Frequently asked questions: Compliance with other laws
Contents
- Are actions in compliance with other laws exempt under the DDA?
- Can complaints be made about the terms of another law?
- What does direct compliance mean?
- Have any laws been prescribed?
Are actions in compliance with other laws exempt under the DDA?
Section 47 of the DDA provides that actions done in "direct compliance" with laws prescribed for the purpose are not unlawful under the DDA.
When the DDA first came into force there was a more general exemption for actions in direct compliance with any other law, not just prescribed laws; but this general exemption expired on 1 March 1996.
Note however that in several cases the Commission has held an action required by another law was not unlawful under the DDA, even though the law concerned was not a prescribed law. This has been on the basis that the person concerned had no discretion to act any differently, so that there was no voluntary act of discrimination to complain about, the complaint being in substance a complaint about the terms of the law.
Can complaints be made about the terms of another law?
The DDA includes provisions making discrimination unlawful in provision of government services, and in administration of Commonwealth laws and programs.
It does not include any provision making it unlawful to make laws of any sort. The Federal Parliament lacks constitutional power to make it unlawful for a State Parliament to legislate in any way, and Federal Parliament also lacks power to bind itself in this way for the future.
The only way in which complaints under the DDA can be used to challenge provisions of other laws, is if a provision of the DDA is inconsistent with those laws.
This would apply to
- any inconsistent provisions of a State law (in which case it might be argued that the DDA overrides the State law under section 109 of the Constitution, just as the Sex Discrimination Act was found to override Victorian legislative restrictions on IVF treatment based on marital status); or
- inconsistent provisions of an earlier Federal law (since where two Federal laws are inconsistent, the later in time prevails).
The test of what constitutes "direct compliance" with a prescribed law is relatively strict, as indicated by the High Court in Waters v. Public Transport Corporation regarding similar terms in the Victorian Equal Opportunity Act. This case appears to have the effect that "direct compliance" does not extend to discriminatory acts which are simply permitted, rather than required, by another law.
Have any laws been prescribed?
From 24 March 1999, regulations are in force prescribing a number of laws for the purposes of section 47 of the DDA:
- NSW Mental Health Act 1990
- NSW Mental Health Regulations1995
- NSW Motor Traffic Regulations 1925 regulations 10(1)(c) and 11
- South Australian Firearms Act 1977 sections 20 and 20A
- South Australian Motor Vehicles Act 1959 sections 88 and 148
- South Australian Education Act 1972 sections 75(3) and 75A
- South Australian Industrial Employees Relations (General) Regulations 1994, regulation 11
- South Australian Workers Rehabilitation and Compensation Act 1986 section 30A and schedule 3.
A motion to disallow these Regulations in the Senate on 24 May was not passed.
See the speech by Senator Vanstone representing the Attorney-General setting out the Government s view of the effect of these regulations. Senator Vanstone s speech included these comments:
I will now turn to some concerns about specific laws being prescribed, and I deal first with the New South Wales Mental Health Act. The prescription of the New South Wales Mental Health Act 1990 and Mental Health Regulations 1995 has generated some concern within the disability community. The concern is that the effect of prescribing the Mental Health Act and its regulations will permit any actions no matter how discriminatory or offensive to be exempted from the operation of the DDA.
However, I stress the prescription will not have this effect. The exemption will apply only in relation to complaints of discrimination that would otherwise constitute unlawful discrimination under the act, and only in relation to acts that were done in direct compliance with a provision of the Mental Health Act or Mental Health Regulations.
Before I further discuss the prescription of the Mental Health Act and its regulations, it is important that you be aware that the prescription of state mental health legislation was specifically envisaged when this parliament enacted section 47 of the act. The explanatory memorandum to the Disability Discrimination Bill, as it then was, states in relation to clause 47:
. . . it is not intended that this bill would override the provisions of State legislation in certain areas, for example mental health.
In approving New South Wales's request for the prescription of the Mental Health Act, the Attorney-General was particularly mindful of the fact that the area of mental health is clearly a state responsibility. As such, it is legitimate that a state government be free to determine the often competing interests of mentally ill individuals and the wider community.
There has been no suggestion, of which I am aware, that the New South Wales Mental Health Act is so discriminatory that it ought not be prescribed. I remind honourable senators that the Mental Health Act has considerable checks and balances contained within it. It contains an extensive scheme allowing for review of decisions by courts and, in some cases, by the Mental Health Review Tribunal.
The decision to prescribe the whole of the act and its regulations flows from the complexity of the act itself. Due to the interrelationship of provisions in terms of the mental health regime, it was not a simple matter to prescribe certain sections of the act and its regulations and not others. Accordingly, it was decided to prescribe the whole act and its regulations. However, it must be remembered that the effect of section 47(2) is that it protects actions only where they are done `in direct compliance with a prescribed law'. Where decisions are taken that allow for a discretion in the decision maker, then the impact of prescription will be reduced and may well protect only those who are obliged to comply with the original decision but would not protect the original decision maker.
There has also been some concern expressed about the prescription of sections 75 and 75A of the South Australian Education Act 1972. These provisions allow the South Australian Director-General of Education to direct that a child who has a disability or learning difficulties be enrolled at a special school. The Director-General must take reasonable steps to consult with the parents of the child, and the decision of the Director-General may be appealed to the South Australian Local Court. The provisions state that a school must enrol a child in accordance with any direction made by the Director-General.
The proper operation of the South Australian education system is in the end one for the South Australian government. The prescription of these sections may well not fully protect a decision of the Director-General as that decision is discretionary. However, it will protect schools which operate in direct compliance with the Director-General's direction.
One concern that has been voiced on a number of occasions by members of the community is a fear that these regulations will leave people with disabilities without any avenues for appealing decisions by which they are aggrieved. With great respect, that concern is misconceived. As previously discussed, both the New South Wales Mental Health Act and the South Australian Education Act provide for rights of review of decisions made under the acts. Likewise, the New South Wales Traffic Act, the South Australian Motor Vehicle Act and the Firearms Act all make provision for a right of review of a decision made under the relevant act. I must stress that these rights of review are in no way affected by the prescription of legislation under the Disability Discrimination Act.
Speeches from other Senators on this issue are also available in the Senate Hansard record for 24 May 1999: Senators Margetts; Chris Evans; Quirke; Gibbs; Bolkus; Bartlett; West; and Senator Margetts in reply.