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ISSUES PAPER: DISABILITY STANDARDS UNDER THE DISABILITY DISCRIMINATION ACT

Prepared by the Disability Discrimination Commissioner for the DDA Disability Standards Working Group Human Rights and Equal Opportunity Commission November 1993

This paper is issued for the purpose of promoting awareness and discussion of the disability standards mechanism in general. Specific consultations will be conducted regarding development of standards in particular areas. Submissions on issues raised in this paper may be made, at any time but preferably by 1 February 1994, to: DDA Disability Standards Working Group C/- Human Rights Branch Attorney-Generals Department Robert Garran Offices National Circuit Barton A.C.T. 2600

EXECUTIVE SUMMARY

The Disability Discrimination Act ("the DDA") provides for the Attorney-General to make "disability standards" (subject to approval or amendment by Federal Parliament). It will be unlawful not to comply with a disability standard.

Disability standards under the DDA may be made in the areas of employment, education, accommodation, provision of public transportation services and facilities, and the administration of Commonwealth laws and programs.

Provision was made in the DDA for making of disability standards for two major purposes: to set legislative deadlines for achieving equal access for people with disabilities in the areas covered by the DDA; and to provide more definite and certain benchmarks for accessibility and equality than is provided by the general anti-iscrimination model.

The anti-discrimination provisions of the DDA, which are already in force, contain very broad ranging requirements for equality of access and opportunity for people with disabilities. However, the open ended and flexible nature of this type of provision, while having many advantages, may also limit its effectiveness in achieving equality for people with disabilities in some areas.

Standards may be of assistance in addressing these issues by: setting out more clearly the requirements which are already implicit in the DDA; providing timetables for achieving compliance with these requirements; reducing the use of resources in litigation or complaint processes.

Standards may therefore reduce uncertainty for all parties and provide benefits for governments, business and others with obligations under the DDA as well as for people with disabilities. Standards need to be carefully designed, however, so that they do not inappropriately diminish the rights contained in the existing provisions of anti-discrimination law.

Development of standards will require extensive consultation with people with disabilities, business, and relevant government authorities. The Federal Attorney-General has set up a DDA Disability Standards Working Group to commence consideration of development of standards. The Working Group includes the Disability Discrimination Commissioner, and representatives of the Attorney-General's Department, the Department of Health, Housing, Local Government and Community Services, the Disability Advisory Council of Australia; and Disabled Peoples International (Australia).

The Disability Discrimination Commissioner has prepared this Issues Paper for the Working Group to promote discussion and as an initial basis for consultation within government and with the community. Submissions to the Working Group are invited on issues concerning the development of DDA disability standards, including:

Submissions are requested to the DDA Disability Standards Working Group, preferably by 1 February 1994, c/- the Human Rights Branch of the Federal Attorney-General's Department, Robert Garran Office, Barton A.C.T. 2600.

Introduction

"The Bill also contains provisions to allow for the making of disability standards in the future. Equivalent standards are provided for in both the American and Canadian legislation of this sort" (The Hon. Brian Howe MP, Minister for Health, Housing and Community Services, Second reading speech on the Disability Discrimination Bill, House of Representatives 26 May 1992)

1. The Disability Discrimination Act ("the DDA") provides [1] for the Attorney-General to formulate standards, to be known as "disability standards", in a number of areas specified by the Act. Standards made by the Minister are subject [2] to a process of Parliamentary approval and possible amendment. Once a disability standard is in force, however, the DDA provides that it will be unlawful for a person to contravene a disability standard. Complaints to the Human Rights and Equal Opportunity Commission of contravention of disability standards will be able to be made in the same manner as complaints under the existing provisions of the DDA.

2. The DDA does not specify in any further detail what the nature of such standards should be. As indicated by Ministers in introducing the Disability Discrimination Bill in the Parliament, however, the provision for disability standards was made with North American models in mind: in particular, the model, or models, provided by the Americans with Disabilities Act and associated regulations in the United States. (These models are be discussed later in this paper.) [3]

3. The consultative processes leading to the development and passage of the DDA identified strong support from people with disabilities and from peak representative bodies for disability standards for two major purposes: to set legislative deadlines for achieving equal access for people with disabilities in the areas covered by the DDA; and to provide more definite and certain benchmarks for accessibility than is provided by the general anti-discrimination model.

