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Commission submission (MS Word) - Australian Human Rights

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Commission submission (MS Word) - Australian Human Rights

     Australian

    Human Rights

    Commission

    everyone, everywhere, everyday

The Disability Discrimination

    and Other Human Rights Legislation Amendment Bill 2008

    …………………………

    Australian Human Rights Commission Submission to the Senate Committee on Legal and Constitutional Affairs

    15 January 2009

     Human Rights and Level 8 Piccadilly Tower GPO Box 5218 General enquiries 1300 369 711

    Equal Opportunity 133 Castlereagh Street Sydney NSW 2001 Complaints infoline 1300 656 419

    Commission Sydney NSW 2001 TTY 1800 620 241

    ABN 47 996 232 602 www.humanrights.gov.au

    Australian Human Rights Commission

     DDA Amendment Bill 2008 12 January 2009 Table of Contents

    1 Introduction .................................................................................................... 3 2 Definitions of discrimination in the DDA ..................................................... 4 2.1 Definition of ‘discriminate’: sch 2, items 10-11 - s 4(1) ........................... 4 2.2 Direct disability discrimination: sch 2, item 17 s5 ................................ 5

    (a) The Bill’s proposed definition .................................................................... 5

    (b) Removing the ‘comparator’ ....................................................................... 6

    (c) A simplified test ......................................................................................... 7 2.3 Indirect discrimination: sch 2, item 17 s6 ............................................. 8

    (a) The Bill’s proposed definition .................................................................... 8

    (b) Simplification and harmonisation .............................................................. 9

    (c) Focus on disadvantage, not ‘ability to comply’ .......................................... 9

    (d) Problems with the focus on ‘ability to comply’ ......................................... 10

    (e) Alternative submission: defining ‘ability to comply’ ................................. 12 3 Reasonable adjustments ............................................................................. 12 3.1 Complexity and uncertain operation of the proposed model of

    reasonable adjustments .......................................................................... 13 3.2 The Commission’s proposed model for reasonable adjustments ....... 13

    (a) The Commission’s model gives effect to the intention of the Bill ............ 14 3.3 Provide examples of reasonable adjustments ....................................... 15 3.4 Alternative submission: technical changes ........................................... 15

    (a) Definition of reasonable adjustments ...................................................... 15

    (b) Wording of s 6(2)(b) ................................................................................ 16 4 Discrimination in relation to associates: sch 2, item 17 s 7 .................. 17 5 Discrimination in relation to carers, assistants, assistance animals and

    disability aids: sch 2, item 17 ss 8 & 9 .................................................... 17 5.1 Include guide dogs ................................................................................... 17 6 Employment agencies: sch 2, item 40 s 21(2) ........................................ 18 7 Contract workers: sch 2, item 40 s 4 ....................................................... 18 8 Requests for information: sch 2, item 60 s 30 ........................................ 19 9 ‘Best practice’ options for reform of unlawful discrimination laws

    identified by the 2008 SDA Report ............................................................. 20 10 New legal name for the Australian Human Rights Commission .............. 20 11 Implement additional HREOC Act recommendations made in the 2008

    SDA Report ................................................................... 错误;未定义书签。20 Appendix - List of recommendations.................................................................... 21

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    Australian Human Rights Commission

     DDA Amendment Bill 2008 12 January 2009

    1 Introduction

    1. The Australian Human Rights and Commission (the Commission) makes this

    submission to the Standing Committee on Legal and Constitutional Affairs in its

    Inquiry into the Disability Discrimination and Other Human Rights Legislation

    Amendment Bill 2008 (the Bill).

    2. The Commission is Australia‟s national human rights institution and is

    responsible for, amongst other things, the administration of the Human Rights

    and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) and the 1Disability Discrimination Act 1992 (Cth) (DDA).

    3. The Commission strongly supports the general aims of the amendments to the

    DDA and the HREOC Act proposed by the Bill: namely to improve the

    effectiveness of both laws in promoting and protecting human rights. 4. The Commission particularly welcomes the following proposed changes:

    ; the removal of the dominant reason test in the Age Discrimination Act 2004

    (Cth) (see sch 1, item 1, proposed s 16);

    ; the statutory recognition of the United Nations Convention on the Rights of 2Persons with Disabilities (Disabilities Convention) in the DDA (see sch 2,

    items 4 and 20);

    ; clarification that the DDA applies to associates and discrimination in relation

    to carers, assistants, assistance animals and disability aids in the same way

    as it applies in relation to having a disability (see sch 2, item 17, proposed

    ss 7-9);

    ; the change of the Commission‟s legal name to the Australian Human Rights

    Commission (see sch 3, pt 1); and

    ; technical changes to provisions concerning the Commission‟s complaint

    handling functions (see sch 3, pt 2).

