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Legal and Constitutional Affairs Legislation Committee
23/01/2013
Human Rights and Anti-Discrimination Bill 2012

GIANNI, Mr Stephen, National Policy Officer, Australian Federation of Disability Organisations

HALL, Ms Lesley, Chief Executive Officer, Australian Federation of Disability Organisations

PHILLIPS, Ms Julie, Manager, Disability Discrimination Legal Service and Villamanta Disability Rights Legal Service

CHAIR: Welcome. We will reconvene this public hearing into our consideration of the draft Human Rights and Anti-Discrimination Bill. We have numbered your submissions Nos 309 and 366 for our purposes. I invite you to make some very brief opening comments and talk to us about your submission, then we will go to questions.

Ms Hall : Thank you for the opportunity to present today. AFDO is the peak national body for people with disability. We are funded by the Commonwealth government and our membership consists of other national organisations and state organisations that represent people with diagnostic disabilities—different disabilities—as well as demographic things such as people from non-English-speaking backgrounds.

Firstly, we support the consolidation of the legislation. We think it is a great opportunity to move forward and it will certainly assist our constituency in their endeavours to get their basic human rights. We are particularly pleased about the intersectionality of the attributes and also the addition of sexual identification. That is one of the attributes. We are pleased about this because people with disability come from many different attributes and include people who have different sexual identities.

There are a range of things that we are concerned about. We are concerned to keep the current protections that exist within the DDA and we want to strengthen those protections, particularly around reasonable adjustments. We also want some of the protections that are there for other attributes to be extended to people with a disability, in particular around vilification and the attribute for people with different racial identities. We believe that protection should be extended to people with disability.

Our main concerns are about access to justice under the legislation. People with a disability mostly come from very impoverished backgrounds. We do believe that for this legislation to be effective for people with a disability it has to be affordable to them and it has to be accessible to them and that the affordability and accessibility come down to things like costs. We believe that people with a disability should not under any circumstances be required to pay costs.

We are also concerned that there are no exemptions in the legislation and that is one of the things that we are happy to explore further. I will leave it at that for the time being.

Ms Phillips : I just want to note that our principal solicitor was due to come with me today and he is ill, so I might have to take some questions on notice.

We are a very small community legal centre, and all we do is discrimination matters. We would say that the case law reflects that the DDA has not been successful in achieving its objectives. We note that a Federal Court judge in open court made a comment about the legislation, saying that it was, in his opinion, inadequate in its current form, and we agree.

Last year, in the Federal Magistrates Court a deaf woman made a complaint against a public hospital for the right to an Auslan interpreter. She lost that case, and, apart from the fact that the right to a sign language interpreter is enshrined, we thought, in domestic legislation but also international, she had a costs order made against her as well. I guess that is an example of the two main issues that we have with the current legislation—that is, the inadequacy of the legislation and the system that means that probably a deaf person would not in the future dare to make a complaint in relation to their right to an interpreter because of this example of costs.

So we are excited about the opportunity to change both the system and the legislation and we are very happy to be here.

CHAIR: That is great. We will go to questions.

Senator HUMPHRIES: You have made the point—certainly you, Ms Hall, did—about the paying of costs and you argue there should be no awarding of costs against a complainant in a disability discrimination matter. Do you accept that there are such things as vexatious claims? If there are, what should the law do to discourage people from making such claims?

Mr Gianni : We note that in the legislation that exact point is covered, in that, at any point during the process—as I read it anyway—a vexatious claim can be stopped and discontinued by the Australian Human Rights Commission or by the court.

Senator HUMPHRIES: But, by its nature, a vexatious claim probably will not succeed anyway, so the person who brings it is going to fail at some point in the proceedings, if it truly is vexatious. But, if it is simply terminated, that does not necessarily defeat the purpose of the person bringing the claim for vexatious reasons, given particularly the fact that, for every claim that actually reaches a tribunal or court, there might be nine that have to be settled because of uncertainty before that point. So, short of actually just rejecting the claim, even part-way through the proceedings, should there be other mechanisms to discourage vexatious claims? In other legislation—and I think in this legislation hitherto—there was the capacity to award costs against a party who had brought an unmeritorious and intentionally unmeritorious claim. Why shouldn't that provision still be in the legislation?