DDA Disability Standards Working Group

4. The Attorney-General has set up the DDA Disability Standards Working Group to commence consideration of: needs and priorities for standards; other issues affecting the development of standards; and processes for the development of standards. The following are represented on the Working Group the Attorney-General's Department; the Disability Discrimination Cominissioner [4]; the Office of Disability (Department of Health, Housing, Local Government and Community Services; the Disability Advisory Council of Australia; and Disabled Peoples International (Australia).[5]

5. This membership is not intended to exclude, but to facilitate, participation by other relevant agencies within the Commonwealth, other levels of government and the community (including people with a disability and their representatives) consideration of Disability Standards under the DDA.

6. This Issues Paper has been prepared by the Disability Discrimination Commissioner for the Working Group to promote discussion and as an initial basis for consultation within government and with the community. It does not represent final decisions by the members of the Working Group or by the Attorney-General.

Why consider disability standards when we already have anti- discrimination provisions?

7. The provision for making disability standards forms an essential part of the legislative scheme to achieve the objective of the DDA to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas covered. While the existing anti-discrimination provisions are legally capable of applying to many (perhaps all) of the matters which could be dealt with by standards, the inclusion of provision for standards in the DDA reflects a recognition that the pre-existing model of Australian anti-discrimination legislation is not by itself sufficient, or necessarily the most effective and efficient means of addressing all of these matters.

8. The existing provisions of the DDA contain very broad ranging requirements for equality of access and opportunity for people with disabilities. These provisions make direct or indirect discrimination on the basis of disability unlawful in relation to: employment; education, access to premises used by the public; provision of goods, services and facilities; accommodation; buying or selling land, activities of clubs; sport; and the administration of Commonwealth Government laws and programs.

9. However, anti-discrimination legislation covering disability, in broadly similar terms to the general non-discrimination provisions of the DDA, has been in force for over a decade in some Australian jurisdictions. There are strong perceptions (which were expressed by a number of representative, advocacy, advisory and service provision organisations in the disability area during the consultative processes leading to the enactment of the DDA) that this legislation has not been sufficiently effective in eliminating barriers to equal opportunity and participation in society for people with a disability. Limitations of earlier legislation which do not affect the DDA

10. There are some particular features of earlier legislation which have been identified as contributing to this limited effectiveness. The non-discrimination provisions of the DDA were designed to overcome these difficulties. In particular:

Definition of disability:

The DDA adopts a wide definition of disability, intended to avoid as far as possible the difficulties which have arisen under some State legislation regarding whether some disabilities are covered.

Proposed discrimination:

Some earlier legislation has been interpreted to mean that complaints of discrimination may only be made after the discriminatory action has occurred. However, the expense and difficulty involved in reversing an action (particularly regarding construction of premises or installation of equipment) is likely to be much greater after the event than in avoiding the discriminatory feature in advance. Accordingly a complaint which can only be made after the event is more likely to be met by a successful claim of unjustifiable hardship. The DDA makes clear that complaints can be made regarding proposed discrimination as well as discrimination which has actually occurred.

Access to premises:

The DDA explicitly covers discrimination in access to premises used by the public. Some earlier legislation covered access only where inadequate access involved discrimination in employment, education, service provision etc. Access requirements which are only implicitly contained in anti-discrimination legislation are less obvious to potential complainants and respondents, and are subject to greater uncertainty of application and interpretation, and potential for gaps in coverage, than provisions which deal with access explicitly. The DDA is likely to be more widely applied concerning access issues, even without standards, therefore, than legislation which only deals with access implicitly.

Range of factors required to be considered in determining "unjustifiable hardship":

Like other legislation in this area, the DDA allows account to be taken of the possible costs of adjustments to accommodate the needs of a person with a disability, through the concept of "unjustifiable hardship" [6]. However, the DDA makes it clearer than some earlier legislation that costs or detriment should not be considered in isolation from the benefits of making the accommodation. The DDA also refers to benefit or detriment "to all persons concerned". This means that apart from the benefits to the person who is seeking the adjustment to be made, consideration is required of benefits to other people who have similar needs, either because of disability or for other reasons, and other incidental benefits which may arise. An emphasis on considering the consequences for all parties affected, rather than viewing the matter solely as one where an individual with a disability presents an enterprise with a (possibly expensive) immediate problem, is likely to lead to more extensive adjustments being determined to be required, i.e. as not involving unjustifiable hardship.

