Changes to federal disability discrimination law: implications for advocates

2. Amending legislation Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) In force 5 August 2009

3. Changes to the DDA Recognition of Disabilities Convention Definition of disability Changed definition of discrimination Reasonable adjustments New definition of indirect disability discrimination Discrimination in relation to associates New provisions dealing with assistance animals Employment agencies New requests for information section Disability standards

4. Changes to the DDA (cont…) Changes to exceptions: New inherent requirements exception New unjustifiable hardship defences Special measures Migration Action plans Accommodation providers

5. Recognition of Disabilities Convention The limited application provisions of the DDA have effect in relation to discrimination against a person with a disability to the extent that the provisions: (a) give effect to [ILO 111] (b) give effect to the [ICCPR] (ba) give effect to the Disabilities Convention (c) give effect to the [ICESCR] (d) relate to matters external to Australia (e) relate to matters of international concern Implication for advocates is that respondents are less likely to be able to mount a jurisdictional challenge to a disability complaint. Implication for advocates is that respondents are less likely to be able to mount a jurisdictional challenge to a disability complaint.

6. Grounds upon which discrimination is unlawful Disability Carer, assistant, assistance animal, disability aid Associate has a disability Including the additional grounds of carers and associates rectifies the problems in ForestIncluding the additional grounds of carers and associates rectifies the problems in Forest

7. Definitions of discrimination Direct discrimination Indirect discrimination

8. Direct discrimination Occurs when a person is treated less favourably on the basis of an attribute (such as disability) when compared with how a person without the attribute would be treated in the same or similar circumstances.

9. Indirect Discrimination A requirement or condition that applies generally but: with which a substantially higher proportion of people without the disability comply or are able to comply is unreasonable in all of the circumstances with which the aggrieved person does not or is not able to comply

10. Definition of disability Now includes: a genetic predisposition to a disability behaviour that is a symptom or manifestation of the disability Inclusion of manifestation partially codifies Purvis Inclusion of manifestation partially codifies Purvis

11. Reasonable adjustments New s 4(1) An adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. The EM says that it was thought until recently that the DDA always contained an implied duty to make reasonable adjustments – until the Purvis decision that said that there was no implied duty. New ss5(2) and 6(2) is the legislative response to the decision in Purvis v New South Wales Note it’s actually a cause of action for a failure to make a reasonable adjustment: not a pro-active obligation/duty. In practice for litigation - a) an aggrieved person identifies the adjustment(s); Note the Education Standards stress that there should be consultation at this stage. Before it gets to litigation, both parties need to actively discuss this. Sometimes hard for employees to know what adjustments will work in particular workplace without input from employers – suggest employers should have a referral point for this kind of discussion/expertise. b) a person who refuses or fails to make the adjustment(s) must demonstrate that making the adjustment(s) would impose an unjustifiable hardship upon them The EM says that it was thought until recently that the DDA always contained an implied duty to make reasonable adjustments – until the Purvis decision that said that there was no implied duty. New ss5(2) and 6(2) is the legislative response to the decision in Purvis v New South Wales Note it’s actually a cause of action for a failure to make a reasonable adjustment: not a pro-active obligation/duty. In practice for litigation - a) an aggrieved person identifies the adjustment(s); Note the Education Standards stress that there should be consultation at this stage. Before it gets to litigation, both parties need to actively discuss this. Sometimes hard for employees to know what adjustments will work in particular workplace without input from employers – suggest employers should have a referral point for this kind of discussion/expertise. b) a person who refuses or fails to make the adjustment(s) must demonstrate that making the adjustment(s) would impose an unjustifiable hardship upon them

12. Direct discrimination – reasonable adjustments New s 5(2) Direct discrimination on the ground of disability if (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. Implications for advocates: This looks like an indirect discrimination provision only worded in the converse. The Commission’s view is that the failure to make reasonable adjustments need not be ‘because of the disability’ but the reason why the failure to make reasonable adjustments disadvantages a person must be because of their disability – rather than some other reason such as the fact that they having caring responsibilities. In practice – The aggrieved person identifies adjustment(s) The respondent refuses or fails to make the adjustment(s) The respondent can argue unjustifiable hardship If the adjustments are reasonable, the aggrieved person must show that the failure to make the adjustments has the effect that the aggrieved person is treated less favourably than a person without the disability in the same circumstances; and That less favourable treatment is because of the aggrieved person’s disability. Implications for advocates: This looks like an indirect discrimination provision only worded in the converse. The Commission’s view is that the failure to make reasonable adjustments need not be ‘because of the disability’ but the reason why the failure to make reasonable adjustments disadvantages a person must be because of their disability – rather than some other reason such as the fact that they having caring responsibilities. In practice – The aggrieved person identifies adjustment(s) The respondent refuses or fails to make the adjustment(s) The respondent can argue unjustifiable hardship If the adjustments are reasonable, the aggrieved person must show that the failure to make the adjustments has the effect that the aggrieved person is treated less favourably than a person without the disability in the same circumstances; and That less favourable treatment is because of the aggrieved person’s disability.

13. Indirect discrimination – reasonable adjustments New s 6(2) Indirect discrimination on ground of disability if (a) requirement to comply with requirement or condition; and (b) because of the disability, the person would comply only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and (c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging people with the disability.

