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Disability Discrimination Bill 1992
House: House of Representatives Portfolio: Health, Housing and Community Services Purpose To make it unlawful, in a limited number of circumstances, to discriminate on grounds of disability and establish within the Human Rights and Equal Opportunity Commission the office of Disability Discrimination Commissioner.
Background Disability and Handicap - Statistical Outline: In 1988, the Australian Bureau of Statistics (ABS) conducted a Survey on Disability and Ageing. The findings of the Survey included: * approximately 2.5 million Australians are 'disabled' 1 to some extent; * 13% of Australians are 'handicapped' 2; * 4% of Australians have a severe handicap (personal help or supervision required, or are unable to perform one or more selected tasks); * 3.4% of Australians have a moderate handicap (no personal help or supervision required, but experience difficulty in performing selected tasks); * 3.8% of Australians have a mild handicap (no difficulty in performing selected tasks, but require an aid or experience difficulty walking 200 metres or up and down stairs); * approximately 77.4% of Australians with disabilities were not in the labour force and were in receipt of a pension; and * the prevalence of severe handicap in Australians increases with age.
Commonwealth and State Anti- Discrimination Legislation - Overview: At the Commonwealth level there are several Acts that address directly or impact indirectly on the issue of discrimination against people with disabilities, including the Human Rights and Equal Opportunity Commission Act 1986 and Disability Services Act 1986. Commonwealth legislation addressing discrimination against people with disabilities is a recent phenomenon. Arguably, until the 1970s, as a consequence of constitutional, economic and political considerations, the Commonwealth had done little in respect of discrimination against people with disabilities. It may be argued that constitutional restrictions have arisen, in large part, because of narrow legal views that matters relating to discrimination against people with disabilities did not fall within the heads of Commonwealth constitutional power. Today however, in light of recent High Court decisions such as the Tasmanian Dams Case, it is clear that it is within Commonwealth power, on the basis of the corporations and foreign affairs powers, to legislate on matters relating to discrimination of people with disabilities throughout Australia in order to give effect to Australia's international treaty obligations.
The principal Commonwealth Act that addresses the issue of discrimination against people with disabilities is the Human Rights and Equal Opportunity Commission Act 1986. This Act established the Human Rights and Equal Opportunity Commission (the Commission). The Commission's objective is to promote the acceptance and observance of human rights and equal opportunity in Australia by developing public awareness of these rights through public inquiries, community education and individual complaint resolution. The Commission has responsibility for the Human Rights and Equal Opportunity Commission Act 1986, Racial Discrimination Act 1975 and Sex Discrimination Act 1984. These Acts give effect to a number of international agreements, including the International Covenant on Civil and Political Rights, Declaration on the Rights of Disabled Persons, International Convention on the Elimination of All Forms of Racial Discrimination and International Convention on the Elimination of All Forms of Discrimination Against Women. The Commission is granted certain powers under its enabling legislation, including to inquire into any act or practice that may constitute discrimination and formulate guidelines for the avoidance by government of acts or practices that infringe on human rights.
In 1989, the Attorney- General announced that regulations under the Human Rights and Equal Opportunity Commission Act 1986 would be made to give the Commission power to investigate discrimination in employment relating to physical, mental, intellectual and psychiatric disability, impairment and medical record. These regulations came into effect on 1 January 1990.
There is legislation in New South Wales, Queensland, South Australia, Victoria, Western Australia and the Australian Capital Territory that addresses directly the issue of discrimination against people with disabilities. Basically, State anti- discrimination legislation aims to make it unlawful to discriminate on the grounds of physical and intellectual impairment. The existing provisions of State anti- discrimination legislation have been subject to certain criticism, especially in relation to: * definitional problems (Problems have arisen under the New South Wales Anti- Discrimination Act 1977 with the definition of 'physically handicapped person' which, for example, has resulted in "... a person with epilepsy [having to be] categorised as an intellectually handicapped person in order to bring his complaint under the legislation" 3. It has also been pointed out that "The focus of all the definitions is on the person's disabilities rather than abilities. This means that the legislation does not reflect the changes in the community, and particularly among people with disabilities, on the primary objectives and aims of the attempts to gain equal opportunity in all areas of life for people with disabilities".) 4; * complaint making (The State Acts do not recognise that advocacy or self- help groups should be able to lodge complaints on behalf of their members, 5 and that little use has been made of the legislation by people with longer term, moderate and severe disabilities.) 6; and * allowable acts of discrimination (Each State Act contains provisions that limit general provisions against discrimination. For example, the New South Wales Anti- Discrimination Act 1977, in relation to employment, contains a number of exemption provisions, including one that provides that when an employer is determining who should be offered a job, it will not, in certain circumstances, be unlawful to discriminate against an applicant who is disabled. The circumstances are set out in section 49I(1) of the New South Wales Act.