Complaints by representatives:

The DDA also emphasises the possibility of complaints by representatives and advocates, making clearer that the sole burden of taking action against discrimination need not rest with an individual directly affected.

Separate Act and administration:

The formulation of the DDA as a separate Act, with a specific Commissioner having particular responsibility regarding its administration, rather than disability discrimination being dealt with among other grounds in a general anti-discriminati6n Act, gives the Federal provisions regarding disability discrimination a public and institutional focus which may increase their impact beyond that of the State and Territory legislation even where (as for example in Queensland and the A.C.T.) that legislation contains essentially similar legal provisions.

Coverage of Commonwealth administration:

As the DDA includes coverage of discrimination in the administration of Commonwealth laws and programs, it is in important respects more comprehensive than is possible for State and Territory legislation.

Expanding role for indirect discrimination

11. The (still relatively recent) decision of the High Court in Waters and others v. Public Transport Corporation [(1991) 173 Commonwealth Law Reports 349J (the "Melbourne Trams" case) also gives greater impact to indirect discrimination provisions, which have very large potential for use in affecting many forms of disability discrimination. As this potential becomes more widely understood, it is likely that the indirect discrimination provisions both of the DDA and of earlier legislation will be more extensively used than has been the case to date.

General limitations of anti-discrimination model

12. However, there are also limitations which affect the non-discrimination provisions of the DDA equally with the equivalent provisions of earlier legislation. These limitations relate to the open ended and flexible nature of the concepts used in these provisions.

13. Anti-discrimination legislation, of the present Australian model, contains a number of terms requiring interpretation - both legally and in the light of particular fact situation. Even the terms "equal" and "discrimination", which might appear simple and obvious in meaning, are the subject of an expanding body of case law and other writing seeking to interpret these terms.

14. Indirect discrimination law offers a very powerful means of challenging rules, practices and features of situations which exclude or disadvantage people with a disability. It therefore also has potential to impose far reaching requirements on government, business and others with obligations under the law, to remove barriers to equal participation. However, the operation of this area of law is conceptually complex, and its application may involve difficult problems of evidence. Problems may arise in particular in identifying the appropriate groups for comparison, as the basis for finding that an apparently neutral requirement or condition has a discriminatory impact.

15. Direct discrimination law requires comparison between the treatment of the person with a disability and how a person without the disability is treated, or would be treated, in circumstances which are the same or "not materially different". [7] Finding an appropriate basis for comparison presents some difficulties. In particular, the meaning of "materially different" in the DDA and other legislation is not clearly established.

16. There are further specific provisions in the DDA which do not have equivalents in earlier Federal discrimination legislation, as in the disability discrimination area there is a need to determine how far and in what circumstances other parties should be required to accommodate differences which a person's disability may cause in the way he or she works, gains access to services, and so on. Provisions performing the same function in earlier State legislation are significantly different in their terms, as the DDA seeks to avoid weaknesses in the earlier legislation. The result is that many of these provisions of the DDA are yet to receive authoritative interpretation.

17. Of these provisions, those dealing with "unjustifiable hardship" are most important for the purposes of this discussion. As already noted, the DDA improves on earlier legislation in this respect by indicating that benefits, as well as costs or detriment, to all parties affected must be considered in determining whether an accommodation or adjustment would involve unjustifiable hardship. However, the factors listed by the DDA still have to be applied to the facts of each particular case, rather than there being some benchmarks set on the basis of which it can be clearly seen in advance whether a particular adjustment is or is not required.

18. This legislative model allows the circumstances of each case to be taken into account, and each decision tailored to the requirements of fairness in these circumstances. Thus, for example, it is possible under the DDA to impose more demanding requirements on a large corporation than a small comer store, without setting any arbitrary cut off points such as in terms of numbers of employees.

19. However, there are a number of disadvantages to this open-ended and flexible model. These have particular relevance in the area of disability discrimination, where what is required is not simply a passive refraining from conscious, deliberate or prejudiced discrimination, but also an active process of removal of barriers to equal participation in the activities and areas covered.