14. New definition of indirect discrimination – s 6 Replaces ‘proportionality test’ with disadvantage test Extends definition to proposed acts of indirect discrimination Inability to comply is ‘because of disability’ Shifts burden of proof of ‘reasonableness’ to alleged discriminator Disadvantage to persons with the disability Implications for advocates are that: It will include future discrimination that has not yet occurred, aligning the definition with the SDA and the direct discrimination definition in the DDA. The shifting of the burden of proof onto the respondent will mean that instead of complainants having to prove that a requirement or condition is not unreasonable; a respondent seeking to impose the condition or requirement will have to show that it the condition or requirement is reasonable. Implications for advocates are that: It will include future discrimination that has not yet occurred, aligning the definition with the SDA and the direct discrimination definition in the DDA. The shifting of the burden of proof onto the respondent will mean that instead of complainants having to prove that a requirement or condition is not unreasonable; a respondent seeking to impose the condition or requirement will have to show that it the condition or requirement is reasonable.

15. Discrimination in relation to associates New stand alone provision – s 7 Extends all of the DDA provisions to people who have an associate with a disability Exceptions – combat duties, peacekeeping services, assistance animals

16. Carers, assistants, assistance animals, disability aids New s 8 DDA applies in relation to having a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to having a disability

17. New provisions dealing with assistance animals - definition New s 9 Dogs or other animals that are: accredited under a State or Territory law to assist persons with a disability to alleviate the effect of the disability; accredited by an animal training organisation prescribed by the regulations; or trained to assist a person with a disability to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

18. New provisions dealing with assistance animals – exemptions New s 54A Not unlawful for a person to: request or require that the assistance animal remain under the control of the person with a disability or another person or treat a person with a disability less favourably because they reasonably suspect that the assistance animal has an infectious disease and the less favourable treatment is reasonably necessary to protect public health or the health of other animals

19. New provisions dealing with assistance animals – exemptions (cont…) S 54A Not unlawful to: ask for evidence that an animal is an assistance animal or is trained to meet standards of hygiene and behaviour discriminate if the person with the assistance animal fails to produce evidence of these things

20. New requests for information section New s 30 Unlawful to request information in connection with an act covered by the DDA if: people who do not have the disability would not be required to provide the information in the same circumstances and/or the information relates to the disability

21. New requests for information section (cont…) Not unlawful to request the information if: the purpose of the request was not discriminatory and evidence is not rebutted

22. Changes to exceptions New inherent requirements exception New unjustifiable hardship defences in s21B and s29A Special measures Migration Action Plans Accommodation providers

23. Inherent requirements Pre-August 2009: Defence only available in relation to: offer of employment dismissal

24. Inherent requirements Pre-August 2009: Discrimination not unlawful if because of their disability, the person: would be unable to carry out the inherent requirements of the particular employment or would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.

25. New inherent requirements exception (cont…) New s 21A Discrimination not unlawful if: the discrimination relates to particular work and a person is unable to carry out the inherent requirements of the particular work even if reasonable adjustments were made for the person

26. New inherent requirements exception New s 21A Defence now available in a broader range of work situations than just offer and dismissal: arrangements made for the purpose of determining who should be offered employment terms and conditions on which employment is offered when offering employment, promotion or transfers in the terms and conditions of employment dismissal

27. New inherent requirements exception (cont…) New s 21A However, defence does not apply to: denying access to opportunities for promotion, transfer or training denying access to any other benefits associated with employment; subjecting the person with disability to any other detriment

28. New inherent requirements exception (cont…) New s 21A(2) Factors taken into account to determine whether able to carry out inherent requirements: past training, qualifications and experience relevant to the particular work performance in working for discriminator if the person already works for the discriminator any other factor that is reasonable to take into account

29. Unjustifiable hardship Pre-August 2009 Unjustifiable hardship defence available: in some areas of work in some other areas of public life

30. Unjustifiable hardship Pre-August 2009 Definition (s 11) All relevant circumstances to be taken into account including: the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned the effect of the disability of a person concerned the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship in the case of the provision of services, or the making available of facilities--an action plan given to the Commission under section 64.

31. New unjustifiable hardship defence New ss21B and 29A Defence available in all areas except requests for information Two new factors to be considered in s 11 definition: availability of financial and other assistance disability action plans submitted by any respondent

32. Other exceptions Special measures (s 45) Migration (s 52) Action plans (s 59) Accommodation (s 25)

33. Other changes Name change 60 days to commence court proceedings Human rights complaints against Commonwealth for breaches of Disabilities Convention Also point out that the former HREOC Act is now the AHRC Act and that the DisCO is now a ‘human right’ for the purposes of the Commission’s functions. That means Advocates can lodge complaints at the Commission where acts of the Commonwealth or failures or refusals to act of the Commonwealth are inconsistent with or incompatible to Australia’s obligations under the DisCo. Advantages for advocates are: 1) its free; 2) experienced alternative dispute resolution staff can facilitate conciliation – has an education role; 3) reports are to the A-G and tabled in Parliament; Will allow the Commission to monitor Australia’s implementation of the DisCo. Implications for advocates is that you should be thinking about using both the DDA and the DisCo; Possibly think about lodging complaints under both where the Commonwealth is a respondent. Consistently check to see whether the DisCo will support you where the DDA cannot. Also point out that the former HREOC Act is now the AHRC Act and that the DisCO is now a ‘human right’ for the purposes of the Commission’s functions. That means Advocates can lodge complaints at the Commission where acts of the Commonwealth or failures or refusals to act of the Commonwealth are inconsistent with or incompatible to Australia’s obligations under the DisCo. Advantages for advocates are: 1) its free; 2) experienced alternative dispute resolution staff can facilitate conciliation – has an education role; 3) reports are to the A-G and tabled in Parliament; Will allow the Commission to monitor Australia’s implementation of the DisCo. Implications for advocates is that you should be thinking about using both the DDA and the DisCo; Possibly think about lodging complaints under both where the Commonwealth is a respondent. Consistently check to see whether the DisCo will support you where the DDA cannot.