Melbourne University Law Review
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Melbourne University Law Review |
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LEE ANN BASSER[∗] AND MELINDA JONES[†]
[Until relatively recently, people with disabilities have been excluded from society. In line with international developments, the Commonwealth government enacted the Disability Discrimination Act 1992 (Cth) to protect the rights of people with disabilities in Australia. With unusual insight into what is needed to create a more just society — a society which is able to include all its members — the DDA included a unique range of strategies for dealing with the problems of discrimination and inequality. This article argues that the protections contained in the DDA are consistent with the three-dimensional approach to operationalising human rights: an approach to human rights that involves empowering people with disabilities (or other minority groups), a proactive state, and a community that considers the issue of inequality within its power to resolve. While the position of people with disabilities in Australia remains grim, in its ideal operation the DDA could be a powerful tool for social change.]
CONTENTS
No volume on human rights would be complete without an appraisal of the rights of people with disabilities. Yet people with disabilities are often left completely off the agenda. The current push to develop an International Convention on the Rights of People with Disabilities is the international strategy for ensuring the inclusion of people with disabilities in the human rights conversation.[1] It is believed that such a move is necessary to ensure that people with disabilities are treated with dignity and respect, recognised as equal rights-bearers and ensured the ability to participate fully in all aspects of the societies in which they live. At present, in Australia as elsewhere, people with disabilities are the most vulnerable of all groups.
People with disabilities report human rights abuses on a daily basis and are regularly expected to overcome hurdles that do not block the paths of other Australians. In the past, people with disabilities were simply excluded from society — locked in institutions, segregated into special schools, and hidden within the private realm of the family. Out of sight, people with disabilities were also out of mind. Today the overt presence of people with disabilities in the community has forced recognition of some of the issues they confront. When people with disabilities are women, they have all the issues relating to gender as well as those relating to disability. For example, evidence of the rape and sexual abuse of young women suggests that anywhere between 70 and 90 per cent of women with intellectual disabilities are victims of such crimes by the time they reach 18.[1] Similarly, where people with disabilities are also members of groups targeted on racial grounds, they must confront issues relating to race as well those relating to disability. For example, no group of children is as at risk of being deaf or blind as indigenous Australians. It is well known that 70 per cent of school-aged indigenous children in the Northern Territory suffer hearing loss because they do not have access to readily available antibiotics, and blindness is 10 times as prevalent in the indigenous community.[2] Further, the Australian Institute of Health and Welfare suggests that the rate of disability in the indigenous community is twice that of the general population.[3]
The term ‘people with disabilities’ encompasses a very wide range of differing life experiences and physical and mental states. Included in the term ‘people with disabilities’ are those whose activity is limited by physical disabilities; those with visual or hearing disabilities; those with chronic illness, mental health, and communication disorders; those with intellectual disabilities, genetic disorders, and disfigurement; and those with problems associated with aging or with delay in achieving developmental milestones.[4] People with disabilities can be young or old; rich or poor; high or low functioning; dependent or independent. In any test, people with disabilities (as with women, gay men and lesbians, and minority races) will exhibit the full range of outcomes, with success very dependent on factors such as the nature of the test and the reason for its administration. Further, unlike gender, race or sexuality, disability can be acquired at any point in a person’s life and could have greater or lesser impact on the individual depending on the environmental context in which they live.[5]
Commonly held attitudes towards disability make the assertion, as well as the achievement, of human rights for people with disabilities particularly problematic. People with disabilities have been viewed as abnormal, monstrous and evil; as irrational and fundamentally lacking in commonsense or intelligence; as tragic figures possibly deserving of pity and worthy of charity; or as deviant, dependent and worthless. To make matters worse, people with disabilities stand accused of draining society of resources which should be spent on ‘lives worth living’.[6] Media portrayals rarely show people with disabilities as independent, competent individuals — rather, it is common to see caricatured images of morally degenerate, mentally ill persons posing a serious threat to the wellbeing of society.[7] The combined response of pity and fear has resulted in people with disabilities being excluded from almost all the benefits of an advanced Western capitalist society. People with disabilities are more likely than anyone else in the community to live in poverty, to be unemployed and to receive an inadequate education.[8] Much needs to be done if the equality rights of people with disabilities are to be achieved.
Human rights principles are intended to ensure that being human is sufficient grounds for equality and freedom. The achievement of rights requires more than a declaration of entitlement. Given the level of human rights abuse to which people with disabilities are subject, the achievement of rights must rely on strong and enforceable law. Ideally, human rights law would be found at the pinnacle of both the political and legal systems: human rights law would limit the activities of the state as well as the day-to-day lives of all members of the community. Were human rights the fundamental governing principle of society, they would be embedded in the Constitution itself, or at the very least, in a bill of rights.
The question of introducing formal protection of human rights has been on and off the Australian political agenda a number of times. However, at this point in time, there is no constitutional protection of rights and not even a declaratory bill of rights. The Australian government is authorised by the external affairs power[9] to enter into treaties and international conventions.[10] Australia has indicated a certain level of commitment to human rights by being a signatory to each of the major international human rights instruments.[11] However, international law is not automatically incorporated into Australian law.[12] For international law to have a real impact on the operations of Australian government or the community, it is necessary for it to be translated into domestic legislation. This has not occurred. As a result, the Australian approach to human rights can be found in a suite of anti-discrimination laws protecting the rights of minority racial groups through the Racial Discrimination Act 1975 (Cth) (‘RDA’); the rights of women through the Sex Discrimination Act 1984 (Cth) (‘SDA’); and the rights of people with disabilities through the Disability Discrimination Act 1992 (Cth) (‘DDA’).
At first sight, the DDA looks to be a simple anti-discrimination law operating in much the same way as the SDA and the RDA. However, as this article will demonstrate, the DDA is in fact a human rights instrument with a sophisticated mechanism for operationalising the human rights of people with disabilities. The ideal process for achieving equality for vulnerable groups involves a commitment to change on the part of the individuals concerned, the state and the community as a whole. These are the three dimensions of human rights praxis, where the potential hegemonic force of equality becomes the commonsense approach to including rather than excluding the target group. This three-dimensional approach opens the way for the achievement of the full potential of human rights principles.
The three-dimensional approach to human rights encompassed in the DDA offers a framework for protecting the rights of other groups experiencing human rights abuses. This is because the three-dimensional approach offers a strategy to ensure that human rights abuses are not marginal experiences or the responsibility of minority groups. However, the three-dimensional approach to human rights protection is not the only important and distinctive aspect of the DDA. At an international level, the Americans with Disabilities Act of 1990 (‘ADA’)[13] has been adopted uncritically by jurisdictions seeking to protect the human rights of people with disabilities within their communities as if it is the only available model. Yet, were more known about it, the DDA would provide an alternative path for protecting the rights of people with disabilities, a path which we believe would provide greater empowerment of people with disabilities. For this reason, the first aspects of the DDA we consider are those which distinguish it from the ADA.
The difference between the Australian approach to disability rights and the approach of the ADA is fundamental and indicative of the very different attitudes to, and experiences of, equality. Even the aims of the DDA diverge markedly from those of the ADA, having a much broader mandate from the Australian Parliament than the ADA received from the United States Congress. Francis and Silvers note the somewhat conflicting aims of the ADA included ‘eliminating arbitrary prohibitions against being in the world, ending inequality of opportunity, and reducing the costs to the United States of unnecessary dependency’.[14]
On the other hand, the DDA was motivated by a vision of
a fairer Australia where people with disabilities are regarded as equals, with the same rights as all other citizens, with recourse to systems that redress any infringement of their rights ... where difference is accepted, and where public instrumentalities, communities and individuals act to ensure that society accommodates such difference.[15]
Although the DDA is not categorised as a civil rights instrument, the commitment to the human rights of people with disabilities is clear. The explicit object of the DDA is:
The dramatic difference between the objectives of the two pieces of legislation is a reflection of the differing cultural, political and social environments of the two countries. The American commitment is to the ideals of individual liberty, equality and freedom; the Australian commitment is to the ideals of social justice and equal rights.[17]
The distinctiveness of the Australian approach comes from a combination of an historic commitment to social welfare and a cultural expression of the concept of the ‘fair go’. Australian political ideology has always been wary of rugged individualism and there has been a willingness to use law to facilitate social change. Australian political ideology can be seen as significant when one considers the two radical elements of the Australian legislation. The first of these elements is the way in which the Act embraces anyone who could, in any way, be considered a person with a disability. The second aspect of the legislation that reflects Australian values is the fact that the motivation for acting in a discriminatory manner is irrelevant. The DDA makes unintentional discriminatory action just as culpable as intentional discrimination. Both the scope of definition and the question of intention are a reflection of the idea that the law is not about punishing ‘evil’ nor protecting ‘good’. Questions of fault and blame have no place in legislative schemes designed to create a fairer society. Rather, the law seeks to protect those in need of protection and to prevent the impact of discrimination wherever possible. The law is not concerned with the motivation for discriminatory action nor is it concerned that the discrimination was well-intentioned. If a person discriminates against another on the ground of disability, they will not be protected simply because they believed they were acting in the best interests of the person with a disability.[18]
The Australian definition of disability is extremely broad and includes as disabled many people who would fall outside the scope of most other disability discrimination laws. The Australian definition of disability allows for the reality of the experience of disability, where what is meant by ‘disability’, or being a ‘person with a disability’, is a contingent category — an aspect of existence rather than a monolithic state. This approach does not depend on a person proving their abnormality and is suggestive of a more respectful way of valuing people with disabilities than is achieved by any other legislative model.
For the purposes of the DDA, a disability includes:
To establish that one has a disability, it is not necessary to show that one’s situation fits into any of the categories listed in the definition section. This is because where a legislative definition contains the word ‘includes’, the terms or factors listed are intended to be indicative of the type of factors consistent with the definition, rather than limiting the class. As such, the DDA will allow for any situation comparable to those factors listed. The inclusive definition recognises that what constitutes disability could vary over time and place. For example a condition existing today may not be disabling in the future and, equally, disabling conditions not even imagined at present could be sufficiently similar to the general ideas about disability to be covered by the DDA.
The protection of the DDA extends to people who do not in fact have disabilities, but are discriminated against because the discriminator believes that person to be disabled. The Act also protects those who are discriminated against because they may have a disability in the future or they have had a disability in the past. It protects people whose disability is intermittent and people who are discriminated against because of their relationship or association with a person with a disability.[20] In none of these situations is it necessary to show that the person in question deserves equal treatment, as this is assumed to be the case. Further, the Australian law is not concerned about whether the person subjected to discrimination is disabled as a result of his or her own action, or whether they have in some way contributed to their disability. As such, the DDA does not protect ‘worthy’ people with disabilities and deny protection to people with disabilities who are, at least in part, to blame for being disabled.[21] What is at issue is whether or not the person has a disability, and, given the breadth of the definition of disability, this is unlikely to be difficult to prove.
The definition of disability in the DDA was specifically drafted in response to the experience of State anti-discrimination law, where problems had arisen because of the interpretation of strict definitional criteria, which focused on impairment and medical categorisations. The case of Kitt v Tourism Commission[22] illustrates this point. Kitt had been employed as a temporary cave guide in the Jenolan Caves in the Blue Mountains. A medical examination was a precondition of permanent employment. When it was discovered that Kitt had epilepsy, he was told he could not work in the caves and was given a job selling tickets. A question of legal interpretation arose as to whether Kitt could challenge the decision on the grounds of disability. Instead of considering whether Kitt had been discriminated against, the focus of the case was on whether epilepsy constituted a physical impairment under the New South Wales legislation.[23] It was found that certain neurological disabilities (including epilepsy) and mental disorders were not covered by the legislation. The DDA was specifically designed to avoid such arbitrary outcomes.
There are a number of advantages to having a broad definition of disability. The first of these is that it is unnecessary to engage in complicated discussions about the relationship between impairment and disability. Much intellectual energy has been spent on this distinction. The World Health Organisation’s classification of impairment, disability and handicap defines ‘impairment’ as the medical problem a person has, a limitation of some sort or other, while ‘disability’ is the external limitations to which the person is subjected.[24] Whatever the attempts to draw these distinctions, they collapse in everyday usage where they become conflated. Avoiding this issue is therefore very important in legal actions seeking to protect the human rights of people with disabilities. The broad, general notion of disability in the DDA means that there is no need to focus on the person bringing the action, and this allows decision-makers to concentrate on the real issue — the actions of the alleged discriminator.
Minimising the need to involve medical or other professionals in claims of discrimination is also of great significance to people with disabilities. One of the greatest hurdles confronting people with disabilities has been the medicalisation of their lives. This has led to people being confused with, and reduced to, their biological or physiological condition. For example, it is often assumed that knowing that a person has Down Syndrome will tell you all you need to know about that person — forgetting that all individuals have unique personalities, values and experiences and that having a genetic disorder does not deprive a person of personhood. For people with disabilities, the removal of medical and other experts comes as a great relief. Until relatively recently, the medical model of disability supported assumptions such as the one described above and reduced the person to the impairment. Before people with disabilities could make use of a piece of legislation such as the DDA, it was essential for them to shed the perception that the site of their problems was their body.[25] Internationally, disability communities have become empowered through the acceptance of the social model of disability.[26] This model locates the barriers to inclusion: in the social fabric and structures of society. The key to equality for people with disabilities, on the social model, is the recognition of socially constructed barriers and their removal. That the Australian definition of disability incorporates the social model of disability makes it worthy of emulation.
Having such a broad definition of disability is very important from a legal perspective, as it ensures that legal actions do not founder at the threshold because of a technical decision about who is ‘disabled’.[27] We have argued elsewhere that to
focus on the question of who should be entitled to be considered disabled creates unnecessary confusion and limits the effectiveness of the legislation. It also creates an anomaly that very often individuals who have been treated less favourably than ‘normal’ members of the community because of an impairment are often unable to challenge their treatment or to be compensated for it.[28]
The Australian legislation avoids this trap, while at the same time using other mechanisms to balance the rights and interests of people with disabilities with the interests of the rest of the community. Moreover,
in adopting a simple and broad definition of disability, the Australian legislation offers the potential of inculcating change at a fundamental level. By including minor or trivial disabilities within its scope, the legislation provides for a flexibility in treatment of all members of the community, which ultimately must be to the advantage of those whose difference is more acute. For people with disabilities to be accepted into society, there needs to be a great degree of flexibility and respect for individual difference. Responding to complaints of a minor nature can pave the way for the attitudinal change that is a prerequisite to social change. For example, where a university modifies the exam procedure to accommodate the needs of a student with a broken arm, it will be more open to providing exam modification for a person who has a permanent condition which affects the use of the arm. Further, the existence of flexibility granted to ‘normal’ students normalizes the situation and makes it easier for a person with a disability to ask for support. Once accommodations are common and uncontroversial and not provided only for outsider groups, inclusion becomes a way of life and provides a backdrop for systemic change.[29]
In summary, a broad definition of disability is a unique and powerful feature of the Australian legislation. The definition makes it unnecessary to distinguish between impairment and disability. This is empowering for people with disabilities, as they do not have to prove that they are ‘abnormal’ or focus on their ‘deficits’ when they assert their equality rights. There is no need to focus on the particular wording of the DDA or to establish that the disability in question falls within a particular category of disability. This is consistent with the general principle of statutory interpretation that beneficial laws should be read broadly, and punitive laws read narrowly. Further, the coverage of the DDA is such that it allows for the protection of many people who would not generally be considered people with disabilities — ordinary Australians (like all people with disabilities) who are looking for fair treatment in the light of a relatively minor disability. In Australia there has been no need to promote the interests of particular groups of people with disabilities who can show historic disadvantage or who have operated as powerful lobby groups. Rather, a fairer society is recognised as one where people do not discriminate against each other on spurious grounds and where an effort is made to ensure that all people are included in all aspects of the social good. In this situation, factors such as disability are only relevant to the extent that there is knowledge of what needs to be done to accommodate inclusion.
Another distinctive feature of the DDA is that there is no need to prove that an alleged discriminator intended to discriminate against a person on the grounds of disability.[30] This again relates to the Australian position that the achievement of social justice does not depend on the attribution or finding of blame or fault on, in this case, the part of the alleged discriminator. In Waters v Public Transport Corporation,[31] a case decided under the Equal Opportunity Act 1986 (Vic), the High Court held that motive and intention to discriminate are irrelevant to the fact of discrimination.[32] In Garity v Commonwealth Bank of Australia,[33] a case decided under the DDA, Commissioner Nettlefold stated:
The effect of an impugned practice, not the underlying intent, is the governing factor in determining whether the practice gave rise to discrimination. Intent to discriminate is not a necessary element of discrimination ... The task is to determine whether the ‘true’ basis of the employer’s conduct is or was grounded on the prescribed consideration ... The test to be applied is objective, in the sense that it is necessary to show no more than that, because of the aggrieved person’s disability, she received the less favourable treatment.[34]
Hills Grammar School v Human Rights and Equal Opportunity Commission[35] provides a further illustration. Hills Grammar School refused to enrol Scarlett Finney on the ground that the accommodations that were necessary to support her enrolment would constitute an unjustifiable hardship on the school. In making this assessment, the school’s administration made inquiries about the needs of children with spina bifida generally, but did not look at the specific needs of Scarlett Finney herself. Hills Grammar School did not necessarily intend to discriminate against Scarlett but, in failing to look at the specific needs of the particular child, the school was found liable for unlawful discrimination. While less favourable treatment must be actuated by ‘disability’ under s 5 of the DDA 1992 (Cth), the causal link is determined by the court’s assessment of the circumstances of the case, not by the subjective rationale of the discriminator.