Section 49I(1) On such grounds as, having regard to the circumstances of the case, it was reasonable to rely, that the physically handicapped person, because of his [her] physical impairment - (a) would be unable to carry out that work; or (a) would, in order to carry out that work, require services or facilities which are not required by person who are not physically handicapped person and which, having regard to the circumstances of the case, cannot reasonably be provided or accommodated by the employer, principal or person
It has been noted by a number of commentators that these exceptions "... present an internal contradiction within the legislation, by providing an over- arching principle that it is unlawful to discriminate against a person on the basis of their disabilities but then specifically recognising potentially wide- ranging occasions where this principal can be avoided." 7
National Disability Discrimination Legislation - Rationale: In the Second Reading Speech to this Bill, the Minister provide rationale for the introduction of national disability anti- discrimination legislation, as proposed by this Bill. The Minister maintains that national legislation is necessary because of variations in the scope and coverage of State disability anti- discrimination legislation and State legislation does not provide comprehensive coverage for people with disabilities, due to the limited ability of the States to regulate discriminatory practices against Commonwealth authorities.
The rationale of the Minister largely mirrors those of the Labour and Disability Workforce Consultancy (the Consultancy) in its August 1990 report National Employment Initiatives For People With Disabilities - A Discussion Paper. The Consultancy recommended: * that the Commonwealth Government pass national, comprehensive legislation which provides that people with disabilities have the right to employment without discrimination; 8 and * in any development of national, comprehensive legislation provide rights in employment and other areas for people with disabilities, consideration be given to providing direct access to the Federal Court for a hearing when conciliation can not or should not proceed and that a determination by the Human Rights and Equal Opportunity Commission not be established as an integral part of the process.
The rationale for the Consultant's recommendations included that Commonwealth and State disability anti- discrimination legislation only goes some way to providing protection to disabled people, and that national legislation would ensure that the rights and remedies available to a person are not determined by place of residence.
Financial Impact: In the Explanatory Memorandum to this Bill it is estimated that the cost to Commonwealth revenue of the establishment of the office of the Disability Discrimination Commissioner, education campaigns, and support agencies required to assist disabled people enforce their rights under this Bill will be approximately $5.5 million in the first operational year. The financial impact on Commonwealth departments and private enterprise of this Bill is difficult to determine, largely due to the impact of the Bill being uncertain. It may be argued that the financial impact of this Bill will be minimal because of the large number of exemptions to its general anti- discrimination provisions.
Main Provisions Objects of Bill: The objects of this Bill are contained in clause 3 and include to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: work, accommodation, education, access to premises, clubs and sport; the provision of goods, facilities, services and land; existing laws; and the administration of Commonwealth laws and programs.
Key Definitions: The term ' disability' is defined in clause 4 to include: * total or partial loss of bodily or mental functions; * presence in the body of organisms capable of causing disease or illness; or * disorder, illness or disease that affects thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour (Note: The term 'disturbed behaviour' is not defined in this Bill). The definition also includes disabilities that presently exist, previously existed, may exist in the future, or are imputed.
The term ' employment' is defined in clause 4 to include: * part- time and temporary work; * contract work; * work as a Commonwealth employee; and * work as an employee of a State/Territory or instrumentality of a State/Territory.
(Note:The definition of 'relative' includes 'defacto spouse', which in turn is defined to include a homosexual couple. This is the first time in Commonwealth legislation that defacto relationships have been defined explicitly to include homosexual relationships. Please note in respect to his matter that a paper has been prepared by Mr Ian Booth of the Law and Government Group.)