Ms Phillips : We do not object to that provision. For example, VCAT currently is seen as a no-cost jurisdiction but there are exceptional circumstances that cover that sort of thing. We accept that there are vexatious litigants and we believe that, in exceptional circumstances such as those, costs orders should be open. But we would like to start from the main plank that it is a no-cost jurisdiction in terms of the applicant. But we have no objections to the point you are making there.

Mr Gianni : Just to clarify it for me, Senator, are you of the view that the attribution of costs is the way to stop vexatious litigants?

Senator HUMPHRIES: I am not putting a view. With respect, it is us who are seeking your views. I am simply saying to you: if you accept that there are such things as vexatious litigants, does there not need to be something to discourage them from proceeding to make vexatious claims? At the moment, there is the capacity to award costs against them if the tribunal feels that they have wasted the court's time and, for that matter, the expenses of the party that they have brought a claim against.

Ms Hall : The other issue that I think we would want to raise is what the definition of a vexatious claim is, because certainly some claims that are deemed to be vexatious we would consider not to be vexatious.

Senator HUMPHRIES: When you say they have been deemed to be vexatious but you dispute that definition, do you mean the courts have deemed them to be vexatious?

Ms Hall : No, I do not mean the courts. But certainly other people perceive them as being vexatious. What we want is a fairly strict understanding of what might be a vexatious claim.

Senator HUMPHRIES: But that is what the courts are there to determine. Have you got any examples of where courts have found claims to be vexatious that you would not consider to be vexatious?

Ms Hall : I cannot give you any specific examples at this stage.

Senator HUMPHRIES: You might take that on notice if you like. You suggest the setting up of a human rights fund to assist people in support of the lodging of discrimination complaints. How would that work? Who would assess what is meritorious and worthy of funding and what is not?

Mr Gianni : In a similar way to the way the fund operates now: legal aid for the state jurisdiction.

Senator HUMPHRIES: Legal aid is not available just for applicants; it is also available for defendants in certain circumstances, isn't it? But you have advocated that it be only for applicants, or complainants?

Mr Gianni : Yes, so that would be the case for people with disabilities.

Senator HUMPHRIES: Why?

Mr Gianni : Because of the points that we make about the position that people with disabilities find themselves in in the community. They are an extremely poor sector of our community. They are people who experience a great deal of justice and discrimination. The idea that they might incur costs, or need to try and find people to do pro bono work for them, holds them back from making submissions.

Ms Phillips : If you look at the Victorian Auditor-General reports of 2007 and 2012 on the state of education for children with disabilities in Victoria, and the Victorian Equal Opportunity And Human Rights Commission report last year, you will find that there is a consensus among some that education opportunities for people with disabilities are extremely poor, so obviously they are going to fall into a low-socioeconomic group. It is not only money for lawyers that sometimes is required; even if one finds, for example, a no win no fee law firm to take something on, costs such as transcripts, expert reports, video conferencing and things of that nature preclude people with disabilities from having access to the justice system. Even if they do find lawyers and barristers—and that is a problem—there are also these costs, which can add up to thousands of dollars. So, even if the law is perfect, if you have got a system that does not allow you to access it, there is really no utility in it. We think applications should be able to be made to a fund for reasonable costs, and if individuals have to show some evidence of their financial state, I think that it is reasonable as well.

Senator HUMPHRIES: Ms Phillips, you said in your submission that you do not support exceptions for people with a disability in clause 40 in relation to defence and peacekeeping. Why do you argue for that?