    5. However, the Commission has a number of particular concerns about the

    proposed changes to the DDA. The most significant of these concerns relate to:

    ; The definition of direct discrimination. The Commission

    recommends that the definition of direct discrimination be further

    simplified to remove the explicit requirement for a „comparator‟.

    ; The definition of indirect discrimination. The Commission

    recommends that the definition of indirect discrimination be

1 Sections 11 and 31 of the HREOC Act set out the Commission‟s functions relating to unlawful

    discrimination and human rights and equal opportunity in employment. The Commission also has functions under the Commonwealth Sex Discrimination Act 1984 (Cth), Racial Discrimination Act 1975

    (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 2004 (Cth). 2 Convention on the rights of persons with disabilities opened for signature 30/03/2007, U.N. Doc

    A/61/611 (entered into force 3 May 2008).

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     DDA Amendment Bill 2008 12 January 2009

    harmonised with the provision in the SDA to focus on disadvantage

    caused by a requirement or condition to persons with the aggrieved

    person‟s disability. An aggrieved person should not be required to

    show that they cannot comply with a requirement or condition.

    Alternatively, the proposed section should specify that where an

    aggrieved person is disadvantaged by a requirement or condition, this

    will be sufficient to make out an „inability to comply‟.

    ; The duty to provide reasonable adjustments. While the

    Commission strongly supports the express provision of the duty to

    provide reasonable adjustments, the proposed provisions in ss 5(2)

    and 6(2) are unnecessarily complicated and may be difficult to apply.

    The Commission proposes an alternative model to ensure that effect

    is given to the intention of the Bill to create an explicit positive duty to

    make reasonable adjustments.

    6. A number of other concerns with the proposed provisions are also raised below. 7. This Committee‟s recent inquiry into the operation of the Sex Discrimination Act

    1984 (Cth) (SDA) (the SDA Inquiry) and its Report on the effectiveness of the

    Commonwealth Sex Discrimination Act 1984 in eliminating sex discrimination

    and promoting gender equality (the 2008 SDA Report), highlighted a range of

    „best practice‟ options for reform of unlawful discrimination laws. The

    Commission submits that the Committee‟s recommendations in that report

    provide a very useful guide to changes that might also be made to the DDA and

    the HREOC Act. In addition to the changes proposed in the Bill which, with

    appropriate amendment, the Commission submits should be introduced as

    soon as possible, the Commission submits that there would be considerable

    value in government considering how the changes proposed by the 2008 SDA

    Report might be implemented for the DDA.

    2 Definitions of discrimination in the DDA

    2.1 Definition of discriminate: sch 2, items 10-11 - s 4(1)

    8. The Bill proposes that the definition of „discriminate‟ in s 4(1) of the DDA be

    amended so as to read: „discriminate has the meaning given by sections 5

    and 6‟. The Commission proposes a technical amendment to this definition to

    ensure that it operates as intended.

    9. Sections 5 and 6 contain the definitions of direct and indirect discrimination. 10. Proposed ss 7 and 8 operate to extend the application of the DDA to associates

    of people with disability as well as people who have a carer, assistance,

    assistance animal or disability aid „in the same way as it applies in relation to

    having a disability‟.

    11. The proposed Note to the definition of discriminate in s 4(1) is intended to

    clarify that the concept of discrimination is extended by ss 7 and 8. 12. In the Commission‟s view, it would be preferable to make this extension explicit

    in the definition of s 4(1), rather than leaving it as a matter for the Note.

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    Australian Human Rights Commission

     DDA Amendment Bill 2008 12 January 2009

    13. Notes do not form part of the Act itself. Some courts have held that they should 3not be taken into account for interpretation purposes at all; others have 4referenced notes only where the meaning of the section is unclear. In Dugan v 5Mirror Newspapers Ltd, Stephen J characterised notes as „at most only a quite

    minor aid, “a most unsure guide”‟.

    14. The Explanatory Memorandum to the Bill states that the object of the

    amendments to ss 7 and 8 is to address the discrepancy in the law after the 6Full Federal Court‟s decision in Queensland v Che Forest. That decision had

    the effect that the DDA does not necessarily apply to people who have a carer,

    assistance, assistance animal or disability aid in the same way as it applies in

    relation to having a disability.

