DDA Decline/termination decisions: Administration of Commonwealth laws and programs

Decline/termination decisions: Administration of Commonwealth laws and programs

Summaries of decisions by Disability Discrimination Commissioner or delegate to decline complaints, and of the President of HREOC or delegate reviewing such decisions; or (from 13 April 2000) decisions by the President or delegate to terminate complaints.

Last updated: April 2000. Compilation and release of these summaries beyond 13 April 2000 has not been authorised by the Commission

Lack of provision for secret ballot for people with print handicap

A man who is blind complained that he was being discriminated against by the Australian Electoral Commission since, unlike sighted voters, his vote was not made in secret since existing procedures provided only for him to vote with the assistance of an electoral official or another person nominated by the voter. The complaint was withdrawn, and declined by the Commissioner accordingly on the basis that the complainant no longer wished to pursue it, after the Commission advised the complainant that the Electoral Act did not permit the Electoral Commission any discretion to permit electronic voting as the complainant was seeking. (As indicated in previous decisions summarised below, where the substance of a complaint is the operation of a provision of a valid and applicable law which leaves the respondent no discretion, the Commission will regard the complaint as not involving any unlawful act by the respondent) (9 June 1999).

No exceptions to exemption under D.D.A. section 52 regarding migration

A complaint on behalf of a man with an intellectual disability alleged that he had been discriminated against by the Department of Immigration and Multicultural Affairs when it rejected an application for a spouse visa for his wife, after it assessed the marriage as not genuine with his disability being a factor in that assessment. On behalf of the complainant it was argued that the exemption in section 52 for actions done in relation to the administration of the Migration Act should only be applied where a non-citizen with a disability is refused a visa because of failure to meet the health criteria imposed under the Migration Act, and not where the person with a disability involved was not the applicant for entry. The Commissioner rejected this argument and declined the complaint, since section 52 applied to decisions under the Migration Act generally and did not provide any limitation as argued on behalf of the complainant (3 May 1999).

No discriminatory act when law provides no discretion

A woman complained that she had been discriminated against by the Health Insurance Commission and the Department of Health and Family Services because Medicare benefits were not payable for homeopathic medicines and treatment. She alleged that she could not use conventional medicines because of multiple chemical sensitivity and that conventional medical practitioners could not provide her with appropriate treatment since the medical profession generally did not accept the existence of multiple chemical sensitivity. The President confirmed the decision of the Acting Disability Discrimination Commissioner to decline the complaint. She found that since the services and products for which benefits are payable are specified by legislation and there is no discretion to pay for other items, there was no act of discrimination which could be complained of (12 January 1999).

In another case, a person with a psychiatric disability alleged that the Department of Health and Family Services was discriminating on the basis of disability by applying Medicare regulations which limited rebate entitlements for more than fifty sessions per year of certain psychiatric consultations. The President confirmed the decision by a delegate of the Disability Discrimination Commissioner to decline this complaint. He noted that the lower rebate rate came into force automatically once a person reached the fifty sessions per year limit. There was thus no act of discrimination in the administration of a Commonwealth law or program to complain of (12 March 1997).

Restriction on drug benefits scheme availability not unlawful discrimination

A woman complained that she was being discriminated against because the Pharmaceutical Benefits Scheme did not cover the drug prescribed for her condition but did cover that drug when prescribed for other conditions. The Commissioner declined the complaint. The eligibility criteria for the scheme were set by legislation, and there was no discretionary act to complain of (1999).

Restricted eligibility for hearing services not discriminatory

A woman with a hearing impairment complained that she was being discriminated against by being made ineligible for services from Australian Hearing Services by eligibility criteria imposed from April 1997 requiring beneficiaries to be recipients of a pension. The Commissioner declined the complaint. There was no discrimination on the basis of disability since any less favourable treatment was on the basis of not being a pensioner rather than on the basis of disability (1998).

DDA complaint not possible regarding terms of HECS legislation

A man with psychiatric disabilities complained that he had been discriminated against because he could not have remitted his Higher Education Contribution Scheme debt which he alleged had been incurred because his disability (and failure to accommodate it since at the time it was not diagnosed or known to him or the education provider) had meant he took longer than he otherwise would have to complete courses. The Higher Education Funding Act made provision for debt to be remitted on the basis of special circumstances, on application within 15 months of the debt being incurred. The man's disabilities had only been diagnosed several years after he completed his studies and he had therefore not applied within the permitted time for his debt to be remitted. He argued that the requirement that applications be made within 15 months of incurring a debt, rather than from the date that a disability was diagnosed, discriminated against people in his position. The Commissioner declined the complaint. He noted that the respondents in administering the Higher Education Funding Act were bound by the terms of that legislation and had no power or discretion to vary or amend it. The legislation itself was not able to be the subject of a complaint under the DDA, which dealt with administration of Commonwealth laws and programs rather than with the content of laws as such (1998).

Actions in direct compliance with Social Security Act not unlawful

A man with a disability complained that Centrelink was discriminating against people who have a disability other than vision impairment. While people with a vision impairment continue to receive full disability support pensions after gaining full time employment, other people with a disability in the same circumstances do not. The Commissioner declined the complaint on the basis that there was no unlawful act. Centrelink had done no more than administer the term of the Social Security Act, and section 51 of the DDA provided that actions in direct compliance with that Act were not unlawful (27 October 1998).

Gun control requirements not discriminatory

A farmer with a disability complained that he had been discriminated against by a decision to refuse him a license for "Category D" (self loading) firearms. His evidence was that his disability prevented him from using non-self loading weapons effectively for pest eradication on his property. The Delegate of the President confirmed the Acting Disability Discrimination Commissioner's decision to decline the complaint. He found that there had been no direct discrimination. Regarding indirect discrimination, the condition or requirement imposed had been that in order to be licensed for Category D weapons a person had to be in a defined class of professional shooter. There was no evidence that people with the complainant's disability were proportionately less able to satisfy this requirement than people without, as would be required to find indirect discrimination under the DDA (14 July 1998).

Limitations on disability benefits in Social Security Act not unlawful under DDA

A man with a disability complained that his lack of entitlement under theSocial Security Act 1991 to a disability allowance in addition to an invalid pension was discriminatory. Confirming the Disability Discrimination Commissioner's decision to decline the complaint, the delegