct discrimination in the Disability Discrimination Act 1992 (s.5(2)) does not explicitly make failure to provide 'different accommodation or services' required by a person with a disability 'less favourable treatment'. The provision has not been interpreted consistently.
Response: Agree
DRAFT Recommendation 9.2 : The definition of direct discrimination in
the Disability Discrimination Act 1992 (s.5) should be amended to:
clarify what constitutes circumstances that are 'not materially different'
for comparison purposes
make failure to provide 'different accommodation or services' required
by a person with a disability 'less favourable treatment'.
Response: A distinct duty to make reasonable adjustments may be a more effective approach than through seeking to remedy defects of section 5.
Draft Finding 9.8: The proportionality test in the definition of indirect discrimination in the Disability Discrimination Act 1992 (s.6(a)) imposes an unnecessary evidentiary burden on complainants.
Response: Not convinced this has been a significant problem in practice
Draft Finding 9.9: The definition of indirect discrimination in the Disability Discrimination Act 1992 (s.6(b)) does not provide sufficient guidance on how to determine whether a requirement or condition is 'not reasonable having regard to the circumstances of the case'.
Response: Agree with desirability of amendment on SDA lines.
Draft Finding 9.10: The burden of proving that a requirement or condition is 'not reasonable having regard to the circumstances of the case' in the definition of indirect discrimination in the Disability Discrimination Act 1992 (s.6(b)) falls on the complainant. This is neither appropriate nor efficient.
Response: Agree that evidential burden should apply to respondent for reasonableness as with unjustifiable hardship.
Draft Finding 9.11: The definition of indirect discrimination in the Disability Discrimination Act 1992 (s.6) does not include proposed acts of indirect discrimination. This is not appropriate.
Response: Agree
Draft Recommendation 9.3: The definition of indirect discrimination in
the Disability Discrimination Act 1992 (s.6) should be amended to:
remove the proportionality test
include criteria for determining whether a requirement or condition 'is
not reasonable having regard to the circumstances of the case'
place the burden of proving that a requirement or condition is reasonable
'having regard to the circumstances of the case' on the respondent instead
of the complainant
cover incidences of proposed indirect discrimination.
Response: Agree with second point; agree with third point in terms of evidential rather than legal burden; not convinced of need to remove proportionality test.
Draft Finding 9.12: The Disability Discrimination Act 1992 does not make harassment unlawful in all of the areas of activity in which disability discrimination is unlawful.
Request for information
The Productivity Commission requests further information on options for
extending the scope of the harassment provisions and addressing the vilification
of people with disabilities.
Response: To be considered following further public submissions.
Chapter 10 Defences and exemptions
Draft Finding 10.1: The inherent requirements provisions in the employment
sections of the Disability Discrimination Act 1992 are appropriate and
do not require amendment. Guidelines to explain how inherent requirements
should be identified in practice could be useful.
Response: Agree
Draft Finding 10.2: An unjustifiable hardship defence in the Disability Discrimination Act 1992 is appropriate. It helps to promote adjustments for people with disabilities that will produce benefits for the community as a whole, while limiting any requirements that would impose excessive costs on individual employers, service providers or others in the community.
Response: Agree
Draft Recommendation 10.1 : The Disability Discrimination Act 1992 should be amended to allow an unjustifiable hardship defence in all substantive provisions of the Act that make discrimination on the ground of disability unlawful, including education and the administration of Commonwealth laws and programs.
Response: Agree but noting that this should preferably be approached as part of a package including positive obligations in relation to reasonable adjustment.
Draft Finding 10.3: The concept of unjustifiable hardship does not lend itself to a generic definition. It is best determined through the broad criteria in the Disability Discrimination Act 1992 (s.11) that can be applied flexibly to individual cases.
Response: Agree, but noting that it is appropriate for standards on specific issues to provide further guidance on the application of unjustifiable hardship or equivalent concepts in those areas rather than necessarily simply reproducing the terms of sefion 11.
Draft Recommendation 10.2: The criteria for determining unjustifiable hardship in the Disability Discrimination Act 1992 (s.11) should be amended to clarify that community-wide benefits and costs should be taken into account.