    15. In the Commission‟s view, it is preferable to ensure that this intention is carried

    through into the definition in s 4(1). The Commission therefore recommends

    that the definition be changed to be of the following effect (with proposed

    additional words in italics):

    discriminate has the meaning given by sections 5 and 6 and as

    extended by sections 7 (associates) and 8 (carers, assistants,

    assistance animals and disability aids).

    Recommendation 1: To avoid potential uncertainty, the Commission

    recommends a reference to ss 7 and 8 be included in the definition of discriminate in s 4(1).

    2.2 Direct disability discrimination: sch 2, item 17 s5

    16. The Commission argues for a modification and simplification of the definition of

    direct discrimination proposed by the Bill.

    (a) The Bill’s proposed definition

    17. The proposed definition of direct discrimination will read as follows:

    5 Direct disability discrimination

    (1) For the purposes of this Act, a person (discriminator) discriminates against

    another person (the aggrieved person) on the ground of a disability of the

    aggrieved person if, because of the disability, the discriminator treats, or

    proposes to treat, the aggrieved person less favourably than the discriminator

    would treat a person without the disability in circumstances that are not

    materially different. (emphasis added)

     ….

3 Re Baldwin (1891) 12 LR (NSW) 128; Sanderson v Fotheringham (1885) 11 VLR 190; Wacando v

    Commonwealth (1981) 37 ALR 317, 237; Bradley v Commonwealth (1973) 1 ALR 241, 256 (Barwick

    CJ and Gibbs J). 4 Winkley v Paton (1943) 60 WN (NSW) 162, Joyce v Paton (1941) 58 WN (NSW) 88. See generally thD.Pearce and R. Geddes „Statutory Interpretation in Australia‟ (6 ed, 2006), 161-3. 5 (1979) 22 ALR 439, 447. 6 [2008] FCAFC 96.

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     DDA Amendment Bill 2008 12 January 2009

    (3) For the purposes of this section, circumstances are not materially different

    because of the fact that, because of the disability, the aggrieved person

    requires adjustments.

    18. The Commission‟s submissions in relation to s 5(2) relating to „reasonable

    adjustment‟ are discussed separately below.

    19. It can be seen that the definition of direct discrimination in s 5(1) includes an

    element of causation (the treatment must be „because of disability‟) and a

    comparative element (a comparison with a person in circumstances that are 7not materially different). An aggrieved person must prove both elements.

    (b) Removing the ‘comparator’

    20. The Commission submits that this Bill presents an opportunity to significantly

    improve the definition of direct discrimination by removing the explicit

    comparative element. The central issue in determining whether direct disability

    discrimination has occurred is whether a person‟s treatment was because of

    disability. The definition need go no further.

    21. The Commission provided detailed submissions on the reasons for taking such

    a simplified approach to the definition of direct discrimination in its submissions

    to the SDA Inquiry.

    22. In the context of the SDA, the Commission argued that the practical application

    of the comparator element by the courts has proven problematic, due primarily

    to the difficult issue of how to construct the same or similar circumstances‟ for

    carrying out the comparison. The same complications arise in the context of the

    DDA. Only very rarely is there an „actual comparator‟ - a person who was in the

    same circumstances in all material respects against whom an aggrieved

    person‟s treatment can be compared. It is therefore necessary for Courts to

    consider the position of a „hypothetical comparator‟. This is an exercise fraught

    with complexity.

    23. Lindsay, Rees and Rice note:

    There are numerous instances in which courts and tribunals have

    struggled with the overlapping factual issues of identifying a person,

    either real or hypothetical, who may stand as the „comparator’ and

    when determining the relevant characteristics for the purposes of

    contrasting the respondent‟s treatment of the complainant with the

    treatment of the comparator... The High Court decision in Purvis v New

    South Wales provides a stark illustration of the difficulties which can

    arise in some cases when seeking to describe the attributes of the

    „comparator‟ and when determining the relevant circumstances for the

    purposes of the statutorily mandated comparison of treatment. The

    various judgments in Purvis illustrate that there is considerable scope,

7 Purvis v NSW (Dept of Education) (2003) 217 CLR 92, 160-161 [223]-[225] (Gummow, Hayne and

    Heydon JJ). See further Belinda Smith, „From Wardley to Purvis How Far Has Australian Anti-

    Discrimination Law Come in 30 Years?‟ (2008) 21 Australian Journal of Labour Law 3, 8, 19.

