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Changes to the DDA: Disability Discrimination and Other Human Rights Legislation Amendment Act 2008

 

Definition of disability

The definition of disability in s4 has been changed to include a genetic predisposition to a disability. The amendments to the section are in bold below:

disability , in relation to a person, means:

(a) total or partial loss of the person's bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person's body; or

(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future (including because of a genetic predisposition to that disability) ; or

(k) is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

The additional words at the end of the definition of 'disability' reflect the current status of law as pronounced by the High Court in Purvis v The State of New South Wales (Department of Education and Training) and implements Productivity Commission Recommendation 11.1.

The confirmation that disability includes genetic predisposition Implements Productivity Commission Recommendation 11.1. Also Australian Law Reform Commission and the National Health and Medical Research Council in their joint 2003 report, Essentially Yours: The Protection of Human Genetic Information in Australia (Essentially Yours) .

Recognition of Disability Convention for purposes of application of DDA

The application of the Act set out at section 12 has been amended to:

(1) limited application provisions means the provisions of Divisions 1, 2, 2A and 3 of Part 2 other than sections 20, 29 and 30.

(8)(b) The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:

(a) give effect to the Convention; or

(b) give effect to the Covenant on Civil and Political Rights; or

(ba) give effect to the Disabilities Convention; or

(c) give effect to the International Covenant on Economic, Social and Cultural Rights; or

(d) relate to matters external to Australia ; or

(e) relate to matters of international concern

The Bill will also insert into s4(1) the definition of ‘ Disabilities Convention' means the Convention on the Rights of Persons with Disabilities, done at New York on 30 March 2007, as in force for Australia.

Definition of discrimination

The Bill overhauls the definitions of discrimination and disability discrimination. Currently ‘disability discrimination' is defined as being ‘the meaning given by ss5-9(inclusive). This is to be replaced with a definition of ‘discriminate' that provides that the term ‘has the meaning given by s 5 and 6. A note has been added which states: ‘Section 7 (associates) and section 8 (carers, assistants, assistance animals and disability aids) extend the concept of discrimination'.

Definition of direct discrimination

New sections 5-9 primarily implement recommendations 8.1-8.4 and 11.3 of the Productivity Commission Recommendations. The explanatory memorandum states that they also address discrepancies raised in the case of The State of Queensland ( Queensland Health) v Che Forest [ 2008] FCAFC 96. The proposed definition of direct discrimination is as below:

5 Direct disability discrimination

(1) For the purposes of this Act, a person ( discriminator ) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (emphasis added)

…

(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

Definition of indirect discrimination

The explanatory memorandum states that the new s6 is different in the following ways:

The new definition is set out in full below:

6 Indirect Disability Discrimination

(1) 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:

(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. (emphasis added)

…

(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

Reasonable adjustments

The obligation to make reasonable adjustments is embedded into the definitions of both s 5 direct and s 6 indirect discrimination.

5(2) For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:

(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

6(2) For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

The provision is intended to remove doubt which has been claimed to be cast on the ‘implied duty' by members of the High Court in Purvis v NSW and the Human Rights and Equal Opportunity Commission . It makes explicit that there is a duty to make reasonable adjustments to avoid indirect discrimination and direct discrimination.

It is also consistent with the requirement in the Disabilities Convention to make reasonable accommodation. The explanatory memorandum states that the new reference to ‘adjustments' covers ‘accommodation or services'.

Reasonable adjustments are defined in s 4 as:

reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.

The explanatory memorandum states that the question of whether a person has made ‘all reasonable adjustments' will take into account the circumstances of the parties involved. The question of what reasonable adjustments would diminish the disadvantageous effect requires a consideration to be made of what adjustments are possible generally.

Discrimination in relation to associates

The Bill inserts a new stand alone provision in relation to discrimination against associates. The definition is set out in full below:

7 Discrimination in relation to associates

(1) This Act applies in relation to a person who has an associate with a

disability in the same way as it applies in relation to a person with the disability.

Example: It is unlawful, under section 15, for an employer to discriminate against an employee on the ground of a disability of any of the employee's associates.

(2) For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person who has an associate with a disability as if:

(a) each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has an associate with the disability; and

(b) each other reference to a disability were a reference to the disability of the associate.

(3) This section does not apply to section 53 or 54 (combat duties and peacekeeping services) or subsection 54A(2) or (3) (assistance animals).

Note: The combined effect of sections 7 and 8 is that this Act applies in relation to a person who has an associate who has a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to a person with a disability.

