Bills Digest no. 87 2008–09
Disability Discrimination and Other Human Rights
Legislation Amendment Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Date
introduced: 3 December
2008
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Sections 1 3 on the day of
Royal Assent; Schedule 1, Part 1 of Schedule 2, Division 1, Part 1
and Part 2 of Schedule 3 and Schedule 4 on the 28th day after Royal
Assent; all other items subject to the commencement of other Acts
and Regulations.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of
the Bill is to amend the
Disability Discrimination Act 1992 (DD Act) to
implement certain recommendations made by the Productivity
Commission in its 2004 review of the DD Act. The Bill also responds
to the recent decision of the Full Federal Court in the case of
Forest[1] by
clarifying the operation of Part 1 of the DD Act: namely, 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.
The Bill also:
- acts on the recommendation made by the House of Representatives
Standing Committee on Legal and Constitutional Affairs to remove
the dominant purpose test from the Age Discrimination Act
2004 (AD Act)[2]
and
- makes various other technical amendments to human rights
legislation.
The DD Act is part of a package of
Commonwealth anti-discrimination laws (including the Racial
Discrimination Act 1975, Sex Discrimination Act 1984,
Human Rights and Equal Opportunity Commission Act 1986 and
Age Discrimination Act 2004).
The DD Act makes disability discrimination unlawful by aiming to
deal with physical and attitudinal barriers that act to directly
and indirectly preclude people with disabilities from making
optimal use of their knowledge, skills and talents, such that they
may effectively and affectively participate in the community. It
affords people with disabilities the right to substantive equality
of opportunity in areas like employment, education and the
provision of goods and services.[3]
Indeed, the effective operation of Australia s democracy may be
argued as being predicated on and imbued with a respect for human
rights.
As Justice Kirby has argued:
the modern notion of democracy, at least in a
country such as Australia, is far more complex than simple
majoritarian rule. It is a sophisticated form of government which
involves the general ability of the will of the majority to prevail
but in a legal and social context in which the rights of vulnerable
minorities are respected and defended [ ][4]
Australia is a signatory to several international agreements
that oblige it to address disability discrimination in good
faith.[5] This means,
inter alia, putting in place relevant laws and regulations
and monitoring their effectiveness.
As part of the former Government s commitment to assessing all
existing legislation on the basis of national competition policy
principles, on 5 February 2003, the then Parliamentary Secretary to
the Treasurer, Ian McFarlane, announced the review of the DD Act by
the Productivity Commission. Mr McFarlane explained that the review
was designed:
to assess whether any restrictions on
competition in the [Disability Discrimination] Act produce benefits
that exceed costs and therefore justify the restrictions.[6]
At the time, all legislation that restricted competition or
imposed costs on businesses was:
being evaluated on the basis that it should be
retained only if the benefits to the community as a whole outweigh
the costs, and if the legislation s objectives cannot be achieved
more effectively through other means .[7]
The terms of reference on which the Productivity Commission was
to report were, amongst other things:
- the social impacts in terms of costs and
benefits that the legislation has had upon the community
as a whole and people with disabilities, in particular its
effectiveness in eliminating discrimination on the ground of
disability, and
- any parts of the legislation which restrict
competition should be retained only if the benefits to the
community as a whole outweigh the costs and if the objectives of
the legislation can be achieved only through restricting
competition.[8]
In making assessments as to these matters the Productivity
Commission was to have regard to the analytical requirements for
regulation assessment by the Commonwealth, including those set out
in the Competition Principles
Agreement and the Government's guidelines on
regulation impact statements .[9] In particular the final report was to, amongst
other things:
- identify whether, and to what extent, the legislation restricts
competition,[10]
and
- examine mechanisms for increasing the overall efficiency of the
legislation, including minimising the compliance costs and paper
burden on small business.[11]
As can be seen from the above, one of the dominant themes of the
review was the impact of Commonwealth disability discrimination
regulation on the competitiveness of Australian business,
employment and investment growth. It is therefore interesting to
consider if, and how, those parameters may temper the operational
outcomes of the DDA in times of economic recession.