Response: Agree.
Draft Finding 10.4: The absence of the term 'reasonable adjustment' in
the Disability Discrimination Act 1992 is appropriate. It is sufficient
for the Act to require adjustments to be made up to the point where they
cause an unjustifiable hardship.
The term 'reasonable adjustment' causes confusion when used in guidelines
and other explanatory materials for the Act.
Response: Disagree with recommendation and with view that use of term reasonable adjustment causes any widespread level of confusion. The major issue in this area is rather the lack of any clear and comprehensive statement in the Act of a duty to make adjustments. The principal current source of obligations to make adjustments in the DDA at present is s6, in relation to which it is clearly correct to use the term "reasonable".
Draft Finding 10.5: A partial exemption for insurance and superannuation in the Disability Discrimination Act 1992 (s.46) is appropriate, but its current scope is uncertain.
Draft Recommendation 10.3: The Disability Discrimination Act 1992 should
be amended to clarify what are 'other relevant factors' for the purpose
of the insurance and superannuation exemption (s.46). 'Other relevant
factors' should not include:
stereotypical assumptions about disability that are not supported by reasonable
evidence
unfounded assumptions about risks related to disability.
Response: Note that issues in this area are currently under consideration by the Federal Court and by HREOC in reviewing the current insurance and superannuation guidelines under the DDA.
DRAFT Finding 10.6: The limited exemptions in the Disability Discrimination Act 1992 for combat duties and peacekeeping services in the Defence Forces (s.53) and peacekeeping services by the Australian Federal Police (s.54) are appropriate and do not require amendment.
Response: As noted previously HREOC regards the inherent requirements defence as sufficient in this area.
Draft Finding 10.7: The scope of the Migration Act 1958 exemption in the Disability Discrimination Act 1992 (s.52) is uncertain.
Draft Recommendation 10.4
The exemption of the Migration Act 1958 in the Disability Discrimination
Act 1992 (s.52) should be amended to ensure it:
exempts the areas of the Migration Act and regulations that are directly
relevant to the criteria and decision-making for Australian entry and
migration visa categories but
does not exempt more general actions done in the administration of Commonwealth
migration laws and programs.
Response: Endorse limitation of migration exemption to migration decisions only rather than other actions in administering the Act and regulations such as accessibility of migration related information, premises and facilities and processes.
Draft Finding 10.8: The scope of the 'special measures' exemption in the Disability Discrimination Act 1992 (s.45) is uncertain.
Draft Recommendation 10.5
The 'special measures' exemption in the Disability Discrimination Act
1992 (s.45) should be clarified to ensure that it:
exempts the establishment, eligibility and funding arrangements of 'special
measures' that are reasonably intended to benefit people with disabilities
but
does not exempt general actions done in the administration of 'special
measures' that are reasonably intended to benefit people with disabilities.
Response: Agree.
Draft Finding 10.9
The current provisions of the Disability Discrimination Act 1992 dealing
with productivity-based wages are appropriate. However, there is some
uncertainty about the interaction between provisions dealing with productivity-based
wages (s.47(1)(c)) and the exemption for 'special measures' (s.45).
Draft Recommendation 10.6
The Disability Discrimination Act 1992 should be amended to clarify that
the specific provisions governing productivity-based wages (s.47(1)(c))
take precedence over the general exemption for 'special measures' (s.45).
Response: Agree.
Draft Finding 10.10 On balance, some exemptions from the Disability Discrimination Act 1992 are appropriate. They must be clearly defined and restricted to only those aspects of legislation or regulation for which an exemption is necessary for other public or social policy reasons.
Response: Agree
Chapter 11 Complaints
Draft Finding 11.1
The complaints process, together with the threat of complaints, can be
powerful tools for addressing discrimination on the ground of disability.
Draft Finding 11.2
Fear of victimisation can create a significant barrier to use of the complaints
process. However, there have been no prosecutions under the Disability
Discrimination Act 1992 victimisation provisions (s.42).
Request for information
The Productivity Commission is seeking further comment on how fear of
victimisation could be addressed, for example, through improved awareness
of the victimisation provisions, changes to the offence provisions or
changes to the penalty.
