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CHAPTER 1
INTRODUCTION
1.1
On 4 December 2008, the Senate referred the Disability Discrimination and
Other Human Rights Legislation Amendment Bill 2008 to the Standing Committee on
Legal and Constitutional Affairs, for inquiry and report by 24 February 2009.
1.2
The Bill was
introduced in the House of Representatives on 3 December 2008 by the
Attorney-General, the Hon. Robert McClelland, and seeks to amend the Disability
Discrimination Act 1992 ('the DDA', Age Discrimination Act 2004
('the ADA'), Human Rights and Equal Opportunity Commission Act 1986 (the
HREOC Act') and other legislation.
1.3
Foremost among the Bill's objectives is the implementation of the recommendations
of the Productivity Commission in its 2004 review of the DDA.[1] The Bill also implements the House of
Representatives Standing Committee on Legal and Constitutional Affairs’
recommendation[2] to remove the ‘dominant purpose’ test
from the ADA and makes various other amendments to the human rights legislation
going to the general operation of human rights law in Australia.
Summary of key amendments
1.4
In summary, the Bill:
- makes explicit that refusal to make reasonable adjustments for
people with disability may also amount to discrimination;
- makes the defence of unjustifiable hardship available in relation
to all unlawful discrimination on the ground of disability, except harassment
and victimization;
- clarifies matters to be considered when determining unjustifiable
hardship;
- clarifies that the onus of proving unjustifiable hardship falls
on the person claiming it;
- makes clear that the definition of disability includes genetic
predisposition to a disability and behaviour that is a symptom or manifestation
of a disability;
- replaces the ‘proportionality test’ in the definition of indirect
discrimination with the requirement to prove that the condition or requirement
imposed has the effect of disadvantaging people with the disability of the
aggrieved person;
- shifts the onus of proving the reasonableness of a requirement or
condition in the context of indirect discrimination from the person with
disability to the respondent, and
- extends the power to make standards under the DDA.
- seeks to assist people with assistance animals and service
providers by recognising animals accredited either under a State and Territory
law or by a relevant organisation.
- consolidates provisions relating to carers, assistants and aids,
and addresses the issues raised by the Full Federal Court in Forest [2008] by
clarifying that discrimination on the basis that a person possesses or is
accompanied by a carer, assistant or aid, is discrimination on the basis of
disability.
- implements the Government’s decision to change the name of the
Human Rights and Equal Opportunity Commission to the Australian Human Rights
Commission.
- extends the period within which a person may take a terminated
complaint to the Federal or Federal Magistrates Court from 28 days to 60 days;
and
- aims to improve the efficiency of the complaints handling process
under the HREOC Act, such as allowing the President of the Commission to
finalise a complaint where the complainant expresses no intention to pursue the
matter.
Conduct of the inquiry
1.5
The committee
advertised the inquiry in The Australian newspaper on 17 December 2008, and invited submissions by 12 January 2009.
Details of the inquiry, the Bill, and associated documents were placed on
the committee's website. The committee also wrote to over 50 organisations and
individuals inviting submissions.
1.6
The committee received
38 submissions which are listed at Appendix 1. Submissions were placed on the
committee's website for ease of access by the public.
1.7
The committee held
public hearings in Sydney on 21 January 2009, Melbourne on 29 January 2009, and Canberra
on 6 February 2009. A list of witnesses who appeared at the
hearings is at Appendix 2 and copies of the Hansard transcript are available
through the Internet at http://www.aph.gov.au/hansard.
Acknowledgement
1.8
The committee thanks
the organisations and individuals who made submissions and gave evidence at the
public hearing.
Note on references
1.9
References in this
report are to individual submissions as received by the committee, not to a
bound volume. References to the committee Hansard are to the proof Hansard:
page numbers may vary between the proof and the official Hansard transcript.
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