Improved rights protection for people with disability (2009)

Improved rights protection for people with
disability

Commentary on the 2009 changes
to the Disability Discrimination Act 1992 (Cth) and related measures

August 2009

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1 Introduction

The Disability Discrimination and Other Human Rights Legislation Amendment
Act 2009 (Cth) has made a range of significant changes to federal
discrimination laws. The focus of this paper is on the major changes to the Disability Discrimination Act 1992 (DDA), which commenced for the most
part on 5 August 2009.

The main impetus for the changes to the DDA was the 2004 report of the
Australian Productivity Commission, Review of the Disability Discrimination
Act 1992,^[1] which recommended a
range of changes to improve the operation of the DDA.

This paper considers the following changes:

Recognition of the Disabilities Convention
Changes to the definition of disability
Changes to the principal definition of indirect discrimination
Introducing what is described as a ‘positive duty’ to make
reasonable adjustments
Clarifying the rights and obligations relating to assistance animals
Making the ‘inherent requirements’ defence available to
employers in a wider range of circumstances
Making the defence of unjustifiable hardship available in all areas of
public life covered by the DDA
Modifying the prohibition on requests for information relating to
disability.

The paper also provides a brief summary of significant
changes to other federal human rights laws relevant to claims of disability
discrimination, including the effect of the Convention on the Rights of
Persons with Disabilities Declaration 2009.

For comprehensive coverage of case law under the DDA and other federal
discrimination laws, see the Commission’s publication Federal
Discrimination Law, now available on AustLII at <www.austlii.edu.au/>
and as a free download from the Commission’s website at
<www.humanrights.gov.au/legal/fdl>.

2 Recognition of the Disabilities Convention

Section 12 of the DDA sets out the circumstances in which the Act applies.
Its effect is, amongst other things, to limit the operation of the DDA’s
provisions to areas over which the Commonwealth has legislative power under the Constitution.

On 30 March 2008 Australia ratified the Convention on the Rights of
Persons with Disabilities^[2] (‘Disabilities Convention’) and the 2009 amendments inserted an
explicit reference to the Disabilities Convention in s 12(8)(ba) of the
DDA.^[3] The DDA now has effect to the
extent that its provisions ‘give effect to the Disabilities
Convention’.

This amendment strengthens the Constitutional basis for the DDA and ensures
that it will have a broad operation.

Prior to the amendment, a number of cases considered the application of s
12(8)(e) of the DDA which provides that the Act has effect to the extent that
its provisions ‘relate to matters of international concern’. It was
held that preventing disability discrimination was a ‘matter of
international concern’. For example, in Souliotopoulos v La Trobe
University Liberal Club,^[4] Merkel
J found that the provisions of the DDA relating to clubs and associations had
effect because the prohibition of disability discrimination is a matter of
‘international concern’.

3 Changes to the definition of disability

The definition of disability in s 4 of the DDA has been changed to include a
genetic predisposition to a disability. It is therefore unlawful to discriminate
against a person because of a genetic predisposition to a disability.

The definition has also had a note added that states:

To avoid doubt, a disability that is otherwise covered by this definition
includes behaviour that is a symptom or manifestation of the disability.

This note reflects the state of the law following the High Court decision in
Purvis v New South Wales (Department of Education and
Training).^[5]

4 Changes to the principal definition of indirect
discrimination^[6]

The principal definition of indirect disability discrimination has been
amended in a number of respects. Section 6 now relevantly provides:

6 Indirect Disability Discrimination

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved
person) on the ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person
to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person does not or would not
comply, or is not able or would not be able to comply, with the requirement or
condition; and

(c) the requirement or condition has, or is likely to have, the effect of
disadvantaging persons with the disability.

...

(3) Subsection (1) or (2) does not apply if the requirement or condition
is reasonable, having regard to the circumstances of the case.

(4) For the purposes of subsection (3), the burden of proving that the
requirement or condition is reasonable, having regard to the circumstances of
the case, lies on the person who requires, or proposes to require, the person
with the disability to comply with the requirement or condition.