The effect of removing the requirement of intention to discriminate is that many well-intentioned acts will nonetheless be considered discriminatory. Decisions made in what is believed to be the best interest of the person will not stand if the effect of the decision is found to be discriminatory. This is an important aspect of the Australian law. The rights of people with disabilities would be undermined were patronising or paternalistic actions authorised by the DDA. On the other hand, finding actors liable for discriminating is not to classify them as ‘bad’ or ‘evil’ people, nor as people who are exploitative of others. The law is not concerned to pass moral judgement. Rather, it is concerned to rectify improper actions.
The Australian approach goes even further. Not only is the intention of discriminators irrelevant, they need not even be aware of the effect of their behaviour on people with disabilities. The fact that indirect discrimination is as unlawful as direct discrimination[36] shifts the focus from the behaviour of the alleged discriminator to the impact of their action. If the action concerned imposes a condition or requirement that is harder for a person with disabilities to meet than it is for people without disabilities, then it may constitute unlawful discrimination.
In Australia, it is recognised that social change can only come about if members of the community change the way they think and act. This will necessarily limit the freedom of those who would discriminate if not constrained. However, Australians do not value individualism to the extent that the legislators must prioritise the liberty of the general public over the equality of minority groups. If achieving the goal of equality for people with disabilities affects the liberty of would-be discriminators, then justice demands that there should be no freedom to discriminate. As the object of the legislation is the achievement of a fairer Australia, it is logical that well-meaning acts of discrimination must be prohibited alongside discrimination that is ill-intentioned, disinterested or accidental.
The elements of the DDA discussed so far are predominantly of concern to individuals seeking redress for human rights abuses. Allowing an individual the opportunity to bring an action and to vindicate their experience of discrimination is important psychologically, and is an essential feature of human rights legislation in an adversarial legal environment. However, individual complaints, even where ideally handled and resulting in optimal outcomes, can do little to achieve the systemic change required by a society that seeks to fully accord human rights to its members.
Although it is well known that individual complaints mechanisms are extremely limited, they are nonetheless the most common strategy in Western human rights legislation. Throughout the 20th century, the central struggle of people in minority and vulnerable groups involved gaining recognition of their rights as equals. The challenge for the 21st century is to develop mechanisms to operationalise human rights such that equality is a meaningful experience. The DDA is unique among anti-discrimination laws in including a strategy for actualising human rights. The strategy adopted by the DDA involves a three-dimensional approach to owning the problems of protecting the rights of people with disabilities. This approach involves the common effort of individuals with disabilities, the state and its instrumentalities, and the community as a whole. The object of the three-dimensional approach is to spread the responsibility for the achievement of rights for people with disabilities across society, such that all members of society are included in the outcome of equality.
In order for human rights to have a role to play in the lives of people with disabilities, two things are necessary. First, people with disabilities have to escape from the iron cage of the deficit model, where fault was located in the disabled individual. In this situation, it was assumed that, in order to be included in society, people with disabilities needed to change to become like other members of the society, rather than have society change to accommodate difference. The second requirement is the shift from a protectionist/welfarist approach to people with disabilities to the more general recognition of people with disabilities as rights-bearers. When these conditions pertain, people with disabilities are able to recognise and respond to the social barriers to their inclusion.
In the first of the three dimensions, the state establishes a process that allows people with disabilities to respond to unjust treatment. In the DDA, this is the traditional individual complaints process that is the core of all anti-discrimination laws. The individual complaints mechanism of the DDA empowers individuals with disabilities to respond to discrimination in an attempt not only to be compensated but also to change the way that discriminators act. In the first dimension, the ownership of the problem of disability discrimination belongs to empowered individuals with disabilities who take primary responsibility for the achievement of equality.
The second dimension of the process of operationalising human rights is also contained within the DDA. In this dimension the state plays an ongoing role in responding to inequalities, and operates proactively to deal with systemic discrimination which cannot be addressed simply through anti-discrimination processes. This second dimension involves a partnership between the state and people with disabilities in which the state shares the ownership of the problem with people with disabilities. Under the DDA the Human Rights and Equal Opportunity Commission (‘HREOC’), as a state instrumentality, is empowered to look beyond individual examples of discrimination, to take a broad view of specified areas of life and to respond to institutional inequality. The DDA provides for the making of ‘standards’ and ‘guidelines’ and for HREOC to undertake public inquiries into problem areas of discrimination. At the second dimension the assumption is that the state will collaborate with people with disabilities and take the inequality of people with disabilities seriously. In this process, it is expected that the interests and needs of other stakeholders will be taken into account and pragmatic solutions found for the protection of rights in the real world.
The third dimension involves the community at large taking responsibility for, and owning, the process of ensuring the full inclusion of people with disabilities into all aspects of the social, economic and political life of the community. Communal ownership goes well beyond compliance with law or acceptance of public policy. In this dimension, all members of the community are empowered to make the equality of people with disabilities real in the context of specific aspects of communal life. It is notoriously difficult to legislate for attitudinal change and communal ownership goes beyond this. Yet without legislative provision it is hard to imagine how the process of change could begin to come about. The DDA provides a mechanism for this, in the form of ‘Action Plans’. HREOC provides the blueprint for what an Action Plan could contain, bearing in mind that Action Plans for small businesses, social clubs and multinational corporations will differ. In the process of developing an Action Plan, organisations are encouraged to refine the blueprint by consulting and collaborating with people with disabilities, both within the organisation and with those people with disabilities who could potentially come into contact with it. In this way, the third dimension builds on the partnership of the state and people with disabilities by providing a role for the community at large. The most surprising aspect of disability rights in Australia is the way in which the three dimensions have opened the way for the community to take on board the rights of people with disabilities over and beyond the requirements of the Act.
From a holistic human rights perspective, the DDA leaves out many important aspects of human rights protection. Typical of anti-discrimination statutes developed in a Western capitalist society, the social, economic and cultural rights of people with disabilities are ignored. People with disabilities, perhaps more than other groups in society, often depend on social welfare to meet the costs of the basic rights to shelter, clothing and food. When the disability pension is not available,[37] or when the amount of money provided is insufficient to allow people with disabilities to participate in society, then people with disabilities will be forced to exclude themselves from the community. Similarly, where the cost of medical treatment and/or required medication is more than the sum on which people are expected to live, other rights are otiose. The issue of compliance with the law also needs to be considered. As most discriminatory conduct is left unchecked — and it is unlikely that the law will cover all aspects of life — the law will need to be inculcated through disability awareness training and human rights education.
Operationalising human rights requires that members of minority groups conceive of themselves as rights-bearers, and that there are mechanisms through which human rights abuses can be challenged and prohibited. In Australia, as in other jurisdictions, the actions of disability activists and their supporters ultimately led the state to provide a means of rights recognition and a mechanism through which unequal treatment could become known and, if possible, rectified. The individual complaints process is one in which people with disabilities, whether individually, collectively or through an agent, are able to take responsibility for challenging the conduct of discriminators. Grievance procedures such as those available under the DDA are the most common strategy for addressing human rights abuses through anti-discrimination laws.
Under the DDA, the complaints process involves asking a series of questions. As discussed above, the answer to the first question (is the applicant a person with disabilities or otherwise entitled to bring an action under the DDA?) will almost invariably be yes. This allows the applicant, and the decision-making body, to focus on the real question: has there been discrimination against a person, or against people, with disabilities? This is the crux of the issue, and involves both questions of fact and law. The issues of fact need to be targeted to the individuals involved in the proceedings, and not to people of the class of ‘disabled’ to whom the complainant could be said to belong (eg Down Syndrome). The questions of law relate to the range of forms the discrimination may take — direct discrimination, indirect discrimination or harassment. Once it is agreed that there has been discrimination, the onus shifts from the complainant to the respondent, who may seek to prove that the discrimination in question was lawful under the Act. If the discrimination is found to be unlawful, the final questions relate to the remedy and its enforcement. The circumstances in which discrimination is allowed under the DDA are specific to particular situations and, given that generalising the defences could be misleading, they will be considered below in appropriate contexts.
In the Australian context, disability discrimination means treating a person unequally because of a disability, whether the acts of discrimination are directed at the person, or simply impact differently on the person.[38] The DDA prohibits four types of discriminatory action: direct discrimination;[39] indirect discrimination;[40] harassment on the basis of disability;[41] and the asking of discriminatory questions.[42]
Direct discrimination occurs when a person with a disability is treated less favourably than a person without that disability.[43] The test of direct discrimination is an objective test focusing on the question of whether a person has been treated differently to a person without a disability ‘in circumstances that are the same or are not materially different’.[44] In determining whether circumstances are ‘not materially different’, an adjustment must be made for any accommodation or services required by a person with a disability to participate in the particular activity.[45] The fact that a person with a disability requires adaptations — such as a ramp to access a building, a guide dog to access the community, assistance from a teaching aide or special equipment to attend school, or information available in a variety of formats — is not sufficient to make circumstances ‘materially different’ within the meaning of s 5(1). The DDA recognises that people with disabilities are entitled to have their disabilities accommodated in a way which facilitates their participation in the community and that the need for accommodations per se does not render the circumstances ‘materially different’. Moreover, the mere fact that some accommodation is made to support the disability will not necessarily protect a ‘discriminator’ from a claim for unlawful discrimination.[46] The question is whether, assuming the relevant accommodations are made, the person with a disability has been treated less favourably than a person without disabilities in similar circumstances.[47]
Indirect discrimination occurs where a person is unfairly excluded from equal participation in society as a result of the imposition of a requirement or condition with which a disproportionate number of people with disabilities will be unable to comply. Section 6 of the DDA provides that:
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
This provision is unique to the DDA and represents an attempt to incorporate the principles of substantive equality into Australian law. It goes much further than other anti-discrimination measures, protecting people with disabilities from acts which are discriminatory in their effect rather than their intent. A pertinent illustration of the efficacy of this provision is Scott v Telstra Corp Ltd.[48] Telstra had a blanket policy of providing standard handsets for telephones but refused to provide any alternate telecommunications devices, including teletypewriters, for people with hearing impairments. Telstra tried to argue that the service it provided was the telephone network and that the provision of handsets was additional to that service. However, HREOC found that the service provided was communication over the network and that the requirement that the network be accessed by standard handsets was clearly one with which a disproportionate number of people with profound hearing loss could not comply and which was patently unreasonable in the circumstances. The refusal to provide people with profound hearing loss with teletypewriters therefore amounted to indirect discrimination.