Response: Await further public comments
Draft Finding 11.3
People with disabilities can face significant barriers to using the Disability
Discrimination Act 1992 complaints process, which can reduce its effectiveness.
Barriers include:
the financial and non-financial costs of making a complaint
the complexity and potential formality of the process (although the introduction
of the Federal Magistrates Service as an alternative to the Federal Court
has improved access)
the evidentiary burden on complainants
the fear of victimisation if a complaint is made (which can be greater
in institutions and small communities)
the inequality of resources and legal assistance between complainants
and respondents.
Draft Finding 11.4
According to Human Rights and Equal Opportunity Commission surveys, both
complainants and respondents appear reasonably satisfied with its complaints
handling processes.
Draft Finding 11.5
The Human Rights and Equal Opportunity Commission's complaints handling
timeliness appears to be comparable to that of the States and Territories.
Uncertain case loads and investigation requirements make it inappropriate
to impose statutory time limits on either accepting or rejecting complaints,
or conciliation. However, administrative targets can play a useful role
in performance monitoring and providing guidance to parties to complaints.
Request for information
The Productivity Commission seeks further comment on whether the enforceability
of conciliated agreements should be improved and, if so, what approach
should be adopted.
Draft Finding 11.6
The Human Rights and Equal Opportunity Commission's location in Sydney
does not appear to be a barrier to Disability Discrimination Act 1992
complainants outside New South Wales. However, the majority of complainants
clearly favour State and Territory based anti-discrimination bodies.
Draft Recommendation 11.1
The Human Rights and Equal Opportunity Commission should enter into formal
arrangements with State and Territory anti-discrimination bodies to establish
a 'shop front' presence in each jurisdiction. This would reduce confusion
for people wishing to obtain advice or lodge a complaint. The Human Rights
and Equal Opportunity Commission should retain responsibility for accepting
or declining complaints and for conducting conciliations.
Draft Finding 11.7
There are net benefits from allowing parties to conciliation to determine
the level of confidentiality, but for the Human Rights and Equal Opportunity
Commission to publicise outcomes as widely as possible subject to maintaining
that confidentiality.
Draft Finding 11.8
Transfer of the determination making power to the Federal Court does not
appear to have discouraged complaints to the Human Rights and Equal Opportunity
Commission.
Draft Finding 11.9
Uncertainty about cost orders in the federal courts affects incentives
and outcomes at the conciliation stage of complaints handling. It is likely
that some cases of unlawful disability discrimination are not being adequately
addressed.
Draft Recommendation 11.2
Subject to a review of the implications for other federal discrimination
laws, the Human Rights and Equal Opportunity Commission Act 1986 should
be amended to incorporate grounds for not awarding costs against complainants
in the Federal Court and Federal Magistrates Service.
Response: These findings and recommendations are generally consistent with HREOC's views indicated in its submissions.
Request for information
The Productivity Commission is seeking comment on the criteria to be included
in guidelines for the Federal Court and Federal Magistrates Service in
awarding costs in cases brought under the Disability Discrimination Act
1992. Participants might like to comment on the criteria suggested by
the Disability Discrimination Legal Service or factors considered relevant
in previous discrimination cases.
Response: await further public input.
Draft Recommendation 11.3
The Human Rights and Equal Opportunity Commission Act 1986 (s.46PO) should
be amended to allow complainants up to 60 days to lodge an application
relating to unlawful discrimination with the Federal Court or Federal
Magistrates Service.
Response: agree
Draft Finding 11.10
The Disability Discrimination Legal Services make an important contribution
to the effectiveness of the Disability Discrimination Act 1992 complaints
process, and to ensuring equality before the law for people with disabilities.
Response: Agree but note need for accountability of services and role in resourcing disability community rather than only individual clients.
Draft Finding 11.11
In some circumstances, individual complaints can lead to systemic change.
They have been effective in areas involving physical and communication
barriers. However, there are limits on the extent to which the individual
complaints system can achieve systemic change.