20. These disadvantages include the following:

Role of standards in addressing these limitations

21. Standards may be of assistance in addressing these issues by:

22. In addition to the role of standards as an authoritative form of provision of information and setting of targets, standards may assist business towards compliance by preventing some enterprises in an industry from seeking to gain a competitive advantage, by not investing time and resources in making necessary adjustments, over enterprises which do make these investments.

23. While the existing provisions may also be used for the same purpose (since they make non-discriminatory practice a matter of legal obligation rather than individual benevolence or foresight), the greater degree of certainty inherent in standards is likely to make them more effective in achieving this purpose and thus contributing to a "level playing field". That is, uniform standards may assist in preventing some enterprises attempting to gain a free ride at the expense of others (and at the expense of people with a disability).

Effect of standards on existing provisions

24. Where an act is done in accordance with a disability standard, section 34 of the DDA protects that act from being unlawful under the existing anti-discrimination provisions of the DDA.

25. Development of standards therefore would not simply mean additional rights, and obligations, alongside those already provided for in the DDA. Rather, introduction of standards could mean a process of "trading off":

26. In practice (for the reasons set out above), introduction of standards is likely to achieve change towards equality of access and participation for people with disabilities sooner and on a more widespread basis than if the existing anti-discrimination provisions are relied on alone. There is nothing inherent in the concept of standards as provided for by the DDA, however, which means that they will necessarily involve increasing the legal rights and obligations which already exist under the DDA, in favour of people with a disability and at the expense of business, government, and others obliged to comply with the DDA.

27. Whether standards increase or decrease the level of legal rights and obligations compared to the present provisions of the DDA depends on the content and structure of the particular standards introduced. What is inherent in standards is their ability to increase certainty for all parties affected. This may be regarded as a valuable feature by governments and business, as well as by people with a disability.

Exemptions

28. The existing non-discrimination provisions of the DDA are subject to a number of exemptions, set out in Part 5 of the DDA. These exemptions relate to:

The DDA also provides for temporary (up to 5 years) exemptions to be granted by HREOC.

29. However, these exemptions contained in the DDA, and the power of HREOC to grant exemptions under section 55, are specified not to apply to disability standards. [9] Disability standards would therefore need to be designed with particular care to ensure that any necessary limitations on the circumstances where standards apply are built into the standards themselves.

Areas in which standards may be made

30. Section 31 of the DDA provides for standards may be formulated in relation to employment, education, accommodation, provision of public transportation services and facilities, and the administration of Commonwealth laws and programs.

31. The areas listed in section 31 are narrower than the range covered by the existing anti-discrimination provisions of the DDA. In particular, there is no specific provision for making of standards regarding access to premises. There is also no specific provision for standards regarding provision of services and facilities other than public transport. [10]

32. However, there is nothing to prevent access issues (both physical access and communications access) being the subject of standards in the contexts of employment, education, accommodation (which includes both residential and business accommodation), provision of public transportation services and facilities, and the administration of Commonwealth laws and programs.

33. Despite the limitations of the coverage of section 31, the areas in which standards are permitted to be made are very wide. For example, standards may be made concerning any aspect of the administration of Commonwealth laws and programs which is relevant to people with a disability. This is not restricted to programs specifically targeted at people with disabilities, but clearly extends to access to mainstream programs. For this purpose, Commonwealth laws and programs are not restricted to those directly conducted by the Commonwealth, but extend to a wider range of programs conducted by other agencies on behalf of the Commonwealth.

Possible models for disability standards

34. The DDA leaves the nature of standards to be determined, rather than specifying in any detail what the structure and concepts of standards should be. The Minister's Second Reading Speech and community input to the legislative process indicate that the models provided by North American legislation, in particular the Americans with Disabilities Act ("the ADA"), should be considered (although these models need not be followed in any respect in which it would be inappropriate to do so in view of Australian circumstances and experience, including community views)

35. The ADA and associated regulations are a large and in some respects complex body of law. This Issues Paper seeks to identify some major features, rather than providing a comprehensive discussion. A more detailed examination of the models provided by overseas experience would be required as part of the process of developing disability standards under the DDA. The American legislation and associated regulations point to a number of possible types of standards, varying in their degree of prescriptive detail, and in processes and timeframes provided for. Different types of standards may be suitable for different areas, or at different stages.

Deadlines for accessibility

36. The Americans with Disabilities Act ["ADA"] was enacted on 26 July 1990. However, it contains a number of "effective dates" from which various requirements take effect.

