Basser, Lee Ann; Jones, Melinda --- "The DDA and the Tripartite Approach to Operationalising Human Rights" [2002] MelbULawRw 16; (2002) 26(2) Melbourne University Law Review 254
[∗] 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).