Significant changes from the previous definition of indirect discrimination
are as follows:

the definition of indirect discrimination has been extended to include proposed acts of indirect discrimination (s 6(1)(a));
the section no longer requires the applicant to prove that a
‘substantially higher proportion of persons without the disability comply
or are able to comply’ with the relevant requirement or condition (the
‘proportionality requirement’ in the former s 6(a));
instead, the section now requires that an applicant prove that the
requirement or condition ‘has or is likely to have, the effect of
disadvantaging persons with the disability’ (s 6(1)(c)); and
the burden of proving the ‘reasonableness’ of the requirement or
condition now rests on the alleged discriminator, not the
applicant.

It is still necessary for an applicant to show that they
cannot comply with the requirement or condition (former s 6(c)) and they must
also now show that their inability to comply is ‘because of the
disability’ (s 6(1)(b)). This change seems unlikely to have any practical
effect. Applicants have typically challenged requirements or conditions that
have had a disparate impact upon them because of their disability and not for
any other reason.^[7]

4.1 ‘Disadvantaging persons with the
disability’

Section 6(1)(c) now requires an aggrieved person to prove that the condition
or requirement ‘has or is likely to have the effect of disadvantaging
persons with the disability’.

The term ‘disadvantaging’ is not defined in the DDA. The
Explanatory Memorandum states only that that ‘in order for there to be
discrimination, there must be a differential
impact’.^[8]

Two particular issues would seem likely to arise under the new s 6(1)(c):

defining the group of people with the disability of the aggrieved person;
and
the evidence required to establish that the group is disadvantaged by the
condition or
requirement

(i) Defining the group
of people with the disability of the aggrieved person

The need to identify the relevant ‘disability’ with some
precision is likely to be particularly important in this context. A broad
definition of a person’s disability (for example ‘vision
impairment’) may make proof of this element more difficult: it may require
an aggrieved person to show that persons with a similar but less acute
disability are also disadvantaged by the relevant requirement or condition.

(ii) Evidence of disadvantage

The nature of the evidence needed to prove that a requirement or condition
‘has, or is likely to have, the effect of disadvantaging people with the
disability’ is likely to vary from case-to-case.

In the context of the Sex Discrimination Act 1984 (Cth) (SDA), it has
been successfully argued that the requirement to work full-time is a condition,
requirement or practice that has the effect of disadvantaging women. The courts
have accepted, generally as a matter of judicial notice without any specific
evidence, that this disadvantage stems from the fact that women are more likely
to require part-time work to meet their family
responsibilities.^[9]

There are also indications of a similar approach in decisions under the
pre-2009 indirect discrimination provisions of the DDA concerning the
‘proportionality requirement’, but it is clear that it will depend
upon the nature of the case.

For example, in Penhall-Jones v State of
NSW,^[10] the applicant alleged
that she had been indirectly discriminated against because her employer required
her to attend formal and stressful interviews. Under the former indirect
discrimination provisions, the applicant was required to show that a
substantially higher proportion of people without her disability (which was
adjustment disorder) could comply. Raphael FM rejected Ms Penhall-Jones’
claim because she had not led any evidence of how other persons with her
disability would have responded to such an interview, nor how persons without
her disability would have responded. In reaching this conclusion, however, his
Honour accepted

that there are occasions where one can take the evidence of one complainant
as being typical of all members of the group. One person in a wheelchair who
complained that she was unable to climb the stairs to the Opera House might be
accepted as speaking for all persons in her position, but the very nature of the
complaints made by Ms Penhall-Jones cries out for more particularisation of the
group to which it is said she belongs. In the absence of such particularisation
Ms Penhall-Jones cannot proceed with a claim of indirect
discrimination.^[11]

In Rawcliffe v Northern Sydney Central Coast Area Health
Service,^[12] Smith FM
noted that the authorities on former s 6(a) ‘allow considerable
flexibility’^[13] on the
identification of the relevant groups for comparison, including the application
of ‘commonsense’^[14] or
‘ordinary human experience of which I can take judicial
notice’,^[15] rather than
necessarily requiring statistical or other such
evidence.^[16]

4.2 Shifting the burden of proof

The burden of proving that a requirement or condition is reasonable has now
shifted to the respondent (s 6(4)). This brings the DDA into line with the
approach to indirect discrimination under the SDA and Age Discrimination Act
2004 (Cth) (ADA).