On 14 July 2004, the Productivity Commission s final report was
tabled in Parliament. In January 2005, the former Government
responded to the
recommendations of the Productivity Commission accepting 26 of the
32 recommendations either in full, in part or in principle.[12]
In announcing the Government s response, the then
Attorney-General said:
The Government accepts that it is necessary to
clarify that the DDA does require organisations to make reasonable
adjustments to eliminate discriminatory barriers. However, explicit
recognition of this duty is balanced by expanding the operation of
the unjustifiable hardship defence.
We must ensure that adjustments will produce
net benefits for the community without imposing undue hardship on
the organisations required to make them.[13]
Amongst the recommendations which were accepted by the former
Government, the following are a feature of this Bill:
- the criteria for determining unjustifiable
hardship in section 11 of the DDA should be
expanded[14]
- the defence of inherent requirements
should be available to employers in all employment
situations[15]
- the exemption in section 45 of the DDA for special
measures that are reasonably intended to benefit
people with disabilities should be amended to clarify that it:
- exempts the establishment, eligibility criteria and funding of
these measures
- does not exempt general actions done in their
administration.[16]
- section 31 of the DDA should be amended to allow
disability standards to be introduced in
any area in which it is unlawful to discriminate on the ground of
disability. The standards-making power should extend to the
clarification of the operation of statutory exemptions.[17]
On 18 July 2008, the Government announced that it would
introduce amendments to the DD Act to implement recommendations
made by the 2004 review of the DD Act.[18]
Subsequently, the Government issued a discussion paper for
consultation on a National Disability Strategy (NDS) stating:
The Australian Government s commitment to
establish a National Disability Strategy (the Strategy) during the
2007 election was made in the belief that after 17 years of
economic growth, our nation must
The proposed amendments are explained as an extension of the NDS
initiative and the ratification of the UN
Convention on the Rights of Persons with a Disability.[20]
On 4 December 2008, the Bill was referred to the Senate Standing
Committee on Legal and Constitutional Affairs for inquiry and
report. The reporting date for the inquiry is 24 February 2009.
Details of the inquiry can be found at the Committee
website.
At the time of writing this Bills Digest 33 submissions had been
received. The content of some of the submissions is canvassed in
the Key Issues section below.
According to existing section 16 of the AD Act, if an act is
done for two or more reasons, and one of those reasons is the age
of the person, that reason must be the dominant purpose for which
the act was done in order for discrimination to be established. The
Bill removes the dominant reason test.
The submissions from the Law Council of Australia and the
Australian Human Rights Commission both supported the proposed
amendment.[21] In
particular, the Law Council of Australia was of the view that the
dominant reason test is out of step with the tests applied by other
pieces of discrimination legislation. [22]
The amendment to section 16 will implement recommendation 43 of
the House Standing Committee on Legal and Constitutional Affairs
2007 report,
Older People and the Law.
Items 5 and 6 of the Bill clarify and extend
the definition of disability in two
ways.
Firstly the definition is extended to ensure
that it includes a disability which may exist in the future
including because of a genetic predisposition . Whilst it has been
argued that the current definition of disability is sufficiently
broad to include genetic predisposition, the amendment will put
this beyond doubt.[23]
Secondly the definition is extended to include
behaviour that is a symptom or manifestation of the disability. In
the case of Purvis:[24] :
the central issue before the High Court was
whether treatment of a person based on their behaviour amounts to
unlawful disability discrimination, in circumstances where that
behaviour is directly connected with an underlying disability. The
question before the Court was whether the [DD Act] contained an
obligation to accommodate the effects or characteristics of a
person s disability such as disturbed behaviour in order to avoid a
finding of unlawful discrimination.[25]
The High Court determined that it did. The Bill amends the DD
Act to incorporate the High Court s interpretation, for the
avoidance of doubt.
Proposed subsection 5(2) implements
recommendation 8.1 of the 2004 Productivity Commission Report by
making explicit the positive duty to make reasonable
adjustments for a person with disability. This means
that a failure to make reasonable adjustments amounts to
discrimination.