In addition to the provisions relating to direct and indirect discrimination, the DDA contains provisions which prohibit harassment[49] and the asking of discriminatory questions.[50] For the purposes of the DDA, it is discriminatory to ask for information in circumstances where a person without a disability would not be required to provide that information.
There is an expectation that anyone involved with people with disabilities will make whatever reasonable adjustments need to be made to ensure that the person with a disability can function on equal terms to a person who does not have a disability. What adjustments (sometimes referred to as ‘accommodations’) are required will depend on the circumstances of the particular case. Matters pertaining both to the person with a disability and to the potential respondent to an action are relevant to the question of what accommodations should be made. Allowing a guide-dog into a restaurant, providing booklets setting out details of the Olympic program in braille, making changes to the layout of a workplace or offering an alternative assessment procedure are examples of accommodations. The type of adjustment required will take into account the ability of the provider to make the accommodation. For example, under normal circumstances, a small business would not be required to install a lift and a restaurant would not be required to produce a braille menu. On the other hand, if a business is part of a large enterprise, or if a school is part of a school system, the capacity of the institution as a whole to make accommodations is taken into account.
Failure to make appropriate adjustments for the disability constitutes discrimination. It is not good enough for an employer to refuse to make any changes to the workplace or for an education authority to refuse an alternative assessment procedure. Indeed, in Eyden v Commonwealth of Australia,[51] it was held discriminatory not to forewarn in the pre-employment interview stage that a specific impairment was considered a bar to employment, even though the applicant was told that a medical examination was a precondition of employment.[52]
A recent case highlights both the extent and the limitations of the anti-discrimination provisions. In Maguire v Sydney Organising Committee for the Olympic Games,[53] the complainant, Bruce Maguire, was a visually impaired man who wished to apply for tickets to the Sydney Olympic Games (‘the Games’). In Australia, tickets were only available by a complex application process, of which a ticket book was an integral part. The complainant made inquiries to the office of the Sydney Organising Committee for the Olympic Games (‘SOCOG’) about obtaining a braille copy of the ticket book, and was informed that the information would not be made available in braille due to the costs involved. Although SOCOG had considered the needs of people with visual impairment, at no time prior to the complaint did SOCOG consider producing a braille version of the ticket book. The accommodation SOCOG put in place was a help-line which began operation about a month prior to the Games, by which time many events were sold out. In this case, the complainant was able to successfully establish that SOCOG had discriminated against him in the provision of services. The Inquiry Commissioner found that, by not being provided with a ticket book in braille, the complainant was effectively denied access to the ticket book and the consequential services, including the opportunity to apply for tickets to the Games and, as such, was treated less favourably than a person without disabilities. However, given the timing of the case, many events at the Games were sold out and it was no longer feasible to produce the ticket book in braille. Consequently, although the complainant was provided with a second ticket book and personal assistance in completing his application for tickets, he was unable to obtain the outcome sought — the production of a braille version of the ticket book which could be completed without assistance.
Once it has been established that discrimination has occurred, the onus of proof shifts from the complainant to the ‘discriminator’ to prove that the discrimination was lawful. This is an important feature of the DDA. Not all discrimination is unlawful, and discriminatory conduct may be shown to be lawful on a number of grounds. It may be that the conduct complained of was exempt from the operation of the DDA, or that it was in direct compliance with other legislation or a court order, or it may be that the conduct complained of complied with a Disability Standard.[54] Discrimination may also be lawful if what is required to accommodate the person with the disability imposes an ‘unjustifiable hardship’ on the discriminator[55] or, in the area of employment, if the person with a disability is unable to meet the ‘inherent requirements’ of the job.[56]
While the defence of ‘unjustifiable hardship’ is widely available, it is nonetheless limited in application to those areas specified in the DDA.[57] The matters which are taken into account in determining whether or not particular adjustments impose ‘unjustifiable hardship’ on the respondent include: the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; the effect of the disability on a person concerned; the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and, in the case of the provision of services or the making available of facilities, an Action Plan given to HREOC under s 64.[58] Where the defence is raised, the court or tribunal must engage in an individualised investigation. Factors to be taken into account go beyond financial considerations, and involve balancing the respective rights and interests of the parties.
The complexity of the balancing act can be illustrated by a number of a cases. In Maguire v Sydney Organising Committee for the Olympic Games,[59] a subsequent complaint by Bruce Maguire about the accessibility of the Games web site, SOCOG attempted to rely on the defence of unjustifiable hardship, claiming that the cost and difficulty involved in making its web site accessible were too onerous, requiring extensive changes to infrastructure and significant labour costs. In determining whether the defence was made out, Commissioner Carter weighed the benefits of the accessible web site for the complainant against the costs to the respondent. He found that an accessible web site would be of considerable benefit to the complainant and other visually impaired people, whereas the cost to SOCOG of providing an accessible web site would be modest. He also considered the nature and effects of the complainant’s visual impairment, and the financial circumstances of SOCOG, which he identified as ‘a major agency supported by considerable financial infrastructure including Government funding’.[60] Commissioner Carter noted that the complainant would have had been able to minimise the impact of his disability through information available on the internet, but only if the information was presented to him in an accessible form. Taking into account all of these factors, Commissioner Carter found that the provision of an accessible web site would not impose an unjustifiable hardship on SOCOG.[61]
In the education context, the defence of unjustifiable hardship is only available in considering whether or not to accept a person’s application for admission to the educational institution.[62] Once a person has been admitted to an educational institution the defence is no longer available and the institution is obliged to make the necessary accommodations for the student with disabilities.[63] In the Hills Grammar Case, for example, the school could have refused to enrol Scarlett Finney on the grounds of unjustifiable hardship. This defence would have been available at the point of admission had the school been able to establish that providing Finney with the supports she needed, which included making the school campus accessible, imposed an unreasonable burden upon the school. However, the school was unable to establish this. Had Hills Grammar School enrolled Finney, an argument based on unjustifiable hardship would not have been available because the DDA makes it clear that once a person is enrolled in an educational institution, that institution must provide whatever is needed and cannot attempt to escape responsibility by claiming unjustifiable hardship.
In the area of employment, the DDA contains a provision similar to the ADA, allowing an employer or potential employer to answer an allegation of disability discrimination by showing that the complainant can not perform the ‘inherent requirements of the job’.[64] The DDA does not define the ‘inherent requirements’ of the job. However, the cases make it clear that what amounts to the ‘inherent requirements’ of a job is to be determined on the facts of each case. Further, the High Court has recently confirmed that the ‘inherent requirements’ of a particular job are not to be limited to the mechanistic performance of tasks, but must recognise the social skills required to perform the job effectively.[65] Factors to be taken into account in assessing whether or not an employee can fulfil the inherent requirements of a job include: the ability to perform the tasks or functions which are a necessary part of the job; productivity and quality requirements; the ability to work effectively in the team or other type of work structure; and the ability to work safely. In Y v Australia Post,[66] the employer, Australia Post, was able to establish from evidence of Y’s conduct that he was unable to fulfil the inherent requirements of the job. Y had a poor employment history with evidence of late attendance, harassment of a female co-worker, threats of violence to another employee and inefficiency at work.[67] The ability to meet the inherent requirements of the job are assessed by taking into account any appropriate ‘accommodations’ the employee may need in order to do the job.
The complaints process may be initiated by a number of people, including an individual with a disability,[68] a person acting on behalf of the person with a disability (where the person with a disability is unable to act on his or her own behalf),[69] and an associate of a person with a disability where the associate has been the subject of discrimination.[70] There is also provision for complaints to be made by more than one person in the form of a representative action.[71] In the first instance, complaints are conciliated by HREOC, but if the parties are unable to reach agreement the matter may then be heard in a court of law.[72] Again, the use of conciliation as the primary mechanism of dispute resolution is a distinctive feature of the DDA. Most individual complaints in Australia are resolved through this process.