New section 7 clarifies that discrimination against a person because of the disability of any of his or her associates also amounts to discrimination under the DDA. Note that the reference to s 54A (2) or (3) in s 7(3) prevents s 7 applying to an exemption in relation to assistance animals that already extends to another person.

As a result of new section 7, the Bill removes the reference to ‘or a disability of a person's associates' from the operative sections of the DDA.

New provisions dealing with assistance animals

The Bill changes the DDA to clarify the law after the case of The State of Queensland ( Queensland Health) v Che Forest . Section 8 contains a new provision dealing with assistance animals as well as carers, assistants and disability aids.

8 Discrimination in relation to carers, assistants, assistance animals and disability aids

(1) This Act applies in relation to having a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to having a disability.

Example: For the purposes of section 5 (direct discrimination), circumstances are not materially different because of the fact that a person with a disability requires adjustments for the person's carer, assistant, assistance animal or disability aid (see subsection 5(3)).

(2) For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person with a disability who has a carer, assistant, assistance animal or disability aid as if:

(a) each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has the carer, assistant, animal or aid; and

(b) each other reference to a disability were a reference to the carer, assistant, animal or aid.

(3) This section does not apply to section 48 (infectious diseases) or section 54A (exemptions in relation to assistance animals).

Note: The combined effect of sections 7 and 8 is that this Act applies in relation to a person who has an associate who has a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to a person with a disability.

The following new definitions have been inserted into s4(1) of the DDA

•  assistance animal has the meaning given by subsection 9(2).

•  carer or assistant has the meaning given by subsection 9(1).

•  disability aid has the meaning given by subsection 9(3).

The Bill repeals from s4(1), the definition of ‘ auxiliary aid'. The term is no longer used because the definition of ‘auxiliary aid' is incorporated into the definition of ‘disability aid'.

9 Carer, assistant, assistance animal and disability aid definitions

Meanings of carer or assistant , assistance animal and disability aid

(1) For the purposes of this Act, a carer or assistant , in relation to a person with a disability, is one of the following who provides assistance or services to the person because of the disability:

(a) a carer;

(b) an assistant;

(c) an interpreter;

(d) a reader.

(2) For the purposes of this Act, an assistance animal is a dog or other animal:

(a) accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or

(b) accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or

(c) trained:

(i) to assist a person with a disability to alleviate the effect of the disability; and

(ii) to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

Note: For exemptions from Part 2 for discrimination in relation to assistance animals, see section 54A.

(3) For the purposes of this Act, a disability aid, in relation to a person with a disability, is equipment (including a palliative or therapeutic device) that:

(a) is used by the person; and

(b) provides assistance to alleviate the effect of the disability.

Having a carer, assistant, assistance animal or disability aid

(4) The following table has effect:

Having a carer, assistant, assistance animal or disability aid

Item

For the purposes of this Act, a person with a disability has …

if the person …

1

a carer or assistant

(a) is presently accompanied by the carer or assistant; or

(b) was previously accompanied by the carer or assistant; or

(c) may be accompanied by the carer or assistant in the future; or

(d) is imputed to be accompanied by the carer or assistant.

2

an assistance animal or disability aid

(a) is presently accompanied by, or possesses, the animal or aid; or

(b) was previously accompanied by, or possessed, the animal or aid; or

(c) may be accompanied by, or possess, the animal or aid in the future; or

(d) is imputed to be accompanied by, or to possess, the animal or aid.

 

The provisions relating to assistance animals are qualified by new s54A which provides:

54A Assistance animals

(1) This section applies in relation to a person with a disability who has an assistance animal.

Note: For when a person with a disability has an assistance animal, see subsections 9(2) and (4).

(2) This Part does not render it unlawful for a person to request or to require that the assistance animal remain under the control of:

(a) the person with the disability; or

(b) another person on behalf of the person with the disability.

(3) For the purposes of subsection (2), an assistance animal may be under the control of a person even if it is not under the person's direct physical control.

(4) This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground of the disability, if:

(a) the discriminator reasonably suspects that the assistance animal has an infectious disease; and

(b) the discrimination is reasonably necessary to protect public health or the health of other animals.

(5) This Part does not render it unlawful for a person to request the person with the disability to produce evidence that:

(a) the animal is an assistance animal; or

(b) the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

(6) This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground that the person with the disability has the assistance animal, if:

(a) the discriminator requests or requires the person with the disability to produce evidence referred to in subsection (5); and

(b) the person with the disability neither:

(i) produces evidence that the animal is an assistance animal; nor

(ii) produces evidence that the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

(7) This Part does not affect the liability of a person for damage to property caused by an assistance animal.