The Explanatory Memorandum to the amending legislation explains that the
change implements a recommendation of the Productivity Commission and that
‘[i]t is reasonable to expect that the person imposing the requirement or
condition would have better access to information required to explain or justify
the reason for it.’^[17]

5 Introducing a ‘duty to make reasonable
adjustments’

Perhaps the most significant of the changes made by the 2009 amendments to
the DDA is the introduction of what is described as a ‘duty to make
reasonable adjustments for a person with
disability’.^[18] Introducing a
positive duty to make reasonable adjustments was one of the recommendations of
the Productivity Commission’s review and is consistent with the
requirement to make ‘reasonable accommodation’ in the Disabilities
Convention.^[19]

The Explanatory Memorandum to the amending legislation states:

Until relatively recently, the general view, including in the case law, was
that the Disability Discrimination Act impliedly imposes such a duty if such
adjustments are necessary to avoid unlawful discrimination – subject to
the defence of unjustifiable hardship. This view was supported by the
Explanatory Memorandum of the Disability Discrimination Act and Second Reading
Speech delivered when the Disability Discrimination Act was first
enacted.^[20]

However, the majority of the High Court in Purvis v New South Wales,
considering the direct discrimination provisions of the DDA, rejected the
suggestion that they imposed an obligation to provide reasonable adjustment to
accommodate a person’s
disability.^[21] Any obligation could
therefore only arise through the operation of the indirect discrimination
provisions.

The 2009 amendments are said to make ‘explicit the positive duty to
make reasonable adjustments for a person with
disability’.^[22] It should be
noted, however, that despite the claim that there is now a ‘positive
duty’, the amendments in effect provide a cause of action for a failure to
make reasonable adjustments. There is not a pro-active obligation on service
providers or government agencies etc to ensure that existing structural features
that may disadvantage people with disability are removed or altered.

The duty is embedded into the definitions of both direct (s 5(2)) and
indirect (s 6(2)) discrimination.

Note that in the educational context, the Disability Standards for
Education 2005 also impose an obligation on education providers to make
‘reasonable adjustments’ to accommodate the needs of students with
disabilities.^[23] This paper does
not consider those existing provisions.

5.1 What are ‘reasonable
adjustments’?

‘Reasonable adjustment’ is defined in subsection 4(1) as
follows:

[a]n adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the
person.

Accordingly, ‘reasonable adjustments’ are all adjustments that do
not impose an unjustifiable hardship on the person making the
adjustments.^[24]

Section 11 contains a definition of unjustifiable hardship and provides that
for the purposes of the DDA, ‘the burden of proving that something would
impose unjustifiable hardship lies on the person claiming unjustifiable
hardship’ (s 11(2)).

In practice, it seems that:

it is for an aggrieved person to identify the adjustment(s); and
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.

5.2 Reasonable adjustments and direct
discrimination

The definition of direct discrimination introduces a duty to make reasonable
adjustments as follows:

5(2) For the purposes of this Act, a person (the discriminator) also
discriminates against another person (the aggrieved person) on the ground of a
disability of the aggrieved person 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 aggrieved 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.

This would seem to operate as follows:

The aggrieved person identifies the adjustment(s)
The respondent refuses or fails to make the adjustment(s)
The respondent may argue that the adjustments are not reasonable because
they impose an 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
- the less favourable treatment is because of the aggrieved
  person’s disability.

The causal link between the
disability and the less favourable treatment (‘because of’) should
not be understood as requiring proof of any intention or motive to discriminate
or disadvantage.^[25]

What s 5(2)(b) appears to require is that the effect of the failure to
make reasonable adjustment (ie the less favourable treatment) can be linked to a
person’s disability rather than to some other factor.

5.3 Reasonable adjustments and indirect
discrimination

The definition of indirect discrimination also includes a duty to make
reasonable adjustments. Section 6(2) provides:

6(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the
ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person
to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person would comply, or would be
able to comply, with the requirement or condition 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 persons with the disability.

Section 6(3) provides relevantly that s 6(2) ‘does not apply if the
requirement or condition is reasonable, having regard to the circumstances of
the case’. The onus of proving reasonableness lies on the respondent (s
6(4)).

The Explanatory Memorandum to the amending legislation states that

a person does not discriminate if the person makes all reasonable adjustments
to eliminate the disadvantage or minimise it to the greatest extent
possible.