37. For example, under Title II of the ADA, which deals with transportation: newly ordered public transport vehicles were required to be accessible to people with a disability from 26 August 1990; the ADA Accessibility Guidelines must be adhered to by transport providers constructing new facilities or altering existing facility from 26 January 1992; key commuter stations must be accessible by July 26 1993, that is within 3 years of the enactment of the ADA (with possible extensions in some cases up to 20 years, however, where modifications would be extraordinarily difficult or expensive) existing rail systems are required to have at least one accessible car per train "as soon as practicable" but in any event no later than by July 26 1995, that is 5 years after the ADA was enacted; intercity trains are required to provide a number of spaces for wheelchairs, and transfer seats, equivalent to 50% of the number of cars in the train by 26 August 1995, and equivalent to 100% of the number of cars by 26 August 2000; existing rail cars which are remanufactured to extend their life by ten years or more must be made accessible to the maximum extent feasible; existing inter-city rail stations are required to be accessible by July 26 2010 - that is within 20 years of the enactment of the ADA.

38. These timelines indicate the fact that some aspects of public transport involve very large items of investment in equipment or infrastructure which necessarily have long lifespan, and that achieving fill accessibility may therefore be a prolonged process. They also indicate, however, that the fact that this is so for some items of investment in public transport does not mean that all requirements for progress towards accessibility need be deferred for the same long periods. all new construction and facilities being required to conform with accessibility requirements after a relatively short period [18 months] to allow finalisation and dissemination of those requirements; existing facilities being required to conform with certain requirements for access "as soon as practicable"; with a number of progressive deadlines being set subject to allowance for circumstances where it is particularly difficult to meet these; and a final long-term deadline being set with the aim of a filly accessible public transport system.

39. The requirement to achieve certain standards "as soon as practicable" but in any event by a specified date is of particular interest for the purpose of standards under the DDA. Since compliance with a disability standard is a sufficient condition for compliance with the relevant anti-discrimination provisions of the DDA, a deadline which simply required compliance by a specified date could have the effect of providing a complete exemption from compliance before that date. It may be possible, however, for a disability standard to set a number of fixed deadlines, but also to require compliance before those deadlines "as far as practicable" or "readily achievable" or "achievable without unjustifiable hardship" [11].

40. Reproducing a concept such as unjustifiable hardship within disability standards would reduce the degree of additional certainty which such standards could contribute. However, this affects only the point by when compliance must be achieved, rather than the content of the obligations to be complied with, regarding which standards could still be expected to be of considerable assistance. A degree of flexibility in the timetable for achieving compliance may be required in some areas, such as public transport, to allow for the different circumstances and resources of individuals and organisations within the scope of standards.

Standards and action plan requirements applicable to government activities

41. The requirements applicable under the ADA to U.S. State and local governments provide further models for consideration. State and local governments are subject under the ADA [Title II, Subtitle B] to general requirements of non-discrimination on the basis of disability, and are not permitted to exclude people with a disability from the benefits, services or programs provided by the government. These requirements cover issues of access and of effective communication, as well as other areas of discrimination. These obligations are subject to the conditions that: the person concerned is able to meet the "essential eligibility requirements" for the program, service or activity; and any adjustments required to enable the person to participate do not involve an "undue burden" or change the fundamental nature of the program or activity.[12]

42. These obligations are broadly comparable to those which now apply under the DDA to Commonwealth, State and local government provision of services, and to administration of Commonwealth laws and programs. However, the ADA, and regulations made by the Department of Justice [the ADA State and Local Government Regulations], specify in considerably more detail how, and by when, these non-discrimination and accessibility requirements must be met.

43. In particular:

44. The "transition plans" required under the ADA regulations are clearly similar to "action plans" under the DDA, except that action plans are voluntary. However, it may be possible to incorporate a requirement for transition plans in standards under the DDA, in the areas where standards are permitted to be made. In particular, such a requirement could be applied to administration of Commonwealth laws and programs.