Response: Agree
Draft Finding 11.12
There appears to be some confusion about the ability of disability organisations
and advocacy groups to initiate representative complaints with the Human
Rights and Equal Opportunity Commission and with the federal courts. This
is likely to have discouraged organisations from making representative
complaints.
request for information
The Productivity Commission requests further comment on the implications
of allowing disability organisations with a demonstrated connection to
the subject matter of a complaint to initiate a Disability Discrimination
Act 1992 complaint with the Human Rights and Equal Opportunity Commission
and to pursue that complaint to the federal courts. In particular:
What procedural issues would have to be addressed?
How should disability organisations be defined?
How should a 'demonstrated connection' be defined?
Response: Await further public input but remain to be convinced that the major barriers to organisations using the DDA have been issues of standing to do so.
Draft Finding 11.13
The Human Rights and Equal Opportunity Commission's current complaints
handling role is appropriate and should not extend to advocacy for individual
complainants.
Response: Agree
Draft Recommendation 11.4
The Human Rights and Equal Opportunity Commission Act 1986 (s.46P) should
be amended to allow the Human Rights and Equal Opportunity Commission
to initiate complaints under prescribed circumstances. Administrative
separation should be maintained between its complaint initiation and complaints
handling functions.
Request for information
The Productivity Commission requests comment on the circumstances under
which the Human Rights and Equal Opportunity Commission should be able
to initiate complaints; and whether it should be entitled to claim damages
or costs from respondents.
Response: Suggest this issue should be considered in terms of initiating proceedings in Federal Court or FMS rather than making complaints as this avoids issue of HREOC complaining to HREOC
Draft Recommendation 11.5
The Attorney-General's Department should investigate the implications
of this inquiry's recommendations about Disability Discrimination Act
1992 complaints for other Commonwealth anti-discrimination Acts.
Response: Agree
Chapter 12 Regulation
Draft Finding 12.1
It appears that the draft education standard might have the effect of
altering the scope of the Disability Discrimination Act 1992 provisions
concerning discrimination in education.
Draft Recommendation 12.1
The scope of the Disability Discrimination Act 1992 should only be altered
via amendment of the Act, not via disability standards.
Response: Disagree, but note proposed amendment of DDA accompanying education standard.
Draft Finding 12.2
A rigorous regulation impact statement process is sufficient to ensure
that disability standards reflect the characteristics of good regulation,
including flexibility.
Response: Agree
Draft Finding 12.3
Disability standards offer the potential to meet the needs of a wider
range of people with disabilities in a shorter timeframe than individual
complaints. It is appropriate that compliance with disability standards
should provide protection from complaints.
Response: Agree
Draft Finding 12.4
There is some uncertainty about the relationship between State and Territory
anti-discrimination legislation and disability standards.
DRAFT RECOMMENDATION 12.2
The Disability Discrimination Act 1992 (s.13) should be amended to make
it clear that disability standards displace the general provisions of
State and Territory anti-discrimination legislation. Any jurisdiction
wanting to introduce a higher level of compliance in an area should request
that allowance be made for this through a jurisdiction-specific component
in the disability standards.
Response: Agree with clarification of status of standards. Query whether jurisdiction specific components in federal standards are possible.
DRAFT RECOMMENDATION 12.3
The Disability Discrimination Act 1992 (s.31) should be amended to allow
for disability standards to be introduced in any area in which it is unlawful
to discriminate on the ground of disability. The standard making power
should extend to the clarification of the operation of statutory exemptions.
Response: Agree
DRAFT RECOMMENDATION 12.4
Where possible, monitoring and enforcement of disability standards should
be incorporated into existing regulatory processes. The Human Rights and
Equal Opportunity Commission's role should be to report to the Attorney
General on the operation and adequacy of those processes.
Response: Agree
DRAFT FINDING 12.5
The disability community has sufficient opportunity to consult and comment
during the development of disability standards. The Disability Discrimination
Act Standards Project is a productive way of engaging people with disabilities
in this process but it is not their only means for providing input.
Response: Agree
DRAFT FINDING 12.6
The development of disability standards has been very slow and only one
set of standards-the Disability Standards for Accessible Public Transport
2003-has been developed to date. However, imposing deadlines could constrain
the consultation process.
Response: Agree.