Conciliation has a number of advantages for the individual complainant. It enables the individual to seek redress for a wrong. Being able to assert one’s rights, to complain about wrongdoing and to receive redress for the wrongdoing is an important part of being a member of a democratic society and, in itself, can be a source of empowerment. Conciliation is a relatively informal process and does not require the presence of a lawyer. It is low-cost and is conducted in private on an ‘in confidence’ basis. Conciliation is non-adversarial and is conducted by officers of HREOC — a specialist body with considerable expertise in human rights and disability issues. If a matter proceeds to a formal hearing, nothing that is said in the conciliation can be reported at the hearing. Conciliation provides a means of bringing the parties together to seek a resolution in which both parties have ownership. However, the disadvantages of alternative dispute resolution processes such as conciliation are well documented and apply equally here.[73] The private nature of conciliation means that it is unlikely that an individual complaint will lead to systemic change and, because the outcomes remain private, conciliated complaints have little educative effect.
Where a resolution is not reached through conciliation, the complaint is formally terminated by the President of HREOC.[74] An application may then be made to have the matter determined by the Federal Court of Australia or the Federal Magistrates Court.[75] A complaint can also be referred to a court where it raises an issue of public importance. The court application must be based on the acts, omissions or practices that were the subject of the original complaint.[76] Once an application is made to the court to have a matter heard, it is possible to also request that the court intervene in the dispute between the parties and make interim orders pending the hearing. To this end, the court has the power to restore the complainant to the position they were in immediately before lodging their complaint. For example, the court may order that a child is to remain at school until the matter is resolved.[77]
While the court is not bound by technicalities or legal forms,[78] the Federal Court and the Federal Magistrates Court are nonetheless formal courts of law and hearings are conducted with a degree of formality within an adversarial framework. Parties may appear in person or be legally represented or, with the approval of the Court, may be represented by someone who is not legally qualified but whom the Court accepts is an appropriate person.[79] There is a wide variety of remedies which a court can order once it is satisfied that there has been unlawful discrimination. The available remedies include: a declaration of right; an order declaring that the respondent has committed unlawful discrimination and prohibiting the respondent from continuing or repeating such acts; an order requiring the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the applicant; an order that the respondent employ or re-employ the applicant; an order that the respondent pay compensation to the applicant for any loss or damage suffered as a result of the conduct of the respondent; an order requiring the respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by the applicant; and an order declaring that it would be inappropriate for any further action to be taken in the matter.[80]
Unlike HREOC, where the complaints service is free, court fees and legal costs apply in the Federal Court and the Federal Magistrates Court. Legal representation is advisable in these courts, and the cost of such representation is significant. Legal aid for applications is very limited,[81] and most people with disabilities do not have the financial resources to bring a case in either the Federal Court or the Federal Magistrates Court. In addition, an applicant who initiates proceedings in either court risks incurring significant legal expenses if they lose their case, as the court has the discretion to award costs to the successful party. It would seem that the spectre of a costs order is a significant disincentive to people with disabilities who might otherwise bring a complaint under the DDA.
The complaints process is far from the ideal of the first dimension for operationalising human rights. Strategically providing a forum for people with disabilities to assert their rights and entitlement to equal treatment is a step in the right direction. But before it will have the effect of achieving human rights even in the first dimension, the processes and the way that the law is played out in Australia will need to be revised in the light of the objective of making things easier and better for people with disabilities. If the forum is inaccessible in any way, albeit a result of cost, time or other barrier, or if the process is disempowering or undermining of people with disabilities in any way, significant intervention will be required to protect the rights of people with disabilities.
The second dimension involves a proactive state taking ongoing responsibility to change the social structures in order to remove barriers to equality. In this dimension, one would expect that a state instrumentality would have the power to investigate any aspect of the life of the community where members of the minority group are unequal or are possibly so. Further, the state, via its instrumentalities, would take responsibility to mandate social change and monitor the process of that change. The body charged with removing barriers and promoting equality through education must also be accountable to citizens and the state. The state would obviously expect to harness the expertise of people with disabilities in locating inequality and in developing means of removing it. In this way, the boundaries between the first and second dimensions are blurred, as the state cannot operate on its own — people with disabilities and the state will need to join forces as stakeholders in order to achieve human rights in the second dimension.
The DDA includes a range of measures beyond the individual complaints mechanism, where the state and its instrumentalities have the opportunity to work in the second dimension. These mechanisms function both at an informal level, providing guidance for voluntary organisational responses to rectify social imbalance, and at the formal level, with legal requirements to redesign specific aspects of social life in order to bring about social justice for people with disabilities. Ideally the state will desire to ensure the full protection and assertion of human rights, bearing in mind that the objectives of the DDA include ensuring that persons with disabilities have the same fundamental rights as the rest of the community.[82]
The DDA is administered by HREOC and, together with the Attorney-General,[83] HREOC plays a continuing role over and beyond the normal administration of an anti-discrimination law. The DDA envisaged that, other than fulfilling its role as conciliator, HREOC would take the lead in developing standards designed to redress systemic discrimination; and would issue guidelines to clarify the terms of the DDA such that the complaints process could be avoided. As it has happened, however, the state has been surprisingly successful in discharging its responsibility to respond to systemic discrimination through the conduct of Public Inquiries. Neither the Disability Standards nor the Guidelines have lived up to expectations.
The DDA provides for Disability Standards to be developed in specified areas and for these to be enacted as a form of subordinate legislation.[84] The objective of including standard-setting in the DDA was to provide for a change in attitude towards, and treatment of, people with disabilities. Disability Standards were to be educative mechanisms to mould the proper attitude towards people with disabilities and their carers, and to rid society of stigma based on lack of understanding. Significantly, Disability Standards were seen as declarations of the right to public recognition of the qualities of people with disabilities as individuals, which involves respect for their contributions to society and abilities, as well as a statement of the full citizenship rights of people with disabilities.[85] The intention of Parliament was that the Disability Standards would displace the need for individual complaints by addressing systemic discrimination in the areas of transport, education, employment, accommodation, and the administration of Commonwealth government laws and programs. On 23 September 1999, the DDA was amended to allow for the development of Disability Standards on access to public buildings following the work of the building industry to improve access to buildings under the Building Code of Australia.[86]
One of the first steps taken after the enactment of the DDA was the funding of the DDA Standards Project, which considered that the purpose of the Disability Standards was to
make rights and obligations under the Disability Discrimination Act clearer and easier to understand, comply with, and enforce. DDA standards could do this by: setting out in more detail how the Disability Discrimination Act applies to particular issues; giving more detailed definition to concepts which the Disability Discrimination Act does not define, or only defines in general terms; and setting out more detailed principles to guide key decisions under the Disability Discrimination Act ...[87]
The experience of regulatory standards in other areas of law suggest that they should be capable of general application and not leave issues to be determined on an ad hoc ‘case by case’ basis.[88] However, the DDA provides no guidance to the process of the development, the minimum content, the requirements of consultation or the structure or form that a Disability Standard should take. As a result, there has been considerable time invested in the abortive development of Disability Standards, especially in the areas of education and employment. Instead of specifying and simplifying non-discriminatory conduct, there is a sense that the development of Disability Standards has been hijacked by non-disabled stakeholders and directed towards justifying discriminatory conduct rather than providing a means of responding to systemic discrimination. Rather than creating goodwill and a cooperative endeavour involving people with disabilities and the state, Disability Standards have become suspect, and the intention of the state under the second dimension to take responsibility to remove discrimination has been questioned. Even worse is the fear that Disability Standards will be used to lower the threshold of rights adopted by the DDA. The DDA makes it unlawful to contravene Disability Standards[89] and makes it clear that once a Standard is created, the rules about discrimination in the DDA no longer apply.[90] This means that once a Disability Standard becomes law, complaints of disability discrimination in the area covered by the Standards will be barred.
On the other hand, in the area of transport — the only area in which Disability Standards have been finalised — there is an acceptance of the content and the process of time over which all public transport will be made accessible. The Transport Standards[91] were negotiated between the community, government and industry representatives. They were endorsed by Transport Ministers as long ago as 1996, and have been subjected to an exhaustive Regulation Impact Statement.[92] Federal Cabinet finally approved the Transport Standards in October 2000.[93] However, before the Transport Standards were laid before Parliament (as part of the law-making process), the government sought an amendment to the DDA to allow for HREOC to be able to grant appropriate temporary exemptions from the Disability Standards. The ability to grant exemptions from these particular Disability Standards is an essential part of the Standards’ implementation process, and is an extension of HREOC’s current power to grant exemptions from provisions of the DDA. The Disability Discrimination Amendment Act 2002 (Cth) ‘provides that the Commission must consult a body prescribed in the Regulations before granting an exemption from the Disability Standards. The body prescribed for that purpose will be the National Transport Secretariat’.[94] The Attorney-General has announced that the Standards will come into effect when the legislation is in place.[95]
Under s 67(1)(k) of the DDA 1992 (Cth), HREOC may prepare and publish Guidelines, also known as ‘Advisory Notes’, to improve the public’s understanding of rights and obligations under the Act. Although HREOC has drafted a number of Advisory Notes, their utility is quite limited and potentially problematic. As DDA Guidelines have no authoritative status, following them will provide no defence against a complaint of disability discrimination. Nonetheless, where Guidelines are in place, failure to comply with them may result in unlawful conduct under the DDA. Given that Guidelines are the only mechanism in the DDA that are completely ‘top down’, it is hardly surprising that they have not played a major role in addressing fundamental inequality in society.