U.S. accessibility regulations

45. In setting deadlines by which accessibility must be achieved in various areas, the ADA regime also provides standards to define what accessibility means for this purpose The ADA required the Architectural and Transport Barriers Compliance Board to issue guidelines for the purposes of the accessibility requirements of the ADA regarding transportation and public accommodations. The guidelines which have been issued are the ADA Accessibility Guidelines for Buildings and Facilities and the ADA Accessibility Guidelines for Transportation Vehicles. The guidelines contain minimum requirements for new construction and for alterations, and include technical specifications (with detailed diagrams and measurements) for accessibility of premises and facilities. Issues of communications and information access are covered, as well as physical access.

46. These guidelines have been adopted in regulations made by the Department of Justice and the Department of Transportation respectively, and have enforceable effect accordingly. These regulations were required by the ADA itself to be made within one year from the enactment of the ADA, and required to be consistent with the guidelines issued by the Compliance Board.

47. The DDA does not contain similar requirements for standards to be made within a specified time, and does not nominate a body comparable to the Architectural and Transport Barriers Compliance Board as having responsibility for developing the content of standards. Despite these differences, the processes adopted under the U.S legislation may be relevant in considering standards in Australia under the DDA.

Requirement for consultation

48. The Government made clear commitments to consultation with affected parties in the making of disability standards.[14] These commitments reflect a recognition that consultation with interested and affected parties is necessary if disability standards are to be realistically achievable and reflect the real requirements of people with disabilities.

49. Effective and extensive consultation has particular importance because of the effect of disability standards in conjunction with DDA section 34 (which in effect states that an act which would otherwise be unlawful under the general anti-discrimination provisions is not unlawful if done in accordance with a disability standard). There is a need to ensure that such limitation of existing rights does not occur inappropriately and without frill consideration.

50. Concern regarding the possible effect of disability standards, in conjunction with section 34, in limiting the application of the general anti-discrimination provisions, in fact led one organisation involved in advocacy on behalf of people with disabilities [15] to express opposition to the inclusion of the standards provisions in the DDA.

51. The Government and the Parliament were not persuaded to this view (nor was HREOC) and, as already noted, the predominant view expressed by people with a disability and by representative organisations was strongly in favour of provision for disability standards. Nonetheless, the point that disability standards have the potential to reduce the protection afforded by the general anti-discrimination provisions requires acknowledgment in consideration of the development of such standards.

52. The connection between appropriate consultation and avoiding inappropriately restrictive standards being introduced was recognised in evidence to the Senate Standing Committee: "Provided the time lines, whenever that happened, were such as to allow genuine community consultation and genuine community input to the content of such standards, that would go a long way towards addressing the concern." [16]

53. A commitment to consultation also reflects expectations expressed by and on behalf of people with disabilities during the development and consideration of the DDA. For example, ACROD's submission to the Senate Standing Committee on Community Affairs stated: "It is assumed that standards will be developed jointly by Governments, people with disabilities and other people with expertise in the area."

54. Consultation is also required because the agencies designated by the DDA as having responsibilities regarding the development of standards - the Attorney-General and HREOC - clearly do not have direct expertise or competence in all of the matters needed to be dealt with if appropriate standards are to be developed.

Requirement for consultation with State and Territory Governments

55. It was noted on behalf of a number of State Governments in the development of the DDA that a number of the areas potentially subject to disability standards were areas where State and Territory Governments have significant program and financial responsibilities. For this reason, these Governments sought, and the Commonwealth agreed to, the inclusion in the DDA of a provision intended to ensure that consultation with State and Territory Governments occurred prior to the introduction of disability standards, and that due regard would be given to views expressed by State and Territory Governinents. [17]

Timetable for consideration of standards

56. As already noted, the DDA does not set out a timetable for the introduction of disability standards. The timetable for standards overall and in particular areas remains a matter for decision by the Attorney-General.

57. Strong community expectations were expressed when the DDA was passed that standards would be considered at an early point. Early introduction of standards in some areas (containing realistic internal timetables for implementation) may also be of interest to business and government, for the reasons discussed earlier in this paper concerning certainty of obligations.