REQUEST FOR INFORMATION
The Productivity Commission is considering the potential for a co-regulatory
approach under the Disability Discrimination Act 1992. The Commission
is seeking views on how a co-regulatory approach might be implemented,
including:
o the status that should be afforded an industry-developed code of conduct
o appropriate deadlines for industry to develop a code of conduct in an
area before a disability standard is imposed.
Response: Query whether specific reference to deadlines appropriate at this point
DRAFT RECOMMENDATION 12.5
The Human Rights and Equal Opportunity Commission should replace the Frequently
Asked Questions for employment with guidelines in order to provide more
formal recognition under the Disability Discrimination Act 1992.
Response: Agree if not required to conduct Regulation Impact Statement
DRAFT FINDING 12.7
Voluntary action plans are an appropriate mechanism for reducing barriers
to people with disabilities. However, only a small number of businesses
have registered plans. More government departments and agencies have registered
them, but coverage is still far from complete.
DRAFT FINDING 12.8
The Disability Discrimination Act 1992 (s.59) does not provide for registration
of voluntary action plans by employers.
DRAFT RECOMMENDATION 12.6
The Disability Discrimination Act 1992 (s.59) should be amended to clarify
that voluntary action plans can be developed and registered by employers.
Response: Agree
DRAFT FINDING 12.9
Some State laws are currently exempted from the Disability Discrimination
Act 1992 by prescription under section 47, while similar laws in other
States and Territories are not. There is no consistency in the prescription
of laws under section 47.
Response: Agree
DRAFT RECOMMENDATION 12.7
The laws currently prescribed under section 47 of the Disability Discrimination
Act 1992 should be delisted unless relevant the States request their retention.
Response: It may be preferable to recommend that Attorneys-General review needs for prescription of laws and that a 5 year lapse for prescription unless renewed be inserted.
Chapter 13 Broad options for reform
DRAFT FINDING 13.1
There are advantages in retaining both the Disability Discrimination Act
1992 and State and Territory anti-discrimination legislation. However,
this places an obligation on all jurisdictions to work cooperatively to
meet the needs of people with disabilities and minimise confusion about
the two systems.
Response: Agree
DRAFT FINDING 13.2
The advantages of a stand-alone Disability Discrimination Act 1992 outweigh
the advantages of a federal omnibus anti-discrimination Act.
Response : Agree
REQUEST FOR INFORMATION
The Productivity Commission seeks views on how the costs of adjustments
should be shared between governments, organisations and consumers. The
Commission would welcome comment on the adequacy of existing government
funding schemes for such adjustments, and the advantages and disadvantages
of extending particular arrangements (such as portable grants).
Response: Await public input.
REQUEST FOR INFORMATION
The Productivity Commission seeks information on the potential impact
on businesses and people with disabilities of introducing a limited positive
duty on employers to take 'reasonable steps' to identify and work towards
removing barriers to employment of people with disabilities, including:
o the nature of the duty
o how it should be implemented and enforced
o the costs and benefits for business, including small business
o the costs and benefits for people with disabilities
o the role of government in sharing costs and maximising benefits.
Response: Await public input, support in principle.
Chapter 14 Other issues
DRAFT FINDING 14.1: Inadequate funding of Disability Discrimination Legal Services could undermine the effectiveness of the Disability Discrimination Act 1992.
Response: Support provision of adequate funds for effective legal advocacy.
DRAFT FINDING 14.2: Some inquiry participants expressed concern that current funding arrangements restrict education choice for school students with disabilities to a greater extent than students without disabilities. This could contribute to discrimination by increasing the likelihood that some schools would be able to claim unjustifiable hardship under the Disability Discrimination Act 1992.
Response: Agree with desirability of ensuring that government funding approaches address needs and do not restrict choices available to students with disabilities.
DRAFT FINDING 14.3: It is the role of governments, not the Disability Discrimination Act 1992, to determine the level of funding and eligibility criteria for disability services. It is, however, appropriate for the Act to apply to the administration of disability services.
Response: Agree
DRAFT FINDING 14.4: There appears to be merit in investigating further an Australian electronic book repository for educational (and other) publications.
Response: Agree