According to Dr Belinda Smith:
Such a provision acknowledges that to achieve
substantive equality, organizations need to do more than simply
apply their criteria consistently and treat everyone the same. An
obligation to provide reasonable adjustments in effect distributes
some of the burden for change across a range of actors in
society.[26]
The Law Council of Australia, whilst welcoming the amendment,
noted the Productivity Commission s observation that No issue
caused as much comment during this inquiry as reasonable
adjustments reasonable adjustments can mean different things to
different people .[27]
The Bill clarifies that discrimination against a person on the
basis of a disability of any of that person s associates, or due to
a person possessing or being accompanied by an aid or assistant
animal (such as a guide dog), interpreter, reader, assistant or
carer, is equivalent to discrimination on the basis of that person
s disability.
The amendment is in response to the decision of the Full Federal
Court in Forest. In that case Mr Forest, who suffers from
a mental illness, trained a dog to accompany him in public. Mr
Forest was refused entry to the Cairns Base Hospital and on
subsequent occasions to the Smithfield Community Centre with his
dog. He lodged a discrimination complaint under the DD Act.
The question for the court was whether Mr Forest s dog was a
guide dog, hearing assistance dog or trained animal under section 9
of the DD Act. At first instance the Federal Court determined
that:
- Mr Forest had a disability within the meaning of section 4 of
the DD Act
- the complaint of indirect discrimination under section 6 of the
DD Act was made out because it was unreasonable for the Hospital
and/or the Community Health Centre to use their own discretion
about whether an animal was an assistance animal, in the absence of
any objective test[28]
- discrimination under section 9 of the DD Act was also
established as Mr Forest s dog was not ill behaved and was trained
to alleviate the effects of Mr Forest s disability.[29]
The State of Queensland appealed against the decision. The Full
Court of the Federal Court reversed the decision on the grounds
that for discrimination to be established under section 9 of the DD
Act it was insufficient for the less favourable
treatment to be on the grounds that Mr Forest was accompanied by an
assistance animal. It was also necessary to establish that the less
favourable treatment, the exclusion from the Cairns Base Hospital
and Smithfield s Community Health Centre was on the grounds of his
psychiatric disability and this could not be established.
The amendment has been widely welcomed.[30]
Currently, section 6 of the DD Act defines indirect disability
discrimination in terms of a person imposing a requirement or
condition on a person with disability with which a substantially
higher proportion of people without the disability can or would be
able to comply (called the proportionality test ), but with which
the person with disability cannot or would not be able to comply,
and which is unreasonable in the circumstances.
Item 17 of the Bill amends section 6 by,
amongst other things:
- removing the proportionality test and
- shifting the burden of proving that a requirement or condition
is reasonable to the respondent.
The amendment implements recommendation 11.3 of the 2004
Productivity Commission Report.
Proposed section 5(1) provides that a person 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 the aggrieved person less favourably than
they would treat a person without the
disability in circumstances that are not
materially different. Therefore, to establish
discrimination, a comparison between the aggrieved person and a
person without the disability must be made. This is called the
comparator test . It is a feature of the existing DD Act.
While the High Court in Purvis confirmed that a person
s disability includes the behavioural manifestations of their
disability, the majority also held that the appropriate comparator
is a person who does not have the disability but who exhibits like
behaviour. The appropriate comparator in that case was considered
to be a student without a disability who exhibited violent
behaviour similar to that exhibited by the complainant as a result
of his disorder.[31]
According to the Human Rights Law Resource Centre:
This interpretation of the comparator test
overlooks the inability of a person with a disability to control
circumstances that are caused by their disability, such as
disruptive behaviour, as in Purvis, or
infectiousness, as is characteristic of persons with HIV/AIDS. For
this reason the comparator test is particularly problematic for
people who have intellectual or non-physical disabilities.
The necessity of a comparator also poses
particular problems for persons who have been treated less
favourably as a result of their disability when compared with other
persons with a different form of the same disability, for example
when accessing disability services. In such circumstances a
comparator may not be found at all because people without the
particular disability may not require the service.[32]
The issue of the comparator test was canvassed by the 2004
Productivity Commission Report.[33] Recommendation 11.3 was that the definition of
direct discrimination in the DD Act should be supplemented with
examples (either included in the Act or in guidelines) to clarify
the circumstances that are the same or not materially different for
the purposes of making a comparison.[34]
The comparator test is retained in this Bill.