Ms Phillips : It is a bit the same as employment: there is obviously going to be the need for an inherent requirement for somebody to undertake the duties that they are required to do. In the police force, for example, we have had a number of complaints; in that situation I think it is similar. There are all sorts of positions in peacekeeping, and some of them will require some skills and duties and some of them will require others. If someone has a disability but is still able to perform those requirements, I think that probably needs to be tightened up—and that would be acceptable, as it is in employment. But generally speaking we find that, with the police force for example, a disability is used without any thought going into whether that person is able to do the job. If it were rephrased in order to protect both parties, that is a possible win-win for everybody, but we recognise that there could be times when one particular person due to a particular disability may not be able to meet the requirements of that particular position, and we are fine with that.

Senator HUMPHRIES: The requirements for the Defence Force, for example, in theory at least, are that every uniformed member of the Defence Force is capable of meeting certain fitness requirements. Obviously some have a greater capacity than others, but the intention is that everybody who joins and maintains membership of the Defence Force has a certain level of physical capacity to do a range of things, even if they are working at a desk all the time. I suppose the presumption here is that a person with a disability will be assumed not to have that capacity, and presumably the onus then falls on the person making the claim to demonstrate that there is some capacity for them to perform that role.

Ms Phillips : And they may pass the fitness regime because they may have a disability such as diabetes or a non-physical disability. Our experience, in relation to the police force for example, is that everyone has to pass the fitness test, but then some go into an area where they never have to be fit again and are not so. So I think just a sensible approach to those sorts of things is needed.

Senator PRATT: I would like your views on the restrictions on representative actions. It largely means that people are denied the opportunity to have an organisation represent them directly—for example, unions et cetera.

Ms Phillips : We do not agree with it. We do not see that there is a need for it. We particularly support an organisation being able to do these things on behalf of people with disabilities—and I will hand over to AFDO after this, because I am sure they have a view as well. There are a whole lot of reasons why some people with disabilities are not equipped in many ways to run these sorts of complaints. One that comes to mind is somebody who is unwell with a mental illness. The stress and strain and the behaviour of some respondents are significant. It really is a huge burden that goes on sometimes for a number of years. It is obviously going to benefit people with disabilities and allow them to use the law, which they may not have felt they can use themselves, if an organisation can act on their behalf. If there is a systemic problem in relation to policies that are discriminatory or practices that are affecting a lot of people, to be honest, it just makes sense, for a number of reasons, for a group to be able to run one case rather than have to rely on 20 people to run a case—economically as well.

Ms Hall : The other aspect of it is that with individual claims that may be settled either at conciliation or beyond that—and quite often there are confidentiality agreements, including in those settlements—what we find is that those particular settlements have no effect on the overall structural barriers that occur and that the practice continues. There are numerous cases, for example, around education where individuals have taken out complaints but the practice still continues in the overall system. It is just not the way to achieve structural change. We believe that this legislation has a role to play in structural change, and that should be done through representation.

Senator PRATT: That could be not only through representative actions but also through not limiting claims to individuals.

Mr Gianni : Yes, encouraging the capacity for organisations to intercede at points during the proceedings and for individuals to join them.

Senator PRATT: So that other applicants could join a case?

Mr Gianni : Yes.

Senator PRATT: That, Ms Hall, would be much more influential on the kinds of situations you are talking about, where systemic discrimination continues, possibly sometimes even within the same organisation.

Ms Hall : I am finding it difficult to hear, I'm sorry.

Senator PRATT: I beg your pardon. My comment, which is a question also, relates to if you have other applicants that can join a case, that would help address the systemic discrimination that continues despite the fact that complainants may have had successful cases in the past.

Mr Gianni : Yes, it would be very practical.

Senator FURNER: In your submissions you indicate that the development of specialist disability legal centres should be funded. Have you done any costings?

Mr Gianni : We have already got them, so what we are suggesting is that they be further supported so that they receive an increase in funding to be able to provide the support required for people with disabilities to make their applications.

Senator FURNER: What sort of increase in funding are you proposing?

Mr Gianni : We have got one of the legal services here. I expect she would say treble it! They are funded a pittance.