Direct and Indirect Disability Discrimination: Direct disability discrimination will occur where a person treats or proposes to treat a person with a disability less favourably, in circumstances that are the same or not materially different, than a person without the disability (clause 5). Indirect disability discrimination will occur where a person requires a disabled person to comply with a requirement: * which a substantially higher proportion of persons without the disability comply or are able to comply with; * which is not reasonable in the circumstances of the case; and * which the disabled person does not or is not able to comply with (clause 6).
Application of this Bill: Clauses 12 and 13 set the limits for the application of this Bill. The term 'limited application provisions', as used in clause 12, is defined to mean Divisions 1, 2 and 3 of proposed Part 2 (clauses 15- 40) of this Bill, other than clauses 20, 29 and 30 that deal with federally registered unions, administration of Commonwealth laws and programs and requests for certain information from disabled persons. * Clauses 15- 17 will only have effect in relation to discrimination against Commonwealth employees and persons seeking to become Commonwealth employees. * Clause 19 will only have in effect in relation to discrimination by an authority or body exercising a power conferring, renewing, extending, revoking or withdrawing an authorisation or qualification under a Commonwealth law. * The limited application provisions will only have effect in relation to acts done by or on behalf of the Commonwealth; Administration of a Territory; or a public body or authority established by a Commonwealth/Territory law in the exercise of a power conferred by a Commonwealth/Territory law. * The limited application provisions will only have effect in relation to discrimination against a disabled person to the extent that they give effect to certain international conventions, including the Covenant on Civil and Political Rights, or fall within section 51 (xx) (the corporations power), section 51(xiii) (the banking power), section 51(xiv) (the insurance power), section 51(i) (the trade and commerce power) or 51 (xxix) (the external affairs power) of the Constitution. * Clauses 35- 40 will only have effect in relation to acts done in Australia involving person, things, or matters arising outside Australia. State/Territory disability discrimination laws will continue to operate to the extent that they are capable of operating concurrently with this Bill (clause 13). Where a complaint has been made or proceedings initiated under State/Territory legislation, the same complaint will not be able to be made or proceedings initiated under this Bill. Similarly, a person prosecuted and convicted for an offence under State/Territory legislation will not be able to be prosecuted and convicted for an offence under this legislation.
Unlawful Acts of Disability Discrimination: Clauses 15- 21 deal with employment related acts of disability discrimination, including discrimination: in employment generally (clause 15); against commission agents (clause 16); against contract workers (clause 17); in partnerships (clause 18); by Commonwealth/Territory authorities and bodies (clause 19); by federally registered trade unions (clause 20); and by employment agencies (clause 21). Disability Discrimination in employment generally. It will be unlawful for an employer or person acting or purporting to act on an employer's behalf to discriminate against a person/employee on the ground of his/her disability or disability of his/her relatives or associates:
(a) in arrangements made for the purpose of determining who should be offered work; (b) in deciding who should be offered employment; (c) in the terms or conditions on which employment is offered; (d) in the terms or conditions of employment that the employer affords the employee; (e) by denying the employee access, or limiting his/her access, to opportunities for promotion, transfer or training, or any other benefit associated with employment; (f) by dismissing the employee; or (g) by subjecting the employee to any other detriment. Exemptions: Paragraphs (a) and (b) will not apply to employment that requires the performance of domestic duties in premises in which the employer lives. Basically, paragraphs (b) and (f) will not apply where a disabled person cannot do the relevant job. This exemption will operate where the disabled person would not be able to carry out the inherent requirements of a particular job, or would to carry out those requirements, need services or facilities that are not required by a non- disabled person and the provision of these would impose an unjustifiable hardship on the employer. Note: Similar exemptions are provided under clauses 16- 21 in relation to discrimination: against commission agents; against contract workers; in partnerships; by Commonwealth/Territory authorities and bodies; by federally registered unions; and by employment agencies.