The existing DD Act contains a defence to unlawful
discrimination where not discriminating would cause the
discriminator unjustifiable hardship. The
Bill extends the availability of the defence to all unlawful
discrimination on the ground of disability (except harassment and
victimisation) in accordance with recommendation 8.2 of the 2004
Productivity Commission Report.
According to the Law Council, whilst it
recognises the arguments supporting the
Productivity Commission s recommendation for extension, it notes
that similar defences in all State and Territory discrimination
statutes are rarely available to all areas of public life covered
by the legislation.[35] Extending the unjustifiable hardship defence to all
areas of the [DD] Act would create further differences between
jurisdictions in an area of discrimination law that already suffers
substantially from a lack of uniformity.[36]
Other amendments in relation to unjustifiable
hardship included the clarification of the matters to
be considered when determining unjustifiable hardship, such as the
benefit accruing to or the detriment suffered by any person
concerned and the community at large and the financial
circumstances of, and the estimated amount required to be paid by,
the alleged discriminator; and the clarification that the onus of
proving unjustifiable hardship falls on the person claiming it.
According to the Explanatory Memorandum, the amendments in the
Bill will have negligible financial implications .[37]
The Age Discrimination Act 2004 (AD Act) makes it
unlawful to discriminate on the ground of age. Part 3 of the AD Act
provides that discrimination can be direct or indirect .
Direct discrimination, under section 14 of the AD Act, is
discrimination which takes place when a person is treated less
favourably because of age. For example, a decision not to employ
someone because of their age would be a case of direct
discrimination on the basis of that person's age.
Indirect discrimination under section 15 of the AD Act, occurs
when a condition or requirement is imposed which is more difficult
for people of a certain age to meet. For example, a requirement
that employees meet certain rigorous fitness standards may be more
difficult for those who are older.
Section 16 provides that if a discriminatory act, whether direct
or indirect, takes place and there a number of reasons for the act
then, in order for this to constitute age discrimination as defined
by the legislation, the age of the person must be the dominant
reason for the act.
Item 1 of Schedule 1 of the Bill repeals
section 16 and inserts proposed section 16. The
new section will apply where an act is done to a person for two or
more reasons and any one of the reasons is:
- the age of the person or
- a characteristic which relates generally to persons of that age
or
- a characteristic which is generally imputed to persons of that
age: proposed subsection 16(1).
In that case, the act is taken to be done because of the age of
the person: proposed subsection 16(2), and this is
prima facie unlawful.
Item 2 provides that the proposed amendment
will apply only to acts done after the commencement of Schedule 1
of this Bill.
Schedule 2 of the Bill is in 2 parts. Items 1
90 which are in Part 1 will commence on the day of Royal
Assent. Items 101 106 have varying dates of
commencement dependant upon the commencement of other statutes.
Items 1, 3, 4, 7, 9 and 13 insert new
definitions into existing subsection 4(1) which contains the
interpretative provisions of the Disability Discrimination Act
1992 (DD Act). In particular:
- item 4 inserts the definition of
Disabilities Convention being the
Convention on the Rights of Persons with Disabilities[38], done at New York on
30 March 2007,
ratified by Australia on 18 July 2008, and
- item 13 inserts the definition of
reasonable adjustment so that an
adjustment to be made by a person is a reasonable adjustment unless
making the adjustment would impose an unjustifiable
hardship on the person.[39]
Items 2, 8, 12, 14 and 15 repeal the existing
definitions for:
- auxiliary aid
- disability discrimination
- institution of tertiary education
- technical and further education institution, and
- this Act.
Item 17 repeals existing sections 5 9 and
inserts replacement provisions. These are the provisions that
define discrimination. Direct discrimination, under existing
subsection 5(1) of the DD Act, is discrimination which takes place
when a person is treated less favourably (or it is proposed to
treat them less favourably) because of their disability than a
person without the disability, in the same circumstances, or
circumstances that are not materially different. Proposed
subsection 5(1) is in similar terms to existing subsection
5(1). However proposed subsection 5(2) broadens
the current definition of direct discrimination to include the
circumstance where:
- a discriminator does not make, or propose to make,
reasonable adjustments for the person
and
- the effect of the failure to make reasonable adjustments is
that the aggrieved person is treated less favourably because of
their disability than a person without the disability, in the same
circumstances, or circumstances that are not materially
different.