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     DDA Amendment Bill 2008 12 January 2009

    in some areas, for quite different approaches to these issues which are, 8essentially, questions of fact.

    (c) A simplified test

    24. The Commission submitted to the Committee in the SDA Inquiry that an

    appropriate „best practice‟ model can be found in the Discrimination Act 1991

    (ACT) which provides simply that discrimination occurs when the discriminator

    treats or proposes to treat the other person unfavourably because the other

    person has [a protected attribute]‟. Such an approach does not require an

    explicit comparative element. This submission was accepted by the Committee

    in its recommendation 5:

    The committee recommends that the definitions of direct discrimination in

    sections 5 to 7A of the Act be amended to remove the requirement for a

    comparator and replace this with a test of unfavourable treatment similar to

    that in paragraph 8(1)(a) of the Discrimination Act 1991 (ACT).

    25. In the context of disability discrimination, this results in a simple test: a person

    discriminates against another person if the person treats or proposes to treat

    the other person unfavourably because of the other person‟s disability.

    26. Under such a simplified test, comparative analysis may still often provide a

    useful analytical tool in determining whether particular treatment was partly or

    wholly on the ground of a protected attribute and not some other unrelated 9reason. If an aggrieved person can show that the only factor distinguishing

    their treatment from that of another person without a disability but otherwise

    similarly circumstanced, this might allow an inference to be drawn that the

    disability was causative. As noted by the Commission in its submission to the

    SDA Inquiry, courts in the ACT have still chosen in some cases to conduct a 10comparative-based mode of inquiry.

    27. Importantly, however, under the proposed simplified approach, the comparator

    element is not a rigid threshold requirement which must be met by an applicant

    in every case. Where good reasons warrant departing from a comparative

    analysis in assessing the causation element, such as where a particular

    circumstance is unique to a person with a disability, a court is not bound to still

    apply the comparator element as a necessary element of the definition.

    Recommendation 2: Remove the requirement for a comparator in the test of

    direct discrimination and replace this with a test of unfavourable treatment

    because of a person‟s disability.

8 Katherine Lindsay, Neil Rees and Simon Rice, Australian Anti-Discrimination Law: Text, Cases and

    Materials (2008), 83. 9 Katherine Lindsay, Neil Rees and Simon Rice, Australian Anti-Discrimination Law: Text, Cases and

    Materials (2008), 110-1. 10 See, for example, Prezzi and Discrimination Commissioner [1996] ACTAAT 132, [24]-[25].

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    Australian Human Rights Commission

     DDA Amendment Bill 2008 12 January 2009

    2.3 Indirect discrimination: sch 2, item 17 s6

    28. The Commission argues for a simplification of the definition of indirect discrimination to improve its operation and harmonise it with the definition contained in the SDA.

    (a) The Bill’s proposed definition

    29. The proposed definition of indirect discrimination is as follows: 6 Indirect Disability Discrimination

    (1) For the purposes of this Act, a person (the discriminator) discriminates

    against another person (the aggrieved person) on the ground of a disability

    of the aggrieved person if:

    (a) the discriminator requires, or proposes to require, the aggrieved

    person to comply with a requirement or condition; and

    (b) because of the disability, the aggrieved person does not or would not

    comply, or is not able or would not be able to comply, with the

    requirement or condition; and

    (c) the requirement or condition has, or is likely to have, the effect of

    disadvantaging persons with the disability. (emphasis added)

    ….

    (3) Subsection (1) or (2) does not apply if the requirement or condition is

    reasonable, having regard to the circumstances of the case. (4) For the purposes of subsection (3), the burden of proving that the requirement

    or condition is reasonable, having regard to the circumstances of the case,

    lies on the person who requires, or proposes to require, the person with the

    disability to comply with the requirement or condition.

    30. The Commission‟s submissions in relation to s 6(2) relating to „reasonable adjustment‟ are discussed separately below.

    31. The proposed s 6 amends the existing definition of indirect discrimination by, most significantly:

    ; removing the existing requirement that the relevant requirement or

    condition be one „with which a substantially higher proportion of

    persons without the disability comply or are able to comply‟ (s 6(a) of

    the existing definition);

    ; changing the requirement that an aggrieved person be unable to

    comply with the requirement or condition to a requirement that such

    inability to comply is „because of the disability‟ (s 6(1)(b) of the

    proposed definition);

    ; inserting the requirement that „the requirement or condition has, or is

    likely to have, the effect of disadvantaging persons with the disability‟

    (s 6(1)(c)); and

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     DDA Amendment Bill 2008 12 January 2009

    ; shifting the burden of proving that a requirement or condition is

    reasonable to the respondent (s 6(4)).