To aid the reader, the following note will be added to s 48 infectious diseases directing discrimination against assistance animals that have an infectious disease to be dealt with under s54A.

Note: For discrimination in relation to an assistance animal that has an infectious disease, see subsection 54A(4).

Employment agencies

The Bill includes a provision designed to clarify the operation of the DDA for employment agencies. Section 21 will now read:

21 Employment Agencies

(1) It is unlawful an employment agency to discriminate against a person on the ground of the person's disability:

(a) by refusing to provide the person with any of its services; or

(b) in the terms or conditions on which it offers to provide the person with any of its services; or

(c) in the manner in which it provides the person with any of its services

(2) This part does not require an employment agency to ensure that an employer complies with this Act.

(3) Subsection (2) does not affect the operation of section 122 (which applies if an employment agency causes, instructs, induces, aids or permits an employer to do an unlawful act).

New inherent requirements exception

New s 21A substantially implements Productivity Commission Recommendation 8.4 to extend the defence of ‘inherent requirements' so that it is available to employers in a broader range of employment situations.

Rather than the defence only applying with respect to discrimination in the offer of employment or dismissal, it will now apply to all areas of discrimination in employment except in:

•  access to opportunities for promotion, transfer or training

•  denying a person with disability access to any other benefits associated with employment

•  subjecting the person with disability to any other detriment.

21A Exception—inherent requirements

Inherent requirements

(1) This Division does not render it unlawful for a person (the discriminator ) to discriminate against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:

(a) the discrimination relates to particular work (including promotion or transfer to particular work); and

(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.

(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:

(a) the aggrieved person's past training, qualifications and experience relevant to the particular work;

(b) if the aggrieved person already works for the discriminator—the aggrieved person's performance in working for the discriminator;

(c) any other factor that it is reasonable to take into account.

(3) For the purposes of this section, the aggrieved person works for another person if:

(a) the other person employs the aggrieved person; or

(b) the other person engages the aggrieved person as a commission agent; or

(c) the aggrieved person works for the other person as a contract worker; or

(d) the other person and the aggrieved person are members of a partnership; or

(e) both of the following apply:

(i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;

(ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.

Opportunities for promotion, transfer and training and registered organisations

(4) This section does not apply in relation to:

(a) discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or

(b) discrimination referred to in section 20 (registered organisations under the Workplace Relations Act 1996 ).

The following provisions containing the ‘inherent requirements' defence are repealed as they are no longer necessary due to the general inherent requirements defence in new s 21A.

  • 15(4) discrimination in employment.
  • 16(3) discrimination against commission agents.
  • 17(2) discrimination against contract workers.
  • 18(4) discrimination in partnerships.
  • 19(2) discrimination by qualifying bodies. ]

New unjustifiable hardship defences in s21B and s29A

New section 21B provides a defence of unjustifiable hardship applicable to unlawful discrimination wherever dealt with in Division 1 of Part 2 (which prohibits discrimination in work).

21B Exception—unjustifiable hardship

This Division does not render it unlawful for a person (the discriminator ) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator .

New section 29A similarly provides a general defence of unjustifiable hardship for Division 2 of Part 2 of the DDA (which prohibits discrimination in other areas), with the exception of s30 (requests for information).

29A Unjustifiable hardship

This Division (other than section 30) does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.

This implements Productivity Commission Recommendation 8.2 by making the defence available in all areas of the DDA that make discrimination on the ground of disability unlawful.

As a consequence of the new general unjustifiable defence, the following provisions that had previously provided specific unjustifiable defences will be repealed:

•  22(4) education.

•  24(2) goods, services and facilities.

•  23(2) access to premises.

•  25(3)(c) accommodation.

•  27(3) clubs and incorporated associations.

The Bill will also change the definition of unjustifiable hardship. ‘Unjustifiable hardship' is now defined in s 4(1) as having a meaning affected by section 11.

Section 11 will provide:

11 Unjustifiable Hardship

(1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any persons concerned;

(b) the effect of the disability of any person concerned;

(c) the financial circumstances and the estimated amount of expenditure required to be made by the first person;

(d) the availability of financial and other assistance to the first person

(e) any relevant action plans given to the Commission under section 64.

Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

(2) For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

The Bill implements Productivity Commission Recommendation 8.3 by clarifying that the criteria for determining unjustifiable hardship includes consideration of the costs and benefits to all persons, expanding the criteria to include availability of financial and other assistance and clarifying that any respondent to a complaint can have their action plan considered. This codifies case law interpreting ‘any persons concerned' for example in Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council.

New requests for information section

The Bill replaces the existing s 30 with the following -

30 Requests for information

(1) This section applies in relation to a person (the first person ) if, under Division 1 or this Division, it would be unlawful for the first person, in doing a particular act, to discriminate against another person on the ground of a disability of the other person.

(2) It is unlawful for the first person to request or require the other person to provide information (whether by completing a form or otherwise) if:

(a) the first person requests or requires the information in connection with, or for the purposes of, doing the act referred to in subsection (1); and

(b) either or both of the following applies:

(i) persons who do not have the disability would not be requested or required to provide the information in circumstances that are not materially different;

(ii) the information relates to the disability.

(3) Subsection (2) does not apply if:

(a) evidence is produced to the effect that none of the purposes for which the first person requested or required the information was the purpose of unlawfully discriminating against the other person on the ground of the disability; and

(b) the evidence is not rebutted.

Example: An employer may not require a prospective employee to provide genetic information if the employer intends to use that information to unlawfully discriminate against the employee on the ground of a disability of the employee.

However, the employer may require such information in order to determine if the prospective employee would be able to carry out the inherent requirements of the employment or to determine what reasonable adjustments to make for the employee.

(4) This section has effect subject to subsection 54A(5) (evidence that an animal is an assistance animal).

Significantly, new section 30 additionally covers situations where a person requests the information about disability from all persons and not only those with a disability. The Explanatory Memorandum of the Bill states that new section 30 implements Recommendation 31-3 of the Australian Law Reform Commission report, Essentially Yours , that the DDA be amended to prohibit an employer from requesting or requiring genetic information, except for reasonably required purposes, such as ensuring a person is able to perform the inherent requirements of the job. The new section will apply to all requests for information to all areas of discrimination covered by the DDA.

Section 30(3) operates as a defence for which the respondent has evidential burden only – in other words, a respondent's conduct is not made unlawful if evidence is produced to the effect that it did not request the information for the purpose of discriminating and the evidence is not rebutted.

Division 2A - Disability standards

The definition of ‘disability standards' in s4(1) is amended to refer to s31(1) which in turn is amended as follows:

Section 31 Disability standards

(1) The Minister may, by legislative instrument, formulate standards, to be known as disability standards , in relation to any area in which it is unlawful under this Part for a person to discriminate against another person on the ground of a disability of the other person:

(2) Without limiting subsection (1), a disability standard may:

(a) deal with the following:

(i) reasonable adjustments;

(ii) strategies and programs to prevent harassment or victimisation of persons with a disability;

(iii) unjustifiable hardship;

(iv) exemptions from the disability standard, including the power (if any) of the Commission to grant such exemptions; or

(b) provide that the disability standard, in whole or in part, is or is not intended to affect the operation of a law of a State or Territory.

(3) Before making a disability standard, the Minister must take into consideration any comments made to the Minister by a Minister of a State or Territory who is responsible for matters relating to disability discrimination.

(4) A legislative instrument made under this section does not take effect before the end of the period in which it could be disallowed in either House of the Parliament.

The new section 31 provides for the Minister to formulate disability standards on any matter covered by the DDA, implementing Productivity Commission Recommendation 14.3. It also clarifies that the Disability standards should prevail over State and Territory legislation that address the same matter. The standards themselves may provide how they are to operate in relation to State and Territory laws. As before, consultation with responsible State and Territory Ministers is required. The section also clarifies that disability standards are like any other legislative instruments and will be subject to procedures stipulated in the Legislative instruments Act. Section 31 is reinforced by amended s13, see below: .

13 Operation of State and Territory laws

(1) A reference in this section to this Act is a reference to this Act as it has effect because of a provision of section 12.

(2) A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with discrimination on the grounds of disability.

(3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

( 3A) Subsection 3 does not apply in relation to Division 2A of Part 2 (Disability standards).

(4) If:

(a) a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act (including a matter dealt with by a disability standard) ; and

(b) a person has made a complaint or initiated a proceeding under that law in respect of an act or omission in respect of which the person would, apart from this subsection, have been entitled to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act;

the person is not entitled to make a complaint or institute a proceeding under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act.