Proposed subsection 5(3) provides that
circumstances are not materially
different because of the fact that, because of the
disability, the aggrieved person requires adjustments.[40]
Indirect discrimination under existing section 6 of the DD Act,
occurs when a condition or requirement is imposed upon a person
with a disability which is less difficult for people without that
disability to meet. Proposed subsection 6(1)
reframes the circumstances in which indirect discrimination occurs
so that an aggrieved person is discriminated against, on the
grounds of disability, if all of the following
conditions are satisfied:
- the discriminator requires (or proposes to require) the
aggrieved person to comply with a requirement or condition:
proposed paragraph 6(1)(a)
- the aggrieved person does not comply or would not be able to
comply with the requirement or condition because of their
disability: proposed paragraph 6(1)(b)[41]
- the requirement or condition has the effect (or is likely to
have the effect) of disadvantaging persons with the disability:
proposed paragraph 6(1)(c).[42]
However proposed subsection 6(2) broadens the
current definition of indirect discrimination to include the
circumstance where:
- a discriminator requires that an aggrieved person comply with a
requirement or condition and
- the aggrieved person would be able to comply with the
requirement or condition if the discriminator made reasonable
adjustments which the discriminator will not do, and
- the effect of the failure to make reasonable adjustments is to
disadvantage persons with the disability.
Proposed subsections 6(1) and (2) do not apply if the
requirement or condition is reasonable, having regard to the
circumstances of the case: proposed subsection
6(3). In that case the burden of proving that the
requirement or condition is reasonable lies with the person who
requires it: proposed subsection 6(4).
Proposed section 7 states that the DD Act
applies in relation to a person who has an associate with a
disability in the same way as it applies in relation to the person
with the disability. Items 23, 24, 26, 27, 30, 32, 35, 37
39, 42 44, 47, 50, 52, 53, 55, 56, 58 and 59 amend various
sections of the DD Act as a consequence of the changes in
proposed section 7. It should be read in
conjunction with proposed section 8 which extends
the operation of the DD Act to having a carer, assistance animal or
disability aid in the same way that it applies to having a
disability.
Proposed section 9 contains relevant
definitions of the terms:
- carer or assistant which includes an
interpreter or a reader: proposed paragraphs 9(1)(c) and
(d)
- assistance animal which may be a dog
or other animal which has received accredited training or is
trained to assist a person with a disability to alleviate the
effect of the disability and meet standards of hygiene and
behaviour which are appropriate for an animal in a public place:
proposed subsection 9(2) and
- disability aid which is used by the
person to alleviate the effect of the disability: proposed
subsection 9(3).
Item 18 repeals existing section 11 and
substitutes proposed section 11 which lists those
matters which must be taken into account in
deciding whether a person would suffer an unjustifiable
hardship namely:
- the nature of the benefit or detriment likely be suffered by
any person concerned
- the effect of the disability of any person concerned
- the financial circumstances, and the estimated amount of
expenditure required to be made, by the first person
- the availability of financial and other assistance to the first
person and
- any relevant action plans given to the Commission[43] under
section 64.[44]
The burden of proving that something would impose unjustifiable
hardship lies on the person claiming it: proposed
subsection 11(2).
The external affairs power in section 51(xxix) of
Commonwealth of Australia Constitution Act (the
Constitution) allows the Commonwealth to legislate to implement a
treaty if the Commonwealth law is reasonably capable of being
considered appropriate and adapted to implementing the treaty
.[45] Some
provisions of the DD Act rely on a range of international human
rights instruments such as the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social
and Cultural Rights. Item 20 inserts
proposed paragraph 12(8)(ba) to include the
Disabilities Convention as defined in
item 4.