CHAIR: You should probably give us whatever figure you like. Whether we could do anything about that is another thing. But get that big ambit claim out there.

Ms Hall : The other issue is that there are also gaps in the disability legal service representation. For example, at the national level the only body that deals with HIV-AIDS is based in New South Wales. It is an organisation that has been able to build up very specialist experience and advice around people living with HIV and AIDS. Yet in the other states it requires the more general disability legal services to respond to it. In terms of everyone's huge case load it is very difficult and it is difficult to build up the body of knowledge that is required at times around particular issues.

Ms Phillips : Just to answer the question about funding, all I can say is we are 2.6 full-time staff for the state of Victoria and one of those people is an admin person and one of them is me, which leaves two solicitors who are not full-time. As you can imagine, we are not in a position to do a lot of litigation. Employment and education cases can often run for between a week and four weeks and there is just no way we can do that. There is a significant difference between someone being able to access a free legal centre and not. They have got two choices: pro bono and no win, no fee. On pro bono I am generalising but you tend to have difficulty getting pro bono for significant cases. You tend to get barristers who might be junior and wanting some work and have some time. I am generalising; someone will give me some examples of some quite eminent barristers who have worked pro bono. But that is a difficulty. It also means sometimes getting on board legal people who are not familiar with discrimination and, if they are, not familiar with disabilities and have a significant learning curve to understand the issues themselves. On no win, no fee, they are sometimes very difficult to get. If there was a no-cost jurisdiction completely in the Federal Court they would not be doing this work at all, so that would cut them out. So we probably would ask for our funding to be trebled, or pick a figure and we would appreciate it. But with 2.6 for the state of Victoria our hands are tied much of the time and legal aid is not able to step in very often.

Mr Gianni : That is why we think that two-pronged approach is particularly important, extra support for the community legal centres that work in disability and the funding of legal aid.

Ms Hall : And particularly when you do this in the context that the majority of discrimination cases that come up are around disability. So it is quite significant.

Senator WRIGHT: Thank you. That highlights for me that the issue about having protections in law is the ability to actually then pursue those so that they are not just rhetoric but can actually be realised on the ground for people whose lives are affected by discrimination.

I would like to ask you, Ms Phillips, some specific questions in relation to your submission. One of them is about a fairly straightforward statement that you do not support exceptions for people with a disability in relation to the insurance and superannuation exceptions in clause 39. Could you elaborate on that, please.

Ms Phillips : Yes. I am reminded of a girlfriend of mine who lives in the States and was denied insurance because she filled out a form and admitted to having migraines, which really was fairly nonsensical. Therefore she could not get health insurance. I think that when insurance companies are allowed to legally discriminate against people with disabilities we find that there is a heavy hand about the slightest disability that they believe may cause them to pay out money. With the definition of disabilities, many people have a disability of one sort or another. Some are your traditional disabilities, and there are others which some people would not perhaps classify as a disability but do meet the definition. I think that to deny a whole section of the community insurance due to a disability is quite severe. I also think about genetic diseases and the interest in those, the predictions of disability and the reluctance to be interested in covering those as well. I feel that it is far too severe, is used unfairly and cuts a whole portion of the community out, and I do not think that is reasonable.

Senator WRIGHT: Can I also take you to another aspect of your submission, where you state that you believe that the attribute of criminal record should be included in the list of protected attributes. Could you just elaborate on that and whether in fact that has some kind of particular relevance to disabilities or whether it is just an additional comment that you have made.

Ms Phillips : We have clients who have disabilities and criminal records, and sometimes they have criminal records because of their disability. When I say that, there are a lot of young men, for example, with—if you look at the research—language disorders, mild intellectual disabilities or high-functioning autism who are involved in the criminal justice system for various reasons. One is to do with a lack of education—and that goes back to the paucity of our education—and illiteracy; other reasons are that they are naive and are persuaded to do silly things. Other examples are people with mental illness who, while unwell, have done something that has breached the law. So there are a number of people that we see that have a criminal record.