58. The DDA Disability Standards Working Group proposes the following timetable for discussion.

1993/4: Setting of overall timetable and working arrangements for consideration of standards. Consideration of public transport standards by Working Group to commence in co-operation with the National Accessible Transport Committee. Working Group to commence development of draft standard on processes for access and equity in administration of Commonwealth laws and programs (including compulsory action plans)

1994: Development of draft "common core" of standards to commence with a view to subsequent application to each specific area covered. Attorney-General to consider the draft standard on processes for access and equity in administration of Commonwealth laws and programs

1995: Based on "common core" and further consultation and development as appropriate, Committee to consider standards for: public transport; access (communications and physical) to Commonwealth laws and programs; "public accommodations" (i.e. shops, theatres, restaurants, libraries, hospitals, banks, offices etc) (to the extent permitted by the scope of standard making provision); accommodation; accessibility of education facilities (all levels); employment including Commonwealth employment

1995/6: draft standards based on 1994/95 work submitted to Attorney-General, with priority to be given to standards on Commonwealth programs and on public transport, and otherwise in priority order to be determined.

Issues for discussion:

Appendix: Disability Discrimination Act provisions regarding disability standards

31.(1) The Minister may formulate standards, to be known as disability standards, in relation to:

(a) the employment of persons with a disability; and
(b) the education of persons with a disability; and
(c) the accommodation of persons with a disability; and
(d) the provision of public transportation services and facilities by: (i) the Commonwealth; and (ii) a State; and (iii) a Territory; and (iv) a public authority of the Commonwealth; and (v) an instrumentality of a State; and (vi) a public authority of a Territory; and (vii) any other person; to a person with a disability; and
(e) the administration of Commonwealth laws and programs in respect of persons with a disability.

(2) Disability standards formulated in accordance with this section are to be laid before each House of the Parliament within 15 sitting days of that House after the disability standards are formulated and take effect only as provided by the following provisions of this section.

(3) If:
(a) notice of a motion to amend the disability standards is given in either House of the Parliament within 15 sitting days after the disability standards have been laid before that House; and
(b) the disability standards, whether or not as amended, are subsequently approved by that House; and
(c) the other House approves the disability standards in the form approved by the first-mentioned House; the disability standards take effect in the form so approved from the day on which that other House approves the disability standards in that form.

(4) If no notice of a motion to amend the disability standards is given in the House of Representatives or the Senate within 15 sitting days of the particular House after the guidelines [sic] have been laid before that House, the guidelines [sic] take effect from the day immediately after that 15th sitting day or, where that day differs in respect of the each house, the later of those days.

32 It is unlawful for a person to contravene a disability standard.

33 Division 5 does not apply to disability standards.

34 If a person acts in accordance with a disability standard this Part does not apply to the person's act.

132 (1) The Governor-General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Before making any regulations for the purposes of section 31 or 47, the Governor-General is to 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.

Notes:

1. Section 31. This section of the DDA, and others most relevant to the discussion, are set out as Appendix A to this paper.

2. Under DDA section 31.

3. During the consultative processes prior to the passage of the DDA, some concern was expressed at potential for confusion between "disability standards" and the National Standards for Disability Services which have been developed in connection with the Disability Services Act and the Commonwealth-State Disability Agreement. The differences between the two types of standards are as follows. The Standards for Disability Services are principally concerned with services specifically for people with a disability, and issues of quality and accountability in these services. Disability standards under the DDA are not restricted to specific disability services. They cover issues of access and equal participation in areas of public life as members of the general community, not just as clients or recipients of specific disability services. However, there may be some overlap between the two sets of standards. For example, disability standards under the DDA concerning accessibility standards for accommodation could apply to specific accommodation services for people with a disability as well as to general purpose accommodation such as hotels.

4. Participation by the Disability Discrimination Commissioner in the Working Group does not limit her independent right and responsibility as a member of the Human Rights and Equal Opportunity Commission (HREOC) to report to the Attorney-General "on matters relating to the development of disability standards" [DDA s.67(l )(d)}.

5. The Attorney-General's Department, the Department of Health Housing and Community Services, HREOC and the Disability Advisory Council of Australia (DACA) were the members of the Disability Discrimination Legislation Committee which advised the Government on the development of the DDA. Disabled Peoples International (Australia) has been added to this group on an interim basis to provide continuity of representation for the interests of people with a disability, as the term of office of DACA, the Government's formal advisory mechanism in this area, concludes at the end of 1993.

6. The existing non-discrimination provisions of the DDA, other than section 29 dealing with administration of Commonwealth laws and programs, qualify the application of the concept of discrimination by reference to whether unjustifiable hardship would be imposed on other parties. Section 11 of the DDA indicates that in determining whether unjustifiable hardship exists, HREOC is required to consider all factors relevant to the case, including the benefit or detriment to all parties affected; the effect of the disability of the person concerned; the financial circumstances of the person required to make any adjustment or accommodation and the amount of expenditure required; and any action plan lodged by the person complained against.