Item 22 amends paragraphs 13(4)(a) and (5)(a)
so that where a person is entitled to make a complaint under the DD
Act and disability standards as well as under a state or territory
anti-discrimination law, then the complaint can only be made in one
of those jurisdictions. Similarly, a person can only be prosecuted
in one of those jurisdictions.
Item 41 inserts proposed sections 21A
and 21B which provides an exception to the rule that it is
unlawful to discriminate against a person on the grounds of
disability if:
- the discrimination relates to particular work and
- because of the disability, the aggrieved person is not able to
carry out the inherent requirements of the particular work, even if
the employer made reasonable adjustments.
In deciding whether the aggrieved person is not able to carry
out the inherent requirements of the particular work, even with
reasonable adjustments, proposed subsection 21A(2)
requires that the following matters be taken into account:
- the aggrieved person s past training, qualifications and
experience relevant to the particular work
- the aggrieved person s work performance, if they already work
for the discriminator, and
- any other factor which it is reasonable to take into
account.
Proposed subsection 21A(3) lists the
circumstances in which the aggrieved person works for another
person , and includes contractors.
However, under proposed section 21B it is
not unlawful to discriminate on the grounds of
disability if avoiding the discrimination would impose
unjustifiable hardship on the
discriminator.
Items 25, 28, 31, 33 and 36
omit various sections of the DD Act as a consequence of the changes
in proposed section 21A.
Existing Division 2 of Part 2 of the DDA relates to
discrimination in such areas as education, access to premises,
goods, services and facilities, accommodation and clubs and
incorporated associations. Item 60 repeals section
30 and inserts proposed sections 29A and 30.
Proposed section 29A provides that it is not
unlawful to discriminate against a person in respect of any of the
matters contained in Division 2 of Part 2 of the DD Act (apart from
section 30) if avoiding the discrimination would impose
unjustifiable hardship on the discriminator.
Proposed section 30 provides that it is
unlawful to request or require information from a person with a
disability that would not be required from a person without a
disability, if the information is sought for the purposes of
unlawful discrimination. Proposed subsection 30(3)
provides an exception to the prohibition where the person making
the request has evidence that the information was not requested for
that purpose.
Item 61 inserts the new heading of
Division 2A Disability standards. Item
62 repeals existing section 31 and inserts
proposed section 31 which empowers the Minister to
formulate disability standards in
relation to any area in which it is unlawful for a person to
discriminate against another person, on the ground of
disability.[46] The
disability standards will be legislative
instruments.[47]
Proposed paragraph 31(2)(a) provides that they may
deal with any of the following matters:
- reasonable adjustments
- strategies and programs to prevent harassment or victimisation
of persons with a disability
- unjustifiable hardship and
- exemptions from the disability standard.
In addition a disability standard may specify that it is not
intended to affect the operation of a law of a State or Territory:
proposed paragraph 31(2)(b). Proposed
subsection 31(4) retains the general stipulation in the
current provision that the standards do not take effect until the
completion of the period in which they could be disallowed by the
Parliament .[48]
Items 68 and 88 remove
references to monetary penalties and replace them with references
to penalty units.[49]
Item 76 inserts proposed section
54A which applies so that the following actions in
relation to a person with a disability who has an assistance animal
are not unlawful:
- requesting or requiring that the assistance animal remain under
the control of the person with the disability or another person:
proposed subsection 54A(2)
- discriminating against the person with the disability if it is
reasonably suspected that the assistance animal has an infectious
disease where it is reasonably necessary to protect public health
or the health of other animals: proposed subsection
54A(4)
- requesting a person with a disability to provide evidence that
an animal is an assistance animal : proposed paragraph
54A(5)(a)
- requesting a person with a disability to provide evidence that
an animal is trained to meet standards of hygiene and behaviour
suitable for a public place: proposed paragraph
54A(5)(b)
- discriminating against a person with a disability who is unable
to provide evidence as outlined in proposed paragraphs 54A(5)(a)
and (b) above: proposed subsection 54A(6).
Item 80 repeals existing section 59 which
contains the interpretation of service provider . In its place is
the proposed definition of action planner
. According to the Explanatory Memorandum, the rationale for the
change is to allow for a wider class of persons who may make action
plans.[50]
Items 81 86 are consequential amendments arising
from this change.