I understand that employers are not keen on this and will say, 'Why should we have someone who has broken the law working for us?' If I were hiring an accountant and I saw that they had been convicted of fraud and money laundering, I probably would not be too keen, and I think it would be reasonable to suggest that I would not want to hire that person. But if I wanted to hire an accountant and when they were 17 they were arrested for being drunk and disorderly and breaking into a milk bar, and they are now 35, I think it is not reasonable. So again, as with other things, there will be some times when it is very reasonable, depending on the charge and the conviction, depending on what you want to hire a person for who may have had a disability. It is reasonable in some cases. Where it is just totally irrelevant, it seems unfair in those cases to be able to just say, 'No, we can deny you this position on the basis of your criminal record.' At other times it will be reasonable. So we do not believe there should be a blanket ban.

Senator RYAN: Ms Phillips, the query I would have is that, to use that criminal record example that you referred to there, we are effectively going to be substituting the judgement of an officer appointed by the Commonwealth for the judgement of the person who might be making that employment. It becomes increasingly difficult, particularly for SMEs that do not have an HR department or do not have expertise or guidance on these issues, to make a decision that gives them a degree of confidence that they cannot be litigated against. Secondly, it is very rare that someone will explicitly give a reason that someone might not get a job. So we have officials, as a result of the reversal of the onus of proof, trying—to use a famous phrase—'to peer into the windows of many souls' and find what motivated this decision. Doesn't that pose a real risk that we are going to be dragging a lot of people into the net of litigation, who, on the other side, might be SMEs or family businesses that do not have the resources and capacity—and may experience financial hardship, as you described some of your constituents as having—and would be unable to take legal action? I have noted that another one of the things that you have suggested is the need for funding for people to take legal action but no-one ever seems to suggest that a small family business that might only make a profit of $80,000 or $90,000 a year faces many of the same challenges as an individual.

Ms Phillips : You have raised a few points there. To address your last one first, if I look at the history of complaints and decisions, I do not find that this is an issue—I do not want to use the word 'important' because I know it is important to them—commonly people are concerned about it. You are quite right: often employers do not tell people why they have not got a job, and that is why direct discrimination is so impossibly difficult, often. People are clever, and even if they do not want to employ the receptionist in the wheelchair they are not going to say, 'We're not employing you because you are in the wheelchair.' They make up something else. That is an issue that I do not think that we can get around. And they are often almost impossible to prove, to be quite honest. So I think if you look at the history of it you will see that the law is on the side of the SMEs because, unless you have some tangible evidence, how do you prove that is someone is discriminating against you on a particular basis if they do not make it clear?

Senator RYAN: We have seen with unfair dismissals that SMEs are particularly fearful—regardless of whether, as some would assert, it is not well grounded, the fear is there—that an environment where you have a no-cost jurisdiction and you have a reversal of the onus of proof, because once the prima facie case is established there is a reversal in the sense that someone must establish that they have reasonable grounds for the decision, that it is not just the decision but the actual process that is the great fear.

So, a small retailer may genuinely believe that they did not discriminate but, due to the fact that in this debate we are using the term 'discrimination' very differently to what the person on the street understands—'formal' versus 'substantive' and the impact of decisions as to opposed to whether people were treated equally—they fear the process: the cost in time and stress and the financial cost. Many small businesses have an income level that is not far different to an average wage.

Ms Phillips : I cannot comment on unfair dismissal, and I acknowledge the fear and concern, however I do not think the fear and concern is enough to stipulate what goes in. Even with the reversal of proof, obviously there are people who come to see us and in the end, after looking at everything—or perhaps at the end of a conciliation when we have the evidence, let's say in a small business claim—we say to them, 'Look, you may or may not be right that this person discriminated against you but they have been able to articulate why you did not get the job and they have provided us with the applications of the other people who did. It clearly shows here that they required a BA in this and you did not have it. So you are not going to be able to prove that this is due to a disability, or a criminal record and a disability.'