...the question of whether the person has made ‘all reasonable
adjustments’ takes into account the circumstances of the parties involved,
including what is or is not possible for the person making the
adjustments. On the other hand, the question of what adjustments can be made
to ‘minimise as much as possible the disadvantageous effect of the
requirement or condition’ requires a consideration to be made of what
adjustments are possible to be made generally – not what is
possible for that particular
person.^[26]

The section would seem to operate as follows:

The aggrieved person:
- identifies a requirement or condition;
- identifies a reasonable adjustment; and
- can prove that because of their disability they can comply with the
  requirement or condition only with the reasonable adjustment.
The respondent refuses or fails to make the adjustment(s)
The respondent may argue that the adjustment(s) are not reasonable because
they impose an unjustifiable hardship
If the adjustments are reasonable, the aggrieved person must show that the
failure to make the adjustments has, or is likely to have, the effect of
disadvantaging persons with the disability.
In any event, if the respondent can show that the requirement or condition
is reasonable, the duty does not apply.

6 Clarifying the rights and obligations relating to
assistance animals

The 2009 amendments have sought to clarify the law following the decision of
the Full Federal Court in Queensland v Forest (‘Forest’).^[27] The effect of the decision of Spender and Emmett JJ in Forest was that it
was not enough for an applicant to show that they have been treated less
favourably because they were accompanied by an assistance animal under (the
then) s 9 of the DDA. It was also necessary to show that the person had been
discriminated against on the ground of their
disability.^[28] This left little
room for s 9 to operate.

Section 8 now provides, relevantly:

(1) This Act 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.

Example: For the purposes of section 5 (direct discrimination),
circumstances are not materially different because of the fact that a person
with a disability require adjustments for the person’s carer, assistant,
assistance animal or disability aid (see subsection 5(3)).

(2) For the purposes of subsection (1), but without limiting that subsection,
this Act has effect in relation to a person with a disability who has a carer,
assistant, assistance animal or disability aid as if:

(a) each reference to something being done or needed because of a disability
were a reference to the thing being done or needed because of the fact that the
person has the carer, assistant animal or aid; and

(b) each other reference to a disability were a reference to the carer,
assistant, animal or aid.

(3) This section does not apply to section 48 (infectious diseases) or
section 54A (exemptions in relation to assistance animals)

This new section makes it clear that discrimination on the ground of having
an assistance animal (or carer, assistant or disability aid) is to be treated as
discrimination on the ground of disability. It is not necessary to separately
prove that the discrimination occurs on the ground of disability.

6.1 What is an ‘assistance
animal’?

Section 9 (2) defines an assistance animal as a dog or other animal that
is:

(a) accredited under a law of a State or Territory that provides for the
accreditation of animals trained to assist a person with a disability to
alleviate the effect of the disability; or

(b) accredited by an animal training organisation prescribed by the
regulations for the purposes of this paragraph; or

(c) trained:

(i) to assist a person with a disability to alleviate the effect of the
disability; and

(ii) to meet standards of hygiene and behaviour that are appropriate for an
animal in a public place.

Note: For exemptions from Part 2 for discrimination in relation to
assistance animals, see section 54A.

The Explanatory Memorandum to the 2009 amendments to the DDA states:

The purpose of this amendment is to provide greater certainty to both service
providers and people with assistance animals. The third limb of the definition
(paragraph 9(2)(c)) is designed to ensure that people with disability who may
not live in a State or Territory that has a relevant accreditation scheme, or
who may not have access to a recognised assistance animal trainer continue to be
protected under the Disability Discrimination Act (if they are able to
demonstrate the requirements of the relevant
sections).^[29]

6.2 Exemptions relating to assistance
animals

The DDA now provides for specific exemptions relating to assistance animals.
The Explanatory Memorandum to the 2009 amendments states that new s 54A provides
‘certainty for both people with assistance animals and service providers
by clarifying the entitlements and obligations of both
parties’.^[30]