Items 91 and 92 amend subsection 11(1) of the
Human Rights and Equal Opportunity Commission Act 1986
(HREOC Act) to specify that functions are conferred on the
Commission under the DD Act.
Items 94, 97 and 100 amend section 8 of the
Inspector General of Intelligence and Security Act 1986
(IGIS Act) so that it is clear that the Inspector General is
empowered to inquire into any matter which relates to an act, or
practice, of one of the intelligence agencies that is inconsistent
with, or contrary to, any the anti-discrimination provisions
contained in the DD Act.
The Human Rights Legislation Amendment Bill (No. 2) 1998 was
introduced into the House of Representatives on 8 April 1998. In
the second reading speech the then Attorney-General stated that the
name of the Human Rights and Equal Opportunity Commission would be
changed to the Human Rights and Responsibilities Commission to
reflect
that the new commission's priority will be to
educate Australians about human rights and
discrimination, and to help them to understand their
responsibility, as members of the Australian community, to respect
other people's human rights.[51]
Parliamentary debate on the Bill was not completed before the
38th Parliament was prorogued. The Bill was reintroduced
as the
Human Rights Legislation Amendment Bill (No.2) 1999 which
subsequently lapsed when the Federal Election was called in late
2001.
The Australian Human Rights Commission Legislation Bill 2003 was
introduced on 27 March 2003 with the proposal to amend the name of
the Human Rights and Equal Opportunity Commission to the Australian
Human Rights Commission. The relevant Bills
Digest contains useful background information. The Bill lapsed
at the end of the 40th Parliament.
Part 1 of Schedule 3 amends the following statutes:
- Age Discrimination Act 2004
- Australian Crime Commission Act 2002
- Civil Aviation Act 1988
- Commonwealth Electoral Act 1918
- Crimes (Torture) Act 1988
- Criminal Code Act 1995
- Defence Act 1903
- Disability Discrimination Act 1992
- Evidence Act 1995
- Housing Assistance Act 1996
- Human Rights and Equal Opportunity Commission Act
1986
- Human Rights (Sexual Conduct) Act 1994
- Inspector General of Intelligence and Security Act
1986
- Migration Act 1958
- Native Title Act 1993
- Privacy Act 1988
- Privacy Amendment (Office of the Privacy Commissioner) Act
2000
- Racial Discrimination Act 1975
- Remuneration Tribunal Act 1973
- Sex Discrimination Act 1984
- Supported Accommodation Assistance Act 1994
- Workplace Relations Act 1996 and
- Fair Work Act 2008
In each case:
- references to the Human Rights and Equal Opportunity
Commission Act 1986 are omitted and substituted with
references to the Australian Human Rights Commission Act
1986 or
- the existing definition of Commission
, being the Human Rights and Equal Opportunity Commission, is
omitted and substituted with the proposed definition of
Commission as meaning the Australian
Human Rights Commission or
- a reference to HREOC is omitted and substituted with a
reference to the Australian Human Rights Commission.
Part 2 of Schedule 3 amends a number of
statutes as follows:
- items 117 118: DD Act
- items 119 166: HREOC Act
- items 167 178: Racial Discrimination Act 1975 (RD
Act)
- items 179 180: Sex Discrimination Act 1984 (SD
Act)
Items 117, 119, 149, 175 and
179 amend the DD Act, the HREOC Act, the RD Act
and the SD Act respectively so that, before the Governor-General
makes an appointment to the Commission, the Minister must be
satisfied that the person has the appropriate qualifications.
According to the Explanatory Memorandum, this is consistent with
Office of Parliamentary Council Drafting Direction No 3.4 .[52]
Items 122, 131, 137, 140, 141 and
163 amend the HREOC Act so that monetary figures
are omitted from penalty provisions and replaced with penalty
units.
Existing section 46P of the HREOC Act provides that complaints
alleging unlawful discrimination may be lodged with the Commission
by a person who is aggrieved by an act or practice. Subsection
20(1) provides that Commission is to carry out its functions when
it has received a complaint in writing alleging that an act or
practice is inconsistent with any human right. The sections are
inconsistent as the power contained in subsection 20(1) is not
dependant upon the complaint being made by an aggrieved person. The
effect is that the Commission may receive a complaint about the
treatment of a person without that persons knowledge or consent.
