Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]

DISABILITY DISCRIMINATION AMENDMENT BILL 2001

1998-1999-2000-2001

THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA

HOUSE OF REPRESENTATIVES

DISABILITY DISCRIMINATION AMENDMENT BILL 2001

EXPLANATORY MEMORANDUM

(Circulated by authority of the
Hon. Daryl Williams AM QC MP,
Attorney-General)

DISABILTY DISCRIMINATION AMENDMENT BILL 2001

OUTLINE

This Bill amends the Disability Discrimination Act 1992 (DDA) to allow the Human Rights and Equal Opportunity Commission (HREOC) to grant exemptions from disability standards dealing with public transportation services and facilities, including, for example, on grounds of unjustifiable hardship. The ability to grant appropriate up-front exemptions from these disability standards is an essential element in providing greater certainty to all those affected by the disability standards, including public transport providers and operators.

The DDA provides the Attorney-General with the power to formulate disability standards in relation to certain areas, including for the provision of public transportation services and facilities to a person with a disability. Disability standards are designed to spell out in greater detail rights and obligations under the DDA. While a breach of disability standards may give rise to a complaint under the DDA, compliance with a disability standard is a defence to a complaint under its general provisions.

Section 55 of the DDA gives HREOC the ability to grant an exemption, or further exemption, from the operation of a provision of Division 1 or 2 of the DDA, on such terms and conditions as are specified in the exemption instrument, for a period not exceeding 5 years. However, this ability does not currently extend to exemptions from disability standards. The Attorney-General proposes to formulate disability standards dealing with public transportation services and facilities and table them in both Houses of Parliament as soon as the proposed amendments to the DDA are passed.

The amendments to the DDA will allow for applications to be made to HREOC for the granting of an up-front exemption, for example, on the basis that it may not be possible to comply fully with disability standards for financial, technical or other reasons. An exemption may be granted from those particular requirements under the terms and conditions, and for the period specified, in the exemption instrument. An exemption will protect an operator or provider from the operation of section 32 of the DDA in respect of a complaint that might otherwise arise about a breach of the relevant disability standards.

This Bill also provides that HREOC must take into account the advice of a body prescribed in the Regulations before granting an exemption from disability standards dealing with public transportation services and facilities. The body prescribed for that purpose will be the National Transport Secretariat.

Disability standards dealing with public transportation services and facilities will provide a balanced approach, seeking to eliminate, as far as possible, discrimination against people with disabilities, while ensuring that this does not place undue burdens on industry.

FINANCIAL IMPACT

The amendments are expected to have little, if any, financial impact.

NOTES ON CLAUSES

Clause 1: Short Title

2. This is a formal item, which specifies that the amending Bill, when enacted, will be known as the Disability Discrimination Amendment Act 2001.

Clause 2: Commencement

3. Subclauses 2(1) and 2(2) provide that the Act will commence by Proclamation or 6 months after the Royal Assent, if no date is proclaimed. Some flexibility about the day of commencement is required so that new regulations can be promulgated specifying the National Transport Secretariat as a body that must be consulted by HREOC when considering an exemption from disability standards dealing with public transportation services and facilities. It is expected that the new regulations will be made with effect on commencement of the Act.

Clause 3: Schedule(s)

4. This clause explains that the items in the Schedule to the Bill amend the Act specified in the Schedule, that is, the Disability Discrimination Act 1992.

Schedule 1 – Exemption from disability standards
Disability Discrimination Act 1992
Item 1 – Subsection 31(4)

5. This item corrects a drafting error in subsection 31(4) of the DDA by replacing two references to guidelines with references to disability standards. The subsection is intended to deal with disability standards rather than guidelines.

Item 2 – Section 33

6. Section 33 of the DDA currently does not allow for exemptions to be granted from disability standards. This item repeals and replaces section 33 to allow for the effective operation of the amended section 55, which extends HREOC’s power to grant exemptions.

Item 3 – After subsection 55(1)

7. This item extends HREOC’s power to grant exemptions from the provisions of the DDA to include disability standards dealing with public transportation services and facilities. Section 32 provides that it is unlawful to contravene a disability standard. The insertion of subsection (1A) allows HREOC to grant an exemption, on application, from the operation of section 32, as specified in the instrument granting the exemption.

8. The insertion of subsection (1B) limits the exemption from the operation of section 32 to an exemption in relation to the requirements of disability standards dealing with public transportation services and facilities, which are formulated by the Attorney-General under section 31(1)(d) of the DDA.

9. The insertion of subsection (1C) has the effect of requiring HREOC to take into account the advice of a body prescribed in the regulations before granting an exemption. The National Transport Secretariat will be prescribed by regulation for the purposes of disability standards dealing with public transportation services and facilities.

10. The insertion of subsection (1D) ensures that HREOC can consult any other body or person it considers appropriate to consult before granting an exemption in relation to the requirements of disability standards dealing with public transportation services and facilities. This will allow HREOC to consult a broad range of interests, as well as seeking further technical advice, where necessary, in addition to the advice of the National Transport Secretariat.

Item 4 – Subsection 55(2)

11. This item ensures that the extended exemption power provided in amended section 55 operates effectively for exemptions in relation to the requirements of disability standards dealing with public transportation services and facilities, including for a grant of a further exemption.

Item 5 – Subsection 55 (3)

12. This item ensures that the extended exemption power provided in amended section 55 operates effectively in relation to disability standards dealing with public transportation services and facilities. As with the granting of an exemption, or further exemption, from the provisions of the DDA, the terms and conditions and period of an exemption in relation to part or all disability standards are as specified in the instrument granting the exemption.

Item 6 – After subsection 132(1)

13. This item empowers the making of regulations to prescribe a body that HREOC must consult in considering an application for an exemption from disability standards dealing with public transportation services and facilities, as required by item 3.