(5) If:

(a) a law of a State or Territory deals with a matter dealt with by this Act (including a matter dealt with by a disability standard) ; and

(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act;

the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.

The Bill amends s12 Application of the Act provision, so that the Disability Standards have the same application as the rest of the DDA. All of the DDA is now expressed as specifically relying on the Disabilities Convention for its validity.

Special Measures

The special measures provision has been amended to clarify its operation. The amendments are set out in bold below:

45 Special measures

(1) This Part does not render it unlawful to do an act that is reasonably intended to:

(a) ensure that persons who have a disability have equal opportunities with other persons in circumstances in relation to which a provision is made by this Act; or

(b) afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to:

(i) employment, education, accommodation, clubs or sport; or

(ii) the provision of goods, services, facilities or land; or

(iii) the making available of facilities; or

(iv) the administration of Commonwealth laws and programs; or

(v) their capacity to live independently; or

(c) afford persons who have a disability or a particular disability, grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to:

(i) employment, education, accommodation, clubs or sport; or

(ii) the provision of goods, services, facilities or land; or

(iii) the making available of facilities; or

(v) the administration of Commonwealth laws and programs; or

(v) their capacity to live independently.

2) However, subsection (1) does not apply:

(a) in relation to discrimination in implementing a measure referred to in that subsection if the discrimination is not necessary for implementing the measure; or

(b) in relation to the rates of salary or wages paid to persons with disabilities.

Note: For discrimination in relation to the rates of salary or wages paid to persons with disabilities, see paragraphs 47(1)(c) and (d).

The new subsection (2) implements Recommendation 12.4 of the Productivity Commission Report by limiting the discrimination in the special measures exemption to discrimination necessary to implement the measure for the benefit of the person with the disability. The Explanatory Memorandum for the Bill notes that subsection 2 is seeking to clarify that all issues in relation to salary and wages should be dealt with under s 47 and not as special measures.

Migration

The exception relating to migration has been narrowed as follows:  

52 Migration

Divisions 1, 2 and 2A do not:

(a) affect discriminatory provisions in

(i) the Migration Act 1958 ; or

(ii) a legislative instrument made under that Act; or

(b) render unlawful anything that is permitted or required to be done by that Act or instrument.

This amendment is intended to implement Productivity Commission Recommendation 12.4 to exclude administrative processes from the Migration Act exemption. The explanatory memorandum of the Bill gives as an example that a person could allege unlawful discrimination under the DDA if, during the administration of a process provided for in the Migration Act, information was not provided in accessible formats.

Action Plans

The provisions relating to action plans have been simplified and broadened. The previous definition of ‘service provider' has been replaced with the concept of ‘action planner' as follows:

•  Scope

This Part applies in relation to a person (the action planner ) who, under Part 2, is prohibited from discriminating against another person on the ground of a disability of the other person.

The change in definition is intended to capture a wider class of persons who may make action plans than previously defined in s 59 of the DDA to avoid technical gaps in the coverage of the DDA.

References to service provider are replaced with action planner in sections:

•  60 Action plans.

•  61 provisions of action plans.

•  62 Action plans may have other provisions.

Sections 63, 64 and 65 are repealed and replaced to make clear that the Commission must make action plans available to the public (e.g. by providing a copy on the Internet rather than selling them for a prescribed fee.

Action plans are saved to preserve existing action plans and provide for them to operate pursuant to the amended Part following its commencement.

Accommodation providers

Section 25(3) has been amended (marked below in bold) to increase its clarity.

25 Accommodation

(3) This section does not apply to or in respect of:

(a) the provision of accommodation in premises if:

(i) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside on those premises; and

(ii) the accommodation provided in those premises is for no more than 3 persons other than a person referred to in subparagraph (a)(i) or near relatives of such a person; or

(b) the provision of accommodation if:

(i) accommodation is provided by a charitable or other voluntary body solely for persons who have a particular disability; and

(ii) the person discriminated against does not have that particular disability.

Technical amendments

Section 47(3) which exempted acts done in direct compliance with another law is removed due to the expiry of the 3 year sunset clause contained within the provision making the provision redundant.

Section 50 which exempted discrimination in the provisions of payphones and public phones is removed due to the expiry of the 3 year sunset clause contained within the provision making the provision redundant.

Repealed redundant s4(1) definitions

The following definitions have been removed from the DDA because they are no longer used in the Act:

The definition ‘ this Act includes the regulations' has been repealed. If a reference to the Regulations is proposed, it will be stated specifically in the Act.