Item 125 amends paragraph 20(1)(b) to remove this
anomaly.
Existing subsection 32(3) sets out the circumstances in which
the Commission can decide not to enquire into an act or practice.
Item 147 inserts proposed subparagraph
32(3)(c) which would allow the Commission to decide not to
enquire into a matter where it has been settled or resolved. The
effect of this amendment is that it will no longer be necessary for
a complainant to formally withdraw a complaint which has been
resolved by agreement.[53]
Section 46PO provides that an application may be made to the
Federal Court or the Federal Magistrates Court in circumstances
where the President of the Commission has terminated a complaint.
In particular, subsection 46PO(2) provides that the application
must be lodged within 28 days of the notice of termination being
issued to the complainant. Item 154 amends
subsection 46PO(2) so that the time limit for lodging the
application is increased to 60 days.
The remaining items in schedule 3 of the Bill are primarily
technical amendments.
Items 1 3, 5, 7 12 and 14 amend the SD Act and
the RD Act so that monetary figures are omitted from penalty
provisions and replaced with penalty units.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2404 (Juli
Tomaras) or (02) 6277 2434 (Paula Pyburne).
[5]. The United
Nations (UN) and International Labour Organisation (ILO) have
several long-standing conventions and declarations that promote
human rights and equality for people with disabilities and help to
underpin discrimination legislation in Australia such as the ILO
Declaration of Philadelphia (1944), the UN Universal Declaration of
Human Rights (1948), the ILO Discrimination (Employment and
Occupation) Convention (1958), the UN Declaration on the Rights of
Mentally Retarded Persons (1971) and the UN Declaration on the
Rights of Disabled Persons (1975) see: Productivity Commission,
Review of the Disability Discrimination Act 1992 , Productivity
Commission Inquiry Report No. 30, Commonwealth of Australia,
30 April 2004, p. 42, available at:
http://www.pc.gov.au/__data/assets/pdf_file/0010/39655/dda1.pdf
accessed on 30 January 2009.
[28]. Forest
v. Queensland Health [2007] FCA 936 at paragraphs 65
85.
[29]. ibid., paragraphs 89 to 128.
[35]. For
example, a defence of unjustifiable hardship, or some related term,
is available in the ACT in areas of employment, education, access
to premises, provision of goods and services, accommodation, and
club membership; in NSW in the areas of employment, membership of
registered clubs and industrial organisations, and the provision of
goods and services, education, and accommodation; in the Northern
Territory only when a person has a special need and it is
unreasonable to require the supply of special services or
facilities ; in Queensland in the areas of employment, club
membership provision of goods and services, education and
accommodation; in South Australia only in the provision of goods
and services; in Tasmania in the areas of employment, access to
public spaces, and the provision of goods and services; in Victoria
in the areas of employment and the provision of education and
services, and in Western Australia in employment, club membership,
and the provision of goods and services, education and
accommodation.
[38]. The
Convention complements existing international human rights
treaties. It does not recognize any additional human rights of
persons with disabilities, but rather clarifies the obligations and
legal duties of States to respect and ensure the equal enjoyment of
all human rights by all persons with disabilities. The Convention
identifies areas where adaptations have to be made for persons with
disabilities to effectively exercise their rights and areas where
their rights have routinely been violated, and where protection of
rights must be reinforced. It sets out in detail the additional
positive steps that States must take in order to ensure an enabling
environment for the enjoyment of the rights of persons with
disabilities.
[46]. Under
section 19A of the Acts Interpretation Act 1901 a
reference to the Minister is a reference to the
Attorney-General.
[47]. The
Legislative Instruments Act 2003 defines a legislative
instrument as an instrument of a legislative character that is, or
was, made under a delegation of power from Parliament . A
legislative instrument must be tabled in both houses of the
Parliament and may be subject to disallowance.
Juli Tomaras and Paula Pyburne
2 February 2009
Bills Digest Service
Parliamentary Library
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