New s 54A provides that it is not unlawful:

to request or require that an assistance animal remain under the control of
the person with the disability or another person on behalf of the person with
the disability (s 54A(2)); an assistance animal may be under the control of a
person even if it is not under the person’s direct physical control (s
54A(3)).
for a person to discriminate against a person with a disability on the
ground of the disability if:
- they reasonably suspect that the assistance animal has an
  infectious disease; and
- the discrimination is reasonably necessary to protect public health
  or the health of other animals (s 54A(4)).
for a person to request the person with the disability to produce evidence
that an animal:
- is an ‘assistance animal’; or
- is trained to meet standards of hygiene and behaviour that are
  appropriate for an animal in a public place (s 54A(5)).
for a person to discriminate on the ground that a person has an assistance
animal if the person with the assistance animal fails to produce evidence that
the animal:
- is an assistance animal; or
- is trained to meet standards of hygiene and behaviour appropriate
  for an animal in a public place (s 54A(6)).

The
provisions relating to assistance animals do not affect the liability of a
person for damage to property caused by an assistance
animal.^[31]

7 Making the ‘inherent requirements’
defence available to employers in a wider range of circumstances

From 5 August 2009, s 21A(1) of the DDA provides a defence to a claim of
unlawful discrimination in work where:

the discrimination relates to particular work(including promotion or
transfer to particular work); and
a person is, because of their disability, ‘unable to carry out the
inherent requirements of the particular work even if the relevant employer,
principal or partnership made reasonable adjustments for the aggrieved
person.’^[32]

This
defence was previously contained in s 15(4). That section has been
repealed.^[33]

This defence applies equally to employees, contract workers, commission
agents, partnerships and qualifying
bodies.^[34] It also applies in a
broad range of work situations:

in the arrangements made for the purpose of determining who should be
offered employment (s15(1)(a));
in the terms and conditions on which employment is offered (s15(1)(c));
when offering employment, promotion or transfers (s 15(1)(d));
in the terms and conditions of employment (s 15(2)(a)); and
dismissing the employee (s 15(2)(c)).

However, the defence
does not apply to:

denying a person with disability access to opportunities for promotion,
transfer or training;
denying a person with disability access to any other benefits associated
with employment;
subjecting the person with disability to any other detriment; or
discrimination in s 20 (registered organisations under the Fair Work
(Registered Organisations) Act 2009)

The Explanatory Memorandum
to the 2009 amendments states:

The purpose of the first exclusion is to ensure people with disability retain
an entitlement to have the opportunity to seek a promotion or transfer on an
equal basis with others. Thus an employer could not, by denying access to the
opportunity for promotion or transfer, deny an employee with disability the
opportunity to demonstrate that he or she can in fact carry out the inherent
requirements of the job sought.

The second and third area exclusions relate to instances of discrimination by
an employer against a person who is already employed. In those instances, the
employee is already carrying out the inherent requirements of the job, the
defence of inherent requirements would bear no meaning. That is, if the employee
is carrying out the inherent requirements of the job, but is then denied access
to a benefit or is subjected to a detriment by his or her employer (other than
dismissal or a change in terms and conditions), it cannot be a defence to claim
that the reason for the discrimination was that the employee was unable to carry
out the inherent requirements of the job.

However, if an existing employee became unable to meet the inherent
requirements of the job, the defence of inherent requirements would remain
available to the employer, should he or she decide to dismiss the employee or to
change the terms and conditions of the employment on that
basis.^[35]

The onus of proving the elements of the defence is on the
respondent.^[36]

Section 21A(2) lists the factors the court must take into account in
determining whether the aggrieved person would be able to carry out the inherent
requirements of the work as:

(a) the aggrieved person’s past training, qualifications and
experience relevant to the particular work;

(b) the aggrieved person’s performance in working for discriminator if
the aggrieved person already works for the discriminator;

(c) any other factor that is reasonable to take into account.

8 Making the defence of unjustifiable hardship
available in all areas of public life covered by the DDA

The defence of unjustifiable hardship is now available in relation to
discrimination in all areas of public life covered by the DDA (ss 21B and 29A).
It is not available as a defence against a claim of harassment or in relation to
requests for information.

Respondents must prove that avoiding discrimination would impose an
unjustifiable hardship upon them (s 11(2)). This codifies the position
established in the case law.^[37]

There are two new factors a court must consider when determining what amounts
to an unjustifiable hardship (s 11):

the availability of financial and other assistance; and
disability actions plans submitted to the Commission by any respondent.

