DARU Conference - 26 March 2012 Twenty Years of the Disability Discrimination Act

1. Evaluating the DDA: Where is it now, and how did it get here? Beth Gaze, Associate Professor Melbourne Law School, University of Melbourne DARU Conference - 26 March 2012Twenty Years of the Disability Discrimination Act

2. The DDA after 20 years • Origins and hopes for the Act • How was it supposed to bring about social change? • How has it fared in operation: • ‘legal’ advances – case law and legislative amendments • Broader context – advances within the framework set by law • Current status: • how useful is the Act? • what are the problems?

3. DDA 1992: Innovations and achievements at the Act’s adoption • Innovations • Uniform national disability discrimination law • Improved many areas of disability discrimination law • Prohibits direct and indirect disability discrimination • permits some special measures • Introduced the formula of requiring special services or facilities limited only by unjustifiable hardship • Provision for Standards, Action plans • Disability Discrimination Commissioner

4. What is the DDA intended to achieve? How does anti-discrimination law bring about change? • Change is needed at two levels: • Broad – group or society wide; systemic change • Individual – protect the rights of individuals who are affected by discrimination • The two levels are interdependent • Mechanisms of change: • legal decisions, legislative change, and bargaining in ‘the shadow of the law’ • development of guidelines, codes of practice and educative processes • the role of the DD Commissioner is extremely important. • What level of change and by what mechanisms does the DDA approach this task?

5. Some problems with the DDA: substance of the law • The scope of the law • Coverage limited in some areas • no protection against vilification • no explicit requirement to provide reasonable adjustments; • omissions such as the absence of a defence of unjustifiable hardship in relation to an already enrolled student • No requirement to take positive action • No public agency to assist with enforcement • Overall: extent of change the law requires is not clear

6. Some problems with the DDA: enforcing the law • Problems of process • Lack of public enforcement assistance means that enforcement is left entirely up to the disadvantaged individual • Since 2000 cases have to go to the Federal Court or Federal Magistrates Court of they do not settle at conciliation in the AHRC • Relatively formal process • Need for legal representation • Costs awarded against the loser • Lack of or limited legal aid • merits test requires ‘public interest,’ generally requires a group to be affected – denies the significance of human rights claims • Legal aid provision varies between states and territories • Disparity of size and resources of parties to DD cases • power imbalances not addressed by the DDA or the Courts

7. Litigation history since 2000:decision of substantive claims High Court • 2 cases – both unsuccessful – success rate of 0% • Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 • X v Commonwealth of Australia (1999) 200 CLR 177 Full Court of the Federal Court • 12 cases (including Purvis), 2 successful – success rate of 17% – both involve schools and accommodation for hearing impairment • Hurst v Queensland (2006) 151 FCR 562; [2006] FCAFC 100 • Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197 Federal Court • 47 Cases, 8 successful (includes Clarke and Hurst) – success rate of 17% Federal Magistrates Court • 21 successful cases– many more unsuccessful

8. The result – enforcement today • Unlike HREOC tribunal (pre 2000), the federal courts are not seen as user friendly for people with a disability • Court interpretation of the laws: • lack of judicial understanding / sympathy with the law’s objects/ those the laws are designed to assist. • Technical approach to interpretation • Courts state that decision only applies to the facts of the case • Result: the only avenue for enforcement is individual litigation, but this has not been effective to apply pressure for change. • In the cases that are successful, damages awarded have been very low – no incentive to enforce the law • While state and territory jurisdictions have no-cost enforcement through tribunals, their legislation can be weaker, and awards lower.

9. 2009 Amendments • Not yet tested in litigation • To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability • New definitions of reasonable adjustment, unjustifiable hardship • Implicit obligation to make reasonable adjustments • Failure to make reasonable adjustments incorporated as an aspect of both direct and indirect discrimination • New definition of indirect discrimination based on the SDA model • condition or requirement P cannot meet because of their disability, • effect of disadvantaging • R has onus of proof that the condition or requirement is reasonable • General exceptions for inherent requirements (s.21A) and unjustifiable hardship (s .21B) • 2011-12 Consolidation process

10. Do the courts and legal system comply with the DDA? • Do courts provide a service? • Registry / judicial officers • Do they impose a condition or requirement? • Eg that a person must have legal representation or must be able to interact as if they had no disability • Do the courts make reasonable adjustments for people with a disability? • What adjustments should they make?