Now, even if the onus of proof is on the shop-owner, let's say, if they have not discriminated against someone they should be able easily to articulate why it was that they chose one person over another. Therefore, if they are doing the right thing I do not think that their fears are justified, because they will be able to make their case.

Senator RYAN: There are two things there, though. Firstly, with respect, I think you undervalue the time for a person who runs their own business: this might suck up weeks of their time. I am not trying to dismiss the grievance of the person who may or may not have been discriminated against. But this may take up weeks of the business person's time, for which they have no capacity—they do not have built-in redundancy with other managers who can step in.

Secondly, we then get to this challenge. Let us say that a business person, to use your example, said, 'I wanted this person to have a BA,' and the person who was alleging discrimination did not have that. We do then get to a slippery slope where the judgement of an official gets substituted for the judgement of the employer. So if that job was, say, for a receptionist or someone standing behind a till in a retail outlet, the official may say, 'I don't think that was a reasonable request, a reasonable criteria, of the employer.' Those decisions start to creep in. So we would be seeing a reduction in the capacity of someone to set a criterion, before any applicants have come in, which is questioned almost purely because someone is alleging discrimination.

Ms Phillips : There are a couple of things. In relation to judgement and an official making a judgement in preference to the person on the spot: I guess that is what happens in every other area of the legislation anyway. That is just what happens. In the end, it is a court, rightly or wrongly, that makes a decision about whether an action by somebody, whether it is a small business owner or a teacher or somebody else, has been reasonable or not.

In relation to the time and effort, I think to myself: 'We are 2.6. I am a manager. Our organisation has to comply with lots of legislation as well.' Once you set yourself up to do so and you make sure you know what your relevant legislation is and you put in practices to abide by it, it is not as heavy a duty as everyone is, I think, making it out to be.

In terms of employment, usually people advertise for positions and they put clearly, in a position description or an ad, what qualities or requirements are necessary for that job before they meet anyone with a disability or a criminal record, or interview. So, in my opinion, it is not that difficult for somebody to say, 'We had this requirement; we posted it before we interviewed; there was a good reason as to why we had it.' I think history has shown us, in terms of discrimination claims, that they will not have the difficult time that I think they are concerned about. But the opposite scenario is: if we do not have this then small businesses will be able to discriminate at will, and I think that that is unacceptable.

Mr Gianni : Could I add something there?

Senator RYAN: There is one quick point I want to make. If you look at the great majority of smaller businesses, they are in hospitality and retail. A lot of their job ads are 'Help wanted' written with texta or printed and put in a shop window. They do not have job criteria like we might, even though you have 2.6 staff, where you have processes. I suppose, when you say you do have processes in place, this legislation is not a consolidation; it is a dramatic expansion of protected attributes which a small business would have to take into account tomorrow if this became law today that they would not have had to take into account today.

Ms Phillips : In terms of reasonableness, there are probably many good reasons why a small business should not just put up a texta sign saying, 'Help wanted', or, in addition to that, should have a position description, which might take them 10 minutes to type up and which they can use for the next five years. Again, I do not think this is a burden that is onerous, and I think that they are precautions that, for many reasons—unfair dismissal; a whole lot of reasons—perhaps should be addressed by small businesses anyway, as I have to do in my capacity as manager of a 2.6 organisation.

Mr Gianni : Senator, what I wanted to add in listening to the interaction was that I think it is important to point out that SMEs or small businesses in Australia make a wonderful contribution to the employment of many people in our community and many people with disabilities, and most of them, by far, do not discriminate. Most of them are, in fact, really able to provide a terrific working environment for those people that they employ. In fact, many small to medium enterprises in Australia are owned and run by families who have experienced enormous discrimination in their own time and have a deep and real understanding of what discrimination means in Australia—a personal understanding of that. That is why I think many of them make such terrific employers.

CHAIR: We do not have any other questions for you and we need to get to our next witness today with this busy schedule. I thank all of you very much for your two submissions and for making yourselves available this morning. We appreciate that, thank you.