    32. While the Commission commends the removal of the proportionality test and

    shifting the burden of proving „reasonableness‟, it is concerned that the

    definition of indirect discrimination in s 6(1) retains one of the most problematic

    elements in the disability discrimination context: the requirement that a person

    with a disability „does not or would not comply, or is not able or would not be

    able to comply, with the requirement or condition‟.

    (b) Simplification and harmonisation

    33. The Commission recommends that the Bill be amended to simply remove

    proposed s 6(1)(b). The effect of this would be a definition of indirect

    discrimination that is substantially the same as that under the SDA (s 5(3)),

    simply requiring an aggrieved person to show that

    ; the discriminator requires, or proposes to require, the aggrieved

    person to comply with a requirement or condition; and

    ; the requirement or condition has, or is likely to have, the effect of

    disadvantaging persons with the aggrieved person‟s disability.

    (c) Focus on disadvantage, not ‘ability to comply’

    34. Whether a person is able to comply with a particular condition or requirement

    may depend on a range of factors, including:

    ; the nature of a person‟s disability;

    ; how the complainant formulates or specifies what the requirement

    or condition is;

    ; how the respondent administers the requirement or condition;

    ; whether the particular complainant (considering the resources

    available to that person in the circumstances) is able to overcome

    the obstacles presented or „cope‟ with the disadvantage caused;

    and

    ; the level of distress, inconvenience or embarrassment a person

    should reasonably have to endure.

    35. These factors should not be the focus of inquiry. Instead, as is the case under

    the SDA, the definition should focus on disadvantage to the person with a

    disability caused by the condition or requirement relative to persons without a

    disability. Such an approach is consistent with the underlying aim of the DDA:

    to enable people with disability to live without disadvantage. 36. Such a change would not only be a step towards harmonization of federal

    unlawful discrimination laws, but would result in greater simplicity and

    workability of the definition of indirect discrimination in the disability context.

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     DDA Amendment Bill 2008 12 January 2009

    (d) Problems with the focus on ‘ability to comply’

    37. Examples of the problems caused by a focus on compliance arose in the cases 1112of Hinchcliffe v University of Sydney (Hinchliffe) and Hurst v Queensland

    (Hurst).

    38. In Hinchcliffe, the court found that a vision impaired student was able to comply

    with the condition that notes be provided in a standard format (white paper and

    10-12 point font) because she was able to reformat the materials most of the 13time. In order for Ms Hinchliffe to comply with the condition:

    ; Her mother had to visit the University several times to assist finding

    books in the library. Each visit lasted 4 hours.

    ; Ms Hinchcliffe and her mother spent numerous hours photocopying and

    scanning notes and articles.

    ; Her mother spent a significant amount of time reading notes with poor

    legibility and explaining diagrams and other information presented in

    video format.

    ; Her grandmother and mother converted sets of notes into audio tapes

    through a process that took 2 full days.

    ; Ms Hinchliffe also spent a considerable amount of time „chasing up‟ her

    university lecturers for appropriately formatted materials.

    ; Ms Hinchcliffe and her mother went to the State Library four times to

    investigate a software program to assist in reformatting the notes. The

    program was found to be even more time-consuming. One of these

    visits took three hours.

    39. The Court noted that Ms Hinchcliffe was inconvenienced relative to other

    students when complying with the condition but found that this did not mean 14she was unable to comply with the condition. The Court found that the

    disadvantage suffered by Ms Hinchliffe did not constitute a „serious 15disadvantage‟.

    40. The reasoning in Hinchliffe effectively means that those who „persevere‟ are

    given less protection by the DDA and allows a respondent to shift the burden of

    accessibility onto people with disability, their parents, carers, friends and 16associates.

11 (2004) 186 FLR 376. 12 Hurst v Queensland (2006) 151 FCR 562 (Full Federal Court); Hurst v Queensland [2005] FCA 405

    (first instance). 13 (2004) 186 FLR 376, 383 [22], 391-2 [56]-[59]. 14 Ibid 476, [114] [115]. 15 Ibid 476, [115]. 16 See generally B Fogarty, The Silence is Deafening: Access to education for deaf children‟, (2005)

    43(5) Law Society Journal 78.

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