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People with
disabilities have the right to
equality of citizenship in all aspects of
life.
The Commonwealth
Disability Discrimination Act
(DDA)
The
 Commonwealth's
Disability Discrimination
Act gives
people with disabilities the right to
lodge complaints with the
Human
Rights and Equal Opportunity Commission
(HREOC) when
they are discriminated against on the
basis of their disability in housing,
transport, education, employment, access
to premises and access to services. A
complaint may be defended on the grounds
that:
- eliminating the
discrimination would impose
unjustifiable hardship on the
defendant;
- the
discrimination is legal because the
defendant complies with a nationally
accepted Disability
Standard.
Conciliators within
HREOC attempt to resolve complaints by
bringing the parties to a conciliation
conference. Where conciliation fails, the
complaint can be heard in a tribunal by a
Hearing Commissioner who makes a
determination. If a respondent decides not
to comply, the determinant proceedings can
begin in the Federal Court.
The NSW
Anti-Discrimination Board
(ADB)
The
NSW
Anti-Discrimination
Act (ADA),
administered by the
Anti-Discrimination
Board (ADB),
is a state-based alternative to the DDA.
The scope of the ADA and the definition of
discrimination is narrower than the
Commonwealth law. Complaints are made to
the ADB which then seeks to conciliate.
Where this fails,
the complainant is referred to the Equal
Opportunity Tribunal which can make a
binding decision. There is a delay in
processing complaints because the ADB is
under-resourced.
Disability
Standards
Disability Standards
under the DDA have been and are being
developed to provide a level of clarity in
detailing what is and what is not
discrimination. The Standards define the
minimum provisions which must be complied
with by law, with the corollary that
discrimination is permissible so long as
there is compliance with the Standard.
The process of
developing Standards has been flawed
insofar as:
- disability
representatives on working parties are
outnumbered and outresourced by
non-disability organisations and
authorities;
- disability
representatives are not resourced to
conduct or direct research, or to
consult broadly with people with
disabilities;
- the agenda of
non-disability representatives appears
to be one of developing Standards which
restrict costs rather than setting
benchmarks which reduce
discrimination.
Pending
Legislation
In addition to
funding cuts in HREOC, there are two
amendments before the Commonwealth
Parliament to amend the Human Rights Act.
Among provisions likely to substantially
diminish the force of the Disability
Discrimination Act are:
- hearings to be
conducted by the Federal Court rather
than HREOC;
- costs to follow
the event in discrimination cases so
that if a complainant loses in the
Federal Court, s/he may be required to
pay for the costs of the respondent as
well as her/his own costs;
- removal of the
position of Disability Discrimination
Commissioner;
- the need for the
approval of the Attorney-General as
well as the Court where the Commission
seeks to intervene in Court proceedings
that involve human rights
issues.
PDCN calls on the
Commonwealth Government -
1. The Commonwealth
Parliament to ensure that:
Federal Court fees
not apply in disability discrimination
cases;
- the "costs
follow the event" principle not apply
in disability discrimination cases and
that each party bears its own costs
unless exceptional justifying
circumstances exist;
- Legal Aid remain
available to complainants in
anti-discrimination proceedings before
the Federal Court regardless of income
and assets;
- the Federal
Court develop standard procedures for
preparation of disability
discrimination cases and that all
relevant court personnel and Judicial
Registrars receive adequate training to
ensure that the process and conduct of
hearings maintain informality of
proceedings and accessible processes
for case preparation;
- HREOC be
provided with a means to prosecute
alleged discriminators as occurs for
example with breaches of Environmental
Law;
- HREOC not be
required to receive the approval of the
Attorney-General as well as a Court
when it seeks to intervene in
proceedings involving human rights
issues;
- HREOC continue
to have a specialist Disability
Discrimination Commissioner.
2. The Commonwealth
Attorney-General:
- to direct those
Taskforces and Working Parties involved
in developing draft DDA Standards:
- to develop
comprehensive and prescriptive
Standards;
- to develop
Standards as general technical
benchmarks for providing equitable
access to people with disabilities;
- to restructure
Working Parties to allow for
representation of, and fuller
consultation with the wide range of
people with different disabilities and
their representatives to ensure an
equality of representation between
disability groups and non-disability
groups;
- to resource
disability groups to undertake research
into alternative technical benchmarks
related to making Disability Standards;
- to examine
alternatives to Standards e.g.
guidelines, Action Plans, affirmative
action programs, and quota systems;
- to examine
alternatives to the complaints process
to allow for a more public
investigation process which encourages
systemic compliance with the DDA.
3. The Commonwealth
Government to restore funding to HREOC to
enable it to continue with research,
education, policy development and to
reduce waiting times.
PDCN calls on the
State Government -
4. The State
Government:
- to increase the
resources allocated to the
Anti-Discrimination Board so that
delays are reduced;
- to widen the
scope of the NSW Anti-Discrimination
Act to match the scope and definitions
of the DDA.
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