HREOC has the power to undertake a Public Inquiry when a number of individual complaints deal with the same topic, where the Attorney-General considers the matter to be of public importance, or where, in the context of an individual complaint (and with the consent of the parties) this would be a better way of becoming informed about all the issues in the case.[96] Conducting Public Inquiries is the responsibility of the state and cannot take place without the formal involvement of HREOC. However, the beauty of the way in which the Public Inquiry process has developed is that it can involve the community informally in the process of dealing with systemic discrimination. In other words, the public inquiry mechanism straddles both the second and the third dimensions of operationalising the human rights of people with disabilities.
The public inquiry process enables broad community participation in discussion of important policy issues, and has been used as an inexpensive mechanism to engage the community in the elimination of systemic discrimination. The format of a Public Inquiry varies depending on the issues raised and the resources available. It will certainly involve submissions from those interested in the matter and may involve a hearing, a face-to-face meeting, a public forum or use of the Internet. The Inquiry Commissioner may produce an analysis of the issues presented in submissions and any other investigation or research conducted for the information of, and possible comment by, the parties and other interested parties. After further consultation, a draft decision may be circulated for comment and finally public notification of the resolution of the dispute will be given, subject to the exclusion of any matters the parties have agreed will remain confidential.
The public inquiry strategy has been used to resolve many issues, including those related to the captioning of movies, and interference caused to hearing aids by mobile phones. The public inquiry process results in greater depth of understanding and in the capacity to deal with a broader range of issues than those directly raised by the complainant. The process takes the onus off the individual or organisation which lodged the complaint, and reduces the risk that the complainant could end up paying court costs. Further, the public inquiry process has the potential to effect systemic change.
One example of the power of the public inquiry to effect real change should suffice to demonstrate the role of this mechanism in the realisation of rights for people with disabilities. An Inquiry into access to polling booths for people with disabilities was conducted after a complaint was made to HREOC alleging disability discrimination in the 1999 Newcastle local government elections. The complainant alleged that her mother, who then walked with the aid of crutches, and her father, who was partially deaf and blind, had found it extremely difficult to access their local polling booth. After trying two booths, they waited in their car for an electoral officer to bring voting slips to them. After consultation with the parties, it was decided that the matter should proceed by way of a public inquiry. Given the significance of the issue for citizenship of people with disabilities, HREOC broadened the inquiry to examine the conduct not only of the specific NSW local government election (administered by the State Electoral Commission) but also the conduct of NSW State government elections (also administered by the State Electoral Commission) and Commonwealth elections (administered by the Australian Electoral Commission). In May 2000, it was announced that the outcome of the Inquiry was an agreement between the Electoral Council of Australia — of which all Electoral Commissions are members — and HREOC to develop national standards for polling booths to improve access for people with disabilities.[97] To facilitate this outcome, a committee, including the Commission and community representatives, was established by the Australian Electoral Council to develop a standard definition for access and to set benchmarks for its achievement over a period of several years.
Where the state is proactive and takes its role as protector of human rights seriously, an enormous amount can be achieved. However, we must again be wary of being too optimistic. While Disability Standards have the potential to improve the position of people with disabilities, they also have the potential to undermine the objects of the DDA. Public Inquiries have emerged as a leading strategy for the state to facilitate equality, but the limitation of HREOC’s resources will limit their effectiveness. However, it is clear that the second dimension of human rights strategy has enormous potential to improve the position of people with disabilities as rights-bearers.
Unless the broad community is involved in promoting equality and removing discrimination against people with disabilities, the realisation of rights will be short-lived. The DDA recognises the importance of involving every member of society in the process of changing entrenched inequality and in realising the rights of people with disabilities. Once the process of removing discrimination is owned not just by the people directly involved with disability, and not just by the state, but by the whole community, the deep-seated prejudice and systematic exclusion of people with disabilities can be addressed. In a truly radical move, the founders of the DDA included a strategy for direct public involvement in responding to disability discrimination. Although the notion of ‘Action Plans’ is not new, the DDA is unique in including Action Plans as a strategy for the realisation of the rights of an oppressed group. But what is even more surprising than the state planning a three-dimensional approach to operationalising the human rights of people with disabilities, and including Action Plans as the communal dimension, is the development of voluntary industry codes of conduct. Voluntary codes have sprung up as a result of discussion with the HREOC or as a result of acknowledging that including people with disabilities is not just in the interests of justice and human rights but is also in the interests of industry and the community.
Action Plans are documents voluntarily developed by ‘service providers’, which lay out the process by which the organisation proposes, over time, to eliminate practices discriminating against people with disabilities. An Action Plan may then be lodged with HREOC.[98] There are presently 223 Action Plans that have been lodged with HREOC, 160 of which are available on HREOC’s web site.[99] Action Plans complement the anti-discrimination provision in the DDA which makes it unlawful to discriminate in the provision of goods, services or facilities against people on the basis that they have, or may have, a disability.
Action Plans tackle disability discrimination in a different way to traditional anti-discrimination provisions, and incorporate a strategy which is somewhat analogous to the strategy of affirmative action which is used to redress sex discrimination. Instead of waiting for a complaint to be made against a service provider, the process of developing Action Plans allows for a better understanding of how practices may discriminate and the steps that can be taken, over time if necessary, to redress inequality. On the other hand, s 11(d) of the DDA
1992 (Cth) specifies that the lodgement of an Action Plan with HREOC under
s 64 is one of the factors to be taken into account when determining whether redressing the discrimination would constitute an ‘unjustifiable hardship’ to the organisation.[100]
Any ‘service provider’ can have an Action Plan relating to the services it provides. Service providers include anyone who provides services, offers goods or makes facilities available to the public free or at a cost.[101] It applies to Commonwealth and State government departments, Commonwealth public authorities (such as Australia Post), State instrumentalities (such as public transport authorities), local government organisations funded wholly or in part by the government, and individuals. Examples of service providers include: banks and other providers of financial services; retailers — from large department stores to the corner shop; cinemas, nightclubs and other providers of entertainment; travel agents, airlines and hotels; telecommunication enterprises; carpenters and others who sell their skills or trade; local libraries, swimming pools or other municipal services; schools; religious organisations; childcare centres; neighbourhood and community centres; and medical and legal practitioners.
The benefits of developing Action Plans flow to the organisation, to people with disabilities and to the community. There are a number of incentives to encourage organisations to develop Action Plans. These range from minimising the risk of having a complaint lodged against the organisation (as it is much less likely that a complaint of discrimination will be founded where an organisation has taken action to avoid inadvertent discrimination), to improving the organisation’s chances of receiving government funding (assuming that government funding is made in some way contingent on development of and compliance with an Action Plan). Another benefit of an Action Plan is that it will make a service available to a greater number of people in the community: given that the number of people with disabilities in Australia is approximately 19 per cent of the population,[102] removing barriers to an organisation may have a dramatic impact on the demand for its services.
Perhaps the most important strategy for realising rights of people with disabilities has arisen in response to the DDA even though it is not provided for by the Act. While Action Plans relate to specific organisations, rules at an industry level can be seen as voluntary industry codes of conduct, although they not designated as such. The example below demonstrates the interconnectedness of all aspects of the DDA, indicating a level of synergy which was not an expected outcome of the various strategies to address inequality contained in the DDA. Voluntary industry codes of conduct are also being developed in areas including e-commerce, banking and building.
An example relating to the captioning of movies demonstrates the potential of voluntary industry codes of conduct. A complainant, who was unable to enjoy movies with his family because he could not hear the soundtrack, lodged a complaint under the DDA against a cinema. HREOC recognised that the complaint involved questions of broad policy, and that the issue applied to film exhibitors across Australia, not just to the complainant’s local cinema. With the consent of the parties to the complaint, it was agreed that the matter would be dealt with by way of a public inquiry. A Notice of Inquiry was published and numerous submissions were received from people and organisations in the film industry and throughout the deaf and hearing impairment communities. As a result, the Captioned Movies Forum, which brought together representatives of film distributors and exhibitors, the deaf and hearing impaired communities and the Australian Caption Centre, was established. This led to a trial of open-captioned movies being run in Sydney and Melbourne. After further negotiations, the three major movie exhibitors in Australia — Greater Union, Hoyts and Village Cinemas — agreed to show open-captioned movies at selected cinemas throughout Australia, beginning on 9 April 2001. A committee has been established to promote and coordinate captioning, and to monitor technological developments that may require finetuning to meet the needs of all members of the community.
