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Frequently asked questions: scope of the DDA

Does the DDA apply to State and territory governments?

Yes.

The DDA states that it binds the Crown in right of each of the States (and Norfolk Island) as well as in right of the Commonwealth: see DDA section 14(1).

Thus the DDA applies to actions of State government instrumentalities equally with actions of Commonwealth instrumentalities or private sector bodies in the areas which the DDA covers. This includes provision of services (under section 24), which includes services of a kind provided by government (see the definition of services in section 4).

Note, however, that nothing in the DDA makes it unlawful for a State or Territory to legislate in a particular way, even if the effect of that legislation may be seen as discriminatory (for example by restricting entitlements to services or benefits such as workers compensation benefits). It may be possible in some cases to argue before the courts that discriminatory legislation is inconsistent with the DDA and thus inoperative because of section 109 of the Constitution, but it is not possible to make a valid complaint to the Commission under the DDA about allegedly discriminatory legislation.

What is the constitutional basis for the DDA?

Section 12 of the DDA provides a list of specific circumstances where the major provisions of the DDA which make conduct unlawful apply.

These include:

These applications depend on heads of Commonwealth legislative power specified under section 51 of the Constitution (and section 61 so far as application to the Commonwealth itself is concerned). They apply to some State activities, as well as some activities in the private sector.

In particular, where State activities are conducted through public corporations, the decision of the High Court in the Tasmanian Dams case indicates that these may be "trading corporations" or "financial corporations" covered by Commonwealth legislative power equally with corporations which are not State owned.

Clearly, however, the application provisions referred to so far do not give comprehensive coverage. This indicates the importance of paragraph (8) of section 12, which extends the effect of the relevant provisions of the DDA to apply in relation to: discrimination against a person with a disability to the extent that the provisions:

This provision relies on the "external affairs" power as contained in section 51(xxix) of the Constitution and as interpreted by the High Court.

Decisions of the Court, including in the Tasmanian Dams case of 1983 and the Tasmanian Forests case of 1988 indicate that this power allows the Commonwealth to legislate to fulfil treaty obligations, or on matters physically external to Australia.

There is also power to legislate on matters of "international concern". Although this aspect of the power remains less certain in the extent of its application, there are indications that the High Court will regard the judgment of whether a matter is of sufficient international concern as being largely one for the executive government.

There is no comprehensive international convention on rights of people with disabilities (compared to the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women, on which the Racial Discrimination Act and Sex Discrimination Act are based). However, there are a number of treaties and other expressions of international concern which provide a constitutional basis for broad ranging Federal legislation on disability discrimination in Australia.

The Discrimination (Employment and Occupation) Convention, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are each treaties to which Australia is a party and which impose obligations binding in international law. There is no doubt that legislative measures to implement obligations under these instruments are within Commonwealth legislative power.

Sections 15 to 21 of the DDA dealing with employment and related matters are supported by the external affairs power in conjunction with the Discrimination (Employment and Occupation) Convention as it applies to Australia, including the declaration by Australia of impairment and disability as additional grounds of discrimination covered from 1 January 1990. Sections 35 and 36 on harassment in employment are supported on the same basis.

Section 22, on education, and sections 37 and 38 on harassment in education, are supported by reference to the International Covenant on Economic, Social and Cultural Rights, article 13 of which recognises the right to education, and Article 2.2 of which requires that the rights recognised be guaranteed without discrimination "of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status".

Section 23 on access to premises is supported by the expressions of international concern in the U.N. Standard Rules for the Equalisation of Opportunities for People with Disabilities

Section 24 regarding goods, services and facilities is supported by Article 11 of the International Covenant on Economic, Social and Cultural Rights, which recognises the right of everyone to an adequate standard of living, in conjunction with the non-discrimination requirement of Article 2.2 of the same Covenant. This non-specific treaty obligation is reinforced by the specific, although non-binding, expressions of international concern in the Declaration on the Rights of Disabled Persons, in particular Principle 10 requiring protection against discrimination, and in the Standard Rules for the Equalisation of Opportunities for People with Disabilities.

Section 25 regarding accommodation finds more specific support in Article 11 of the Internation Covenant on Economic, Social and Cultural Rights which includes recognition of the right to adequate housing. Again, this is reinforced by the Declaration on the Rights of Disabled Persons, particularly Principles 9 and 10.

Section 26 regarding land is supported, at least in part, by Article 26 of the International Covenant on Civil and Political Rights (on the precedent of United States jurisprudence regarding the comparable provision in the US Constitution regarding the equal protection of the laws) - to the extent that any discrimination is contained in legally enforceable instruments or otherwise involves action by government or the legal system. More general application of section 26 is supported by the international concern expressed in the Declaration on the Rights of Disabled Persons.

Section 27, regarding clubs and incorporated associations, and section 28 regarding sport, find support principally in the international concern expressed in the Declaration on the Rights of Disabled Persons, Principle 9 of which recognises the right "to participate in all social, creative or recreational activities" as well as Principle 10 concerning protection from discriminatory treatment generally.

Section 29 of the DDA, regarding discrimination in administration of Commonwealth laws and programs, is supported by the same legislative powers as those used to make those laws and conduct those programs.

Does the DDA apply outside Australia?

The usual rule of statutory interpretation is that Australian laws apply only within Australia. The reasons for this rule are obvious, in terms of the practicality of Australia regulating activity in other countries, and the desire of all nations (including Australia) to have only their own laws governing activities on their own territory.

However, this rule of interpretation does not apply where the law itself indicates that it is to apply extraterritorially. The Disability Discrimination Act includes such a provision. Section 12(8)(d) indicates that the "limited application provisions" apply to matters external to Australia.

This does not mean that the DDA would apply to matters overseas without some substantial Australian connection, but discrimination by Australian corporations overseas could well be within the scope of the DDA. Discrimination in provision of services (such as travel services or education) outside Australia could be covered where the contract or agreement for provision of those services was formed inside Australia.

Does the DDA apply inside prisons?

Yes. A prisoner does not lose all legal rights, since concepts of civil death were abolished many years ago. So for example if educational facilities are made available to prisoners but materials are not in a form accessible to a blind prisoner, complaints under the DDA can still be made about that.