Clauses 22- 29 deal with acts of disability discrimination in the areas of: education (clause 22); access to premises (clause 23); goods, services and facilities (clause 24); accommodation (clause 25); land (clause 26); clubs and incorporated associations (clause 27); sport (clause 28); and administration of Commonwealth laws and programs (clause 29). Disability Discrimination in Education: It will be unlawful for a education authority to discriminate against a person/student on the ground of his/her disability or disability of any of their relatives or associates: * by refusing or failing to accept their application for admission as a student; * in the terms and conditions on which it is proposed to admit them as a student; * by denying them access, or limiting their access to any benefit provided by the authority; * by expelling them; or * by subjecting them to any other detriment. Exemptions: It will not be unlawful to discriminate against a disabled person on the ground of their disability in respect of admission to an educational institution established wholly or primarily for students who have a particular disability where the person does not have that particular disability. In addition, it will not be unlawful to refuse or fail to accept a disabled person's application for admission at an educational institution if their admission would require services or facilities that are not required by non- disabled students and the provision of which would impose an unjustifiable hardship on the authority.
Disability Discrimination in Sport: It will be unlawful for a person to discriminate against a person on the ground of a disability or disability of their relatives or associates by excluding them from a sporting activity. Exemptions: No unlawful act will have been committed if the disabled person is: not reasonably capable of performing the actions reasonably required in relation to the sporting activity; if the persons who participate or are to participate in the sporting activities are selected on the basis of their skill and abilities relevant to the sporting activity, and relative to each other; or if a sporting activity is conducted only for persons who have a disability or particular disability and the disabled person does not have that disability. Similar exemptions are provided under clauses 23- 27 in relation
to access to premises; goods; services and facilities; accommodation; land; and clubs and incorporated associations.
Disability Standards: The regulations may prescribe standards in relation to certain matters, including: * the employment, education and accommodation of persons with a disability; * the provision of public transport services and facilities by the Commonwealth, State, Territory, Commonwealth authority, State instrumentality, Territory authority, or any other person (clause 31). It will be unlawful for a person to breach a disability standard (clause 32), and where a person acts in accordance with a disability standard, proposed Part 2 of this Bill (clauses 15- 65) will not apply to his/her act.
Unlawful Acts of Disability Discrimination Involving Harassment: Clauses 35- 40 are provisions that make it unlawful for a person to harass a disabled person in the areas of employment (clauses 35 and 36), education (clauses 37 and 38) and provision of goods and services (clauses 39 and 40). For example, in relation to harassment in education, clause 37 provides that it is unlawful for a person who is a member of the staff of an educational institution to harass a person who is a student or seeking admission and has a disability. It should be noted that the term 'harassment' is not defined in this Bill.
Offences: Clause 42- 44 establish offences relating to victimisation (clause 42), incitement to do unlawful acts (clause 43) and advertisements (clause 44). Victimisation: It will be an offence, punishable by a maximum term of imprisonment of six months, for a person to victimise another person. An act of victimisation will be taken to have been committed if a person subjects, or threatens to subject another person to any detriment because of certain reasons, includes that the person: * has made, or proposes to make a complaint under this Bill; * has appeared, or proposes to appear, as a witness before the Human Rights and Equal Opportunity Commission; or * has made an allegation that a person has done an act that is unlawful under proposed Part 2 (clauses 15- 58) of this Bill. Advertisements: It will be an offence, punishable by a maximum fine of $1 000, for a person to publish, display, or cause or allow to be published or displayed, an advertisement or notice that indicates, or could reasonably be understood to indicate, an intention by that person to do an unlawful act under Divisions 1- 3 (clauses 15- 40) of proposed Part 2 of this Bill.
Exemptions: Positive Discrimination: The effect of clause 45 will be to allow acts of disability discrimination where those acts are reasonably intended to do certain things, including ensuring that disabled persons have equal opportunities with other persons. Acts Done Under Statutory Authority: It will not be unlawful to discriminate against a disabled person where the unlawful act is done in compliance with: a determination or decision of the Commission; an order of a court; or an order or award of a court or tribunal that has power to fix wages for persons who would otherwise be eligible for a disability support pension (clause 47). Clause 47, which will cease to operate three years from its commencement, will also allow disability discrimination where a person discriminates in direct compliance with a Commonwealth, State or Territory law or regulation. Infectious Diseases: It will not be unlawful to discriminate a person on the ground of that person's disability if the disability is an infectious disease, and the discrimination is reasonably necessary to protect public health (clause 48). Telecommunications: It will not be unlawful for a carrier or supplier of an eligible service under the Telecommunications Act 1991 to discriminate against a person on the ground of their disability in the provision of telecommunications services (clause 50). The exemption provided under clause 50 will cease to have effect three years from the commencement of that clause. Combat Duties and Peacekeeping Services: It will not be unlawful for a person to discriminate against a person on the ground of their disability in relation to employment, engagement or appointment in the Defence Force: * in a position involving combat duties, combat- related duties or peacekeeping service; * in prescribed circumstances in relation to combat duties, combat- related duties or peacekeeping service; or * in a position involving the performance of duties as a chaplain or medical support person in support of forces engaged in combat duties, combat- related duties or peacekeeping services (clause 53). 'Combat duties' is defined to mean duties declared by regulation to be combat duties.