The success of this Inquiry was based on the cooperative approach taken by the various participants in the process, who were more concerned to find a practical solution to the problem than to score points in an adversarial setting. While there are no formal rules governing the process of captioning movies, the manner in which major players in the industry (with their community representatives) are continuing to operate is by way of a commitment to providing access to movies to all members of the community. The informal voluntary industry code of conduct has not yet embraced some of the other access issues, but it is hard to imagine these issues not being addressed in due course.
Allowing the community to recognise the problems of inclusion, and allowing ordinary citizens to work creatively to prevent exclusion, is the ideal operationalisation of human rights in the third dimension. In this situation, people with disabilities become partners with members of the community at large, which sees the inequality of people with disabilities as its problem as well as the problem of people with disabilities themselves.
The position of people with disabilities in Australia remains serious. Every day children are excluded from school, adults are denied work, people are made homeless, and many live in extreme poverty due to their disability. Changes brought about by legislation are very slow and do not go far enough to ensure that people with disabilities are respected or even accepted members of the community. Human rights abuses and inequalities remain endemic and many people with disabilities are too oppressed to even challenge the worst experiences of discrimination. At present, there is even a threat to the minimal financial support that the state provides. Before it can be said that Australia takes the rights of people with disabilities seriously, at least some of these issues need to be addressed.
The lived experience of people with disabilities must be borne in mind in the assessment of legislative schemes designed to protect human rights. We have argued that the DDA provides for the possibility that all members of society play a role in removing barriers to inclusion. We have further argued that in some ways the Act has been successful beyond expectation. This is particularly the case where the initiatives of industry or social groups are engaged with the challenge of breaking the chain of exclusion. However, significant as these matters appear, they barely touch the problem.
The challenge of operationalising human rights begins with the recognition that people with disabilities are rights-bearers who are entitled to all the benefits that society has to offer. People with disabilities must also believe in their entitlements and play a role in educating the public about the barriers to participation. The state has a role to play, not just in declaring the equal rights of people with disabilities, but also in engaging in the struggle to isolate systemic inequality and finding the means to overcome it. Given its power to regulate behaviour, the state is a necessary partner in the realisation of human rights. However, cooperation between the state and people with disabilities can only go so far. Permanent change will only come about when the whole community owns the problem and finds structural inequality to be unacceptable. Public engagement with the rights of people with disabilities, and social values which celebrate diversity, are required for social action to be based on human rights. What is needed is for people with disabilities, the state and the community to work together. The Australian DDA provides the tools which are needed for the full inclusion of people with disabilities in society. It is now up to every member of the community to ensure that the human rights of people with disabilities are realised.
[∗] BA, LLB (Monash), LLM (London); Barrister and Solicitor of the Supreme Court of Victoria; Senior Lecturer, La Trobe Law, La Trobe University.
[†] BA (UNSW), LLB (Melb); Senior Lecturer, Faculty of Law, University of New South Wales.[]
[1] New South Wales Department for Women, Reclaiming Our Rights (1996) 19.
[2] See Human Rights and Equal Opportunity Commission, Statistics: Aboriginal and Torres Strait Islander Peoples <http://www.hreoc.gov.au/social_justice/statistics/index> at 15 July 2002.
[3] See Australian Institute of Health and Welfare, Australia’s Welfare 1997: Services and Assistance (1997) 304. It is difficult to obtain accurate statistics relating to the incidence of disability in the indigenous population. The National Centre for Aboriginal and Torres Strait Islander Statistics (a centre within the Australian Bureau of Statistics) is currently engaged in a research project to obtain data on disability among indigenous people. For further information see <http://www.abs.gov.au> .
[4] Jerome Bickenbach, ‘Voluntary Disabilities and Everyday Illnesses’ in Marcia Rioux and Michael Bach (eds), Disability Is Not Measles: New Research Paradigms in Disability (1994) 109; Tom Shakespeare, ‘What Is a Disabled Person?’ in Melinda Jones and Lee Ann Basser Marks (eds), Disability, Divers-ability and Legal Change (1999) (56 International Studies in Human Rights) 25.
[5] Marcia Rioux, ‘Towards a Concept of Equality of Well-Being: Overcoming the Social and Legal Construction of Inequality’ (1994) 7 Canadian Journal of Law and Jurisprudence 127.
[6] Rosemary Thomson, Extraordinary Bodies: Figuring Physical Disability in American Culture and Literature (1997); Lennard J Davis, ‘The Rule of Normalcy: Politics and Disability in the USA [United States of Ability]’ in Melinda Jones and Lee Ann Basser Marks (eds), Disability, Divers-ability and Legal Change (1999) (56 International Studies in Human Rights) 35; Jenny Morris, Pride against Prejudice: A Personal Politics of Disability (1991).
[7] Helen Deutsch and Felicity Nussbaum (eds), ‘DEFECTS’: Engendering the Modern Body (2000); David Mitchell and Sharon Snyder, Narrative Prosthesis: Disability and the Dependencies of Discourse (2000).
[8] Paul Abberley, ‘Work, Utopia and Impairment’ in Len Barton (ed), Disability and Society: Emerging Issues and Insights (1996) 61, 70; Michael Oliver, The Politics of Disablement (1990) 69–70.
[10] Victoria v Commonwealth (1996) 187 CLR 416 (‘Industrial Relations Act Case’).
[11] See, eg, Universal Declaration of Human Rights, GA Res 217A, UN GAOR, 3rd sess, [71], UN Doc A/810 (1948); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). Australia has recognised the precarious position of people with disabilities by supporting the creation of informal human rights instruments including: Declaration on the Rights of Disabled Persons, GA Res 3447, UN GAOR, 30th sess, Supp No 34, [88], UN Doc A/10034 (1975); Declaration on the Rights of Mentally Retarded Persons, GA Res 2856, UN GAOR, 26th sess, Supp No 29, [93], UN Doc A/8429 (1971); Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, GA Res 48/96, UN GAOR, 48th sess, Supp No 49, [202], UN Doc A/48/49 (1993). These and other instruments relevant to people with disabilities are reproduced in Theresia Degener and Yolan Koster-Dreese (eds), Human Rights and Disabled Persons: Essays and Relevant Human Rights Instruments (1995) 159ff. For a brief discussion of the role of international law, see Melinda Jones and Lee Ann Basser Marks, ‘Law and People with Disabilities’ in Neil Smesler and Paul Baltes (eds), International Encyclopedia of the Social and Behavioral Sciences (2001) vol 12, 8475, 8478–9.
[12] See, eg, Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; Industrial Relations Act Case (1996) 187 CLR 416.
[13] Pub L No 101-336, 104 Stat 327 (1990); 42 USC §§ 12 101–213 (1995).
[14] Leslie Francis and Anita Silvers, ‘Introduction — Achieving the Right to Live in the World: Americans with Disabilities and the Civil Rights Tradition’ in Leslie Francis and Anita Silvers (eds), Americans with Disabilities: Exploring the Implications of the Law for Individuals and Institutions (2000) xii, xx.
[15] Commonwealth, Parliamentary Debates, House of Representatives, 26 May 1992, 2755 (Brian Howe, Minister for Health, Housing and Community Services).
[16] DDA 1992 (Cth) s 3.
[17] For a more detailed comparison of the ADA with the DDA, see Melinda Jones and Lee Ann Basser Marks, ‘A Bright New Era of Equality, Independence and Freedom: Casting an Australian Gaze on the ADA’ in Leslie Francis and Anita Silvers (eds), Americans with Disabilities: Exploring the Implications of the Law for Individuals and Institutions (2000) 371.
[18] The authors have written two other articles which discuss aspects of the DDA: Melinda Jones and Lee Ann Basser Marks, ‘Disability, Rights and Law in Australia’ in Melinda Jones and Lee Ann Basser Marks (eds), Disability, Divers-ability and Legal Change (1999) (56 International Studies in Human Rights) 189; Melinda Jones and Lee Ann Basser Marks, ‘The Limitations on the Use of Law to Promote Rights: An Assessment of the Disability Discrimination Act 1992’ in Marge Hauritz, Charles Sampford and Sophie Blencowe (eds), Justice for People with Disabilities (1998) 69.
[21] Jerome Bickenbach demonstrates that these are significant limitations in both Canadian and US law: see Bickenbach, above n 5, 115.
[23] Anti-Discrimination Act 1977 (NSW).
[24] See World Health Organization, International Classification of Functioning, Disability and Health (2001); Ros Madden and Nicola Fortune, ‘The Development and Use of the WHO Classification of Disability’ (Unpublished paper presented at the Conference on Constructing Law and Disability, Canberra, 4–5 December 2000).
[25] Susan Wendell, The Rejected Body: Feminist Philosophical Reflections on Disability (1996); Lennard Davis, Enforcing Normalcy: Disability, Deafness & the Body (1995).
[26] For a discussion of the various models of disability, see Jones and Basser Marks, ‘Law and People with Disabilities’, above n 12, 8475–6. Mike Oliver, Len Barton and Vic Finkelstein are the founders of the social model, and any of their writings will provide an insight into the social model. Equally, see the works cited above nn 5–9.
[27] The US experience well illustrates the dangers of a more targeted definition.