7. However the DDA does ensure that people with a disability are not automatically regarded as in materially different circumstances by reason only that disability makes some difference to the way a person does the job, uses the service, etc. DDA section 5(2). does this by in effect requiring the issue of "reasonable accommodation" to be considered before the issue of material difference is reached.

8. Section 61 of the DDA specifies that an "action plan" should include provisions relating to devising of policies and programs to achieve the objects of the DDA; communication of those policies to persons within the organisation; review of practices within the service provider with a view to identifying any discriminatory practices; means of evaluating the policies and programs adopted, including goals and targets where these can reasonably be determined; and appointment of persons to implement the action plan.

9. See DDA section 33.

10. This contrasts with the position in the United States, where accessibility standards under the Americans with Disabilities Act apply to a wide range of "public accommodations" - that is, any establishments which sell goods or provide services or facilities to the public, including theatres, restaurants, bars, shops, museums and galleries, convention centres, or recreational or sporting facilities.

11. If the term "readily achievable" is to be considered for use in disability standards, it should be understood that in the ADA this term does not require any alterations involving more than a minimal level of expense or inconvenience. What is "readily achievable" may be much less demanding than the existing requirement of the DDA that adjustments must be made which do not impose "unjustifiable hardship" - since in some circumstances significant levels of "hardship" may be "justifiable".

12. "Undue burden", however, does not operate as an absolute defence. Reasonable alternative means of providing the service, or ensuring participation in the program, must be found for a person with a disability who meets the essential eligibility requirements.

13. The Architectural and Transport Barriers Compliance Board is an independent statutory body, and consists of 12 members appointed by the President, at least 6 of whom must be persons with a disability; and the heads of the Departments of Defence; Education; General Services Administration; Health and Human Services; Housing and Urban Development; Interior; Justice; Labour; the U.S. Postal Service; and Veterans Affairs.

14. The Minister's Second Reading Speech committed the Government to extensive consultation with all affected parties in the making of disability standards. Likewise, the Explanatory Memorandum accompanying the Disability Discrimination Bill as introduced stated that "[i]t is intended that the provision of the standards would not occur without considerable consultation . ..". A similar commitment was repeated by Mr Johns, the Parliamentary Secretary to Mr Howe, in closing the debate on the Second Reading of the Bill in the House of Representatives. The Outline of the Proposed Bill, issued by the Disability Discrimination Legislation Secretariat within the Attorney-General's Department, also stated that "[such provisions would only be the subject of regulation after further investigation, consideration and consultation with affected and interested parties."

15. In evidence to the Senate Standing Committee for Community Affairs, the Villamanta Legal Service, Geelong, submitted: "We are concerned that the creation of disability standards by regulation, as provided for under section 31, has great potential to by-pass the legislation, the Commissioner and the Commission. Compliance with a disability standard is both necessary and sufficient to comply with the Act, even where the situation in which discrimination is alleged is not one to which the drafters of the regulation had put their minds There is also no guarantee that Disability Standards will form a coherent or consistent code, or that they will be realistic (in terms of what can be expected of an employer, education institution, provider of goods, services, etc.). We believe the best option would be to simply remove all provisions relating to disability standards from the Act."

16. M.D'Argaville, Villamanta Legal Service, 9 October 1992. A similar emphasis was placed on consultation for the purpose of avoiding inappropriate narrowing of the protection of the legislation in other submissions to Government (which were not, however, made publicly and are therefore not quoted here).

17. Section 132(2) of the DDA provides: "Before making any regulations for the purposes of section 31 or 47, the Governor-General is to 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." There is a technical problem affecting this provision. In the DDA as introduced, disability standards were to be made by regulation (and so section 132 would apply). However, in the Senate an Opposition amendment was passed to expand the provision made for Parliamentary involvement. The procedure now provided for by DDA section 31 does not appear to involve regulations being made by the Governor General. Rather, disability standards developed by the Attorney-General take effect of their own force, subject to possible Parliamentary amendment. In view of the commitments made by the Commonwealth Government in the debate on the DDA, however, it appears appropriate for the procedure specified in section 132(2) to be treated as binding. "