The Explanatory Memorandum to the amendments states
that first of these factors is:

designed to allow for a more balanced assessment of the costs of making
adjustments. For example, funding to assist in responding to the particular
needs of people with disability is available in some
circumstances.^[38]

9 Modifying the prohibition on requests for
information relating to disability

The 2009 amendments have also modified the provisions relation to requests
for information. Section 30 of the DDA makes it unlawful for a person 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; or
the information relates to disability.

It is a defence if

(a) evidence is produced to the effect that none of the purposes for which
the first person requested or required the information was the purpose of
unlawfully discriminating against the other person on the ground of the
disability; and

(b) the evidence is not rebutted (s 30(3)).

The Explanatory Memorandum notes that this defence imposes only an evidential
onus and

does not impose an unduly onerous burden requiring that the defendant totally
eliminate the possibility that they may have had a purpose of unlawful
discrimination. Rather, they are required to provide evidence that is within
their knowledge and that evidence is taken to be probative of their purpose
unless rebutted. They are not given the task of actually proving the proposition
that they did not have any unlawful purpose. They are required to bring evidence
of a purpose that is not unlawful
discrimination.^[39]

It is also not unlawful to request information if it is evidence in relation
to an assistance animal (s 30(4)).

10 Other changes to federal discrimination
laws

10.1 The Australian Human Rights
Commission

A significant change introduced by the 2009 amendments was the renaming of
the Human Rights and Equal Opportunity Commission to the Australian Human Rights
Commission. The Commission had been using the new name as its public
‘brand’ since September 2008 and this now has legal effect.

The Commission’s foundational legislation has accordingly also changed
from the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to
the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

10.2 Procedural changes

The most significant of the procedural changes made by the 2009 amendments is
the extension to the limitation period for unlawful discrimination
claims.^[40] Once a complaint has
been terminated by the President of the Australian Human Rights
Commission,^[41] an applicant now has
60 days (extended from 28) within which to make an application to the Federal
Court or the Federal Magistrates
Court.^[42]

10.3 ‘Human rights’ functions to
include the Disabilities Convention

The Australian Human Rights Commission has a range of functions relating to
human rights.^[43] This includes
monitoring, reporting and educative functions as well as the function of
investigating complaints of breaches of human rights by the Commonwealth (or
persons acting on their
behalf).^[44]

‘Human rights’ are defined under the AHRC Act by reference to
particular international instruments including the International Covenant on
Civil and Political Rights and the Convention on the Rights of the
Child.^[45]

On 20 April 2009, the Attorney-General declared the Convention on the
Rights of Persons with Disabilities (Disabilities Convention) to be a
‘relevant international instrument’ for the purposes of the AHRC
Act.^[46] The effect of this
declaration is to extend the Commission’s human rights functions to the
rights contained in the Disabilities Convention.

As a result, people with disabilities will be able to complain to the
Commission about an act or practice done by or on behalf of the Australian
government that is alleged to breach their rights under the Disabilities
Convention. If the Commission finds there has been a breach, it reports the
breach to the Attorney-General. This report can include recommendations for
preventing a repetition of the act or continuation of the practice, as well as
the payment of compensation.^[47]

^[1] Explanatory Memorandum,
Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008
(Cth), 2. The Productivity Commission’s report is available online: <http://www.pc.gov.au/projects/inquiry/dda/docs/finalreport>
at 18 August 2009.

^[2] Opened for
signature 30 March 2007, 993 UNTS 3 (entered into force 3 May
2008).

^[3] Schedule 2 pt 1 item 20
of the Disability Discrimination and Other Human Rights Legislation Amendment
Act 2009 (Cth).

^[4] (2002) 120
FCR 584.

^[5] (2003) 217 CLR
92.

^[6] Note that the amending
legislation also makes changes to the principal definition of direct
discrimination in s 5(1), but the changes appear to be designed to simplify the
language of the section and do not seem likely to alter its operation: Disability Discrimination and Other Human Rights Legislation Amendment Act
2009 (Cth) sch 2, pt 1, item
17.

^[7] See the coverage of
indirect discrimination cases in 5.2.3 of Federal Discrimination
Law.

^[8] Explanatory
Memorandum, Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008 (Cth), 9
[41-3].