[28] Jones and Basser Marks, ‘A Bright New Era of Equality, Independence and Freedom’,
above n 19, 375.
[29] Ibid 376.
[30] In situations where discrimination is only one of a number of reasons for the taking of an action, the action may nonetheless constitute unlawful discrimination. Discrimination need not be the dominant or substantial reason for the action: DDA 1992 (Cth) s 10.
[31] [1991] HCA 49; (1991) 173 CLR 349.
[32] Ibid 359–60 (Mason CJ and Gaudron J), 382 (Deane J).
[34] Ibid 79 129. See also Commonwealth v Humphries [1998] EOC 92-951.
[35] [2000] FCA 658; [2000] EOC 93-081 (‘Hills Grammar Case’).
[36] See below n 49 and accompanying text.
[37] The criteria for eligibility for the Disabled Pension are available at Centrelink, How Do I Qualify for a Disability Support Pension? (2001) <http://www.centrelink.gov.au/internet/internet.nsf/
payments/qual_how_dsp.htm> at 15 July 2002.
[38] DDA 1992 (Cth) s 5(1). See, eg, Adams v Arizona Bay Pty Ltd [1997] EOC 92-885; Hills Grammar Case [2000] FCA 658; [2000] EOC 93-081.
[40] Section 6.
[43] Section 5(1). See, eg, Adams v Arizona Bay Pty Ltd [1997] EOC 92-885; Hills Grammar Case [2000] FCA 658; [2000] EOC 93-081.
[46] McNeill v Commonwealth [1995] HREOCA 9; [1995] EOC 92-714.
[47] See, eg, Hills Grammar Case [2000] FCA 658; [2000] EOC 93-081, in which the school was expected to make adjustments to the school environment and to provide additional educational support to enable a student with disabilities to enrol in the school. The failure to do so led to a finding against the school on a complaint of discrimination.
[49] DDA 1992 (Cth) ss 35–40. Adams v Arizona Bay Pty Ltd [1997] EOC 92-885 illustrates the operation of these provisions. In this case, a successful claim for disability discrimination was made where there was harassment in the provision of taxi cab services through deliberate and extended delays in providing the service as well as verbal abuse from the proprietor of the taxi company when the customer with disabilities complained of the delays. See also
McNeill v Commonwealth [1995] HREOCA 9; [1995] EOC 92-714.
[52] In Eyden v Commonwealth of Australia [1999] EOC 93-000, the complainant was not told that colour perception deficiency was a complete bar to employment in the Australian Protective Services. The complainant had to go to considerable effort and expense to attend the interview. Initially he was offered the job, but the offer was withdrawn when a medical test showed that he had a colour perception deficiency. HREOC found that there was discrimination at both the pre-interview stage and in deciding not to give the claimant the job, and awarded damages including special damages for shock, hurt and disappointment and the cost of the airfare to attend the interview.
[53] [2000] EOC 93-041. See also Maguire v Sydney Organising Committee for the Olympic Games [2001] EOC 93-123; [2001] EOC 93-124.
[54] The Minister may formulate disability standards with respect to employment, education, accommodation, provision of public transport and the administration of Commonwealth laws and programs: DDA 1992 (Cth) s 31.
[57] See, eg, ss 23 (‘Access to premises’), 24 (‘Goods, services and facilities’), 25 (‘Accommodation’), 27 (‘Clubs and associations’), 28 (‘Sport’).
[60] Ibid 75 220.
[61] Ibid. Scott v Telstra Corp Ltd [1995] EOC 92-717 provides a good example of the nature of the balancing act. In that case, the significant financial burden imposed upon the telecommunications provider did not constitute unjustifiable hardship given the budget of the service provider and the benefit to users of teletypewriter services. Similarly, in Cocks v Queensland [1994] QADT 3; [1994] EOC 92-612, it was held that the financial cost of making the Brisbane Convention and Exhibition Centre accessible did not constitute an unjustifiable hardship given that an estimated 315 400 people who could not use the stairs would be able to access the building with dignity.
[63] This limitation, while so important for the effective inclusion of students with disabilities in education institutions, has led to a bizarre determination of the ground of discrimination in the recent Federal Court decision of Purvis v NSW (Department of Education & Training) [2002] FCA 503; FCAFC 106 (Unreported, Spender, Gyles and Conti JJ, 24 April 2002) in which the Full Court failed to draw a distinction between the complainant’s disability and the behaviour that was directly related to the disability, holding that the student was expelled because of his behaviour and that this did not constitute discrimination on the ground of disability.
[64] DDA 1992 (Cth) s 15(4)(a).
[65] See, eg, X v Commonwealth (1999) 200 CLR 177, in which a man was dismissed from the Australian Defence Force (‘ADF’) because of his HIV status. The ADF was subsequently exempted from the operation of the DDA.
[67] Ibid.
[68] Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOCA’) s 46P(2)(a).
[69] Section 46P(2)(c).
[70] Section 46P(2)(b). For initiation of complaints generally, see DDA 1992 (Cth) s 46P.
[71] Section 46PB.
[72] Section 46PH(1)(i).
[73] See, eg, Hilary Astor, Dispute Resolution in Australia (2nd ed, 2002); Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 143–70.
[74] HREOCA s 46PH(1) lists a number of grounds on which the President may terminate a complaint.
[75] Section 46PO. The application must be made within 28 days of the notice of termination of the complaint. Previously, HREOC had the power to hear and determine complaints granted through the three discrimination statutes (the RDA, SDA and DDA). However, the High Court found this power unconstitutional in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245. As a consequence, the Human Rights Legislation Amendment Act 1995 (Cth) was introduced and HREOC can no longer conduct hearings. For further discussion, see Susan Roberts and Ronni Redman, ‘Full Service Handling of Human Rights Complaints’ [2000] LawIJV 118; (2000) 74(3) Law Institute Journal 57; Beth Gaze, ‘The Costs of Equal Opportunity’ [2000] AltLawJl 46; (2000) 25(3) Alternative Law Journal 125.
[76] HREOCA s 46O(3).
[77] Section 46PP.
[78] Section 46PR.
[79] Section 46PQ.
[80] Section 46PO(4).
[81] The Attorney-General has the power to grant legal aid in a DDA matter: HREOCA 1986 (Cth)
s 46PU. In practice, however, this is unlikely to occur.
[82] DDA 1992 (Cth) s 3(b), (c).
[83] The Commonwealth Attorney-General is the Minister responsible in Parliament for HREOC.
[84] DDA 1992 (Cth) s 31. The Attorney-General can formulate Disability Standards in a number of areas covered by the DDA, including education, employment, public transport, accommodation and access to public premises.
[85] Commonwealth, Parliamentary Debates, House of Representatives, 26 May 1992, 2755 (Brian Howe, Minister for Health, Housing and Community Services).
[86] The Building Code of Australia is a national code which is administered at a State and Territory level. It is a statement of the performance and technical requirements relevant to the design and construction of buildings and other related structures. For an overview of the content and application of the Building Code of Australia, see Australian Building Codes Board, Access <http://www.abcb.gov.au/content/access> at 15 July 2002.
[87] DDA Standards Project, ‘The Role of the DDA Standards Project in Developing Standards’ <http://members.ozemail.com.au/~ddasp/DDAStandards7.htm> at 25 June 2002.
[88] See, eg, NSW Disability Discrimination Legal Centre, Dirty Deeds Done Dirt Cheap — Justice in Employment (1998) 9.
[89] DDA 1992 (Cth) s 32.
[90] Section 34.
[91] Attorney-General’s Department, Disability Standards for Accessible Public Transport 2001 (2001) <http://www.law.gov.au/DSFAPT/ASFAPT.pdf> at 15 July 2002.
[92] Attorney-General’s Department, ‘Regulation Impact Statement on Draft Disability Standards for Accessible Public Transport’ (1999) <http://www.law.gov.au/publications/regdisabilityhtm/
regdisability.htm> at 15 July 2002.
[93] Daryl Williams (Attorney-General), John Anderson (Minister for Transport and Regional Services) and Jocelyn Newman (Minister for Family and Community Services), ‘Improved Transport Services for People with Disabilities’ (Press Release, 11 October 2000).
[94] Daryl Williams (Attorney-General), ‘Accessible Public Transport’ (Press Release, 14 February 2002).
[95] Ibid. The Disability Discrimination Amendment Act 2002 (Cth) was assented to on 15 July 2002.
[96] DDA 1992 (Cth) s 67.
[97] HREOC, ‘Paving the Way to Electoral Equality: New Access Standards for Polling Booths’ (Press Release, 15 May 2000) <http://www.hreoc.gov.au/media_releases/2000/00_8.html>
at 15 July 2002.
[98] DDA 1992 (Cth) s 64.
[99] See HREOC, Action Plans and Action Plan Guides <http://www.hreoc.gov.au/disability_rights/
action_plans/index.html> at 15 July 2002.
[100] DDA 1992 (Cth) s 11.
[101] Section 59.
[102] Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings, ABS Catalogue No 4430.0 (1998).
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