Exemptions Authorised by Human Rights and Equal Opportunity Commission: Clause 55 provides that the Commission, on application, may grant an exemption from clauses 15- 30 and 33 and 34. An exemption, or further exemption where the original is extended, may: be granted subject to such terms and conditions as specified in the grant; be applicable only in such circumstances and in relation to such activities as specified in the grant; and be granted for a specified period not exceeding five years. Decisions of the Commission under clause 55 will be reviewable by the Administrative Appeals Tribunal (clause 56).
Action Plans: Clause 60 provides that a service provider (i.e. a Commonwealth department; a State department; public authority of the Commonwealth or instrumentality of a State; or person who provides goods or services or makes facilities available (note the term facilities is not defined in this Bill) may prepare and implement an action plan. An action plan is to include provisions relating to certain matters, including: the devising of policies and programs to achieve the objects of this Bill; and the review of practices within the service provider in order to identify any discriminatory practices (clause 61). A service provider may, at any time, amend its action plan (clause 63).
Inquiries and Civil Proceedings: Proposed Part 4 (clauses 66- 106) deals with complaints and inquiries procedures. The proposed complaints and inquiries procedures are similar to existing Commonwealth anti- discrimination legislation. The key feature of proposed Part 4 is that administration of this Bill will be vested in the Commission. To this end, additional functions are conferred on the Commission by clause 67 including to: * inquire into alleged infringements under proposed Part 2 (clauses 15- 58) of this Bill, and to endeavour by conciliation to settle such matters; * to exercise the powers conferred on it by clause 55; and * to promote an understanding and acceptance of, and compliance with, this Bill.
Disability Discrimination Commissioner: Clauses 113- 120 deal with the office of Disability Discrimination Commissioner. Clause 113 provides for the appointment, by the Governor- General, of a Disability Discrimination Commissioner (the Commissioner). Functions: The functions of the Commissioner are contained in clause 67 and include to inquire into alleged infringements under proposed Part 2 (clauses 15- 58) of this Bill, and to endeavour by conciliation to settle such matters; and to do anything incidental or conducive to the performance of any of the other functions conferred by clause 67 on the Commission (clause 68).
Miscellaneous Matters: Liability of Persons Involved in Unlawful Acts: A person who causes, instructs, induces, aids or permits another person to do an unlawful act under clauses 15- 40 will be taken to have done that act (clause 122).
References 1 2. The definitions of 'disability' and 'handicap' used in the Australian Bureau of Statistics Survey were based on World Health Organisation recommendations. For the purposes of the Survey, a disabled person was defined to be "... a person who has one or more of a group of selected impairments and disabilities which have lasted, or are likely to last, for six months or more. Examples of disabilities include: loss of sight (even when wearing glasses or contact lenses); loss of hearing; incomplete use of limbs or digits ...". For the purposes of the Survey, a handicapped person is defined as "... a disabled person aged 5 years or over who is limited to some degree in his/her ability to perform certain tasks in elation to one or more of the following five areas: self care; mobility, verbal communication; schooling; and employment."(Australian Institute of Health, Australia's Health 1990, December 1990, p. 20.) 3. Labour and Disability Workforce Consultancy, National Employment Initiatives For People With Disabilities - A Discussion Paper, August 1990, p. 88. 4. Ibid., p. 89. 5. Ibid. 6. Ibid., p. 90. 7. Ibid., p. 91. 8. Ibid., p. 101.
Bills Digest Service 7 July 1992 Parliamentary Research Service This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Commonwealth of Australia 1992.
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Published by the Department of the Parliamentary Library, 1992.