^[9] See Hickie v Hunt
& Hunt [1998] HREOCA 8, [6.17.10] (extract at (1998) EOC 92-910); Escobar v Rainbow Printing (No 2) [2002] FMCA 122, [33]; Mayer v
Australian Nuclear Science & Technology Organisation [2003] FMCA 209,
[70].

^[10] [2008] FMCA 832,
[69].

^[11] [2008] FMCA 832,
[69].

^[12] [2007] FMCA
931.

^[13] [2007] FMCA 931,
[84].

^[14] [2007] FMCA 931,
[87].

^[15] [2007] FMCA 931,
[86].

^[16] Approving Jordan v
North Coast Area Health Service (No 2) [2005] NSWADT
258.

^[17] Explanatory Memorandum,
Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008
(Cth), 10 [41-11]-[41-12].

^[18] Explanatory Memorandum, Disability Discrimination and Other Human Rights
Legislation Amendment Bill 2008 (Cth), 8
[35].

^[19]Explanatory
Memorandum, Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008, 9
[41-7].

^[20] Explanatory
Memorandum, Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008, 8 [38].

^[21] (2003) 217 CLR 92, 159 [217]-[218] (Gummow, Hayne and Heydon JJ); 175 [273]
(Callinan J agreeing); 127 [104] (Kirby and McHugh
JJ).

^[22] Explanatory Memorandum,
Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008
(Cth), 8 [35].

^[23] See Part 3
and paras 4.2(3)(c), 5.2(2)(c), 6.2(2)(c), 7.2(5)(c) and
7.2(6)(c).

^[24]Explanatory
Memorandum, Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008, 8 [36].

^[25] See discussion of the cases
on intention and motive in Federal Discrimination Law at
5.2.2(a)(i).

^[26] Explanatory
Memorandum, Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008, 9 [41-8] -10 [41-9] (emphasis in
original).

^[27] [2008] FCAFC
96.

^[28] [2008] FCAFC 96,
[111]-[118].

^[29]Explanatory
Memorandum, Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008, 11 [50].

^[30]Explanatory Memorandum, Disability Discrimination and Other Human Rights
Legislation Amendment Bill 2008, 19
[111].

^[31]See DDA, s 54A(7).

^[32]These changes were
introduced by the Disability Discrimination and Other Human Rights Legislation
Amendment Act 2009 (Cth), sch 1, item
41.

^[33]Disability
Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth), sch
1, item 25.

^[34]DDA, s
21A(3).

^[35]Explanatory
Memorandum, Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008, 14 [75]-[77].

^[36]Commonwealth v Human Rights & Equal Opportunity Commission (1996) 70 FCR 76, 87-88; Power v Aboriginal Hostels Ltd (2003) 133 FCR
254, [19] (Selway J); Williams v Commonwealth [2002] FMCA 89,
[144].

^[37] Cooper v Human
Rights & Equal Opportunity Commission (1999) 93 FCR 481, 492 [32]; cited
with approval in Sluggett v Human Rights & Equal Opportunity Commission (2002) 123 FCR 561, 567-568
[23]-[24]

^[38]Explanatory
Memorandum, Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008, 12
[57].

^[39] Explanatory
Memorandum, Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008, 16
[87].

^[40] For other changes to
the procedures of the Commission, see generally sch 3 pt 2 of the Disability
Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth).

^[41] Complaints are
terminated under s 46PH of the AHRC
Act.

^[42] Section 46PO(2) of the
AHRC Act; amended by sch 3 pt 2 item 154 of the Disability Discrimination and
Other Human Rights Legislation Amendment Act 2009 (Cth).

^[43] See s 11(1) and
Division 3 of the AHRC Act.

^[44] For information about making a complaint of a breach of human rights, see the
Commission’s website:
http://humanrights.gov.au/complaints_information/HREOCA_breaches.html.

^[45] The ICCPR is listed in the definition of ‘human rights’ in s 3 of
the AHRC Act. The CRC was declared to be a ‘relevant international
instrument’ under s 47 of the AHRC Act on 22 December 1992, bringing it
within the definition of ‘human rights’ in s 3 of the AHRC
Act.

^[46] Convention on the
Rights of Persons with Disabilities Declaration 2009.

^[47] Section 29 of the AHRC
Act.

Improved rights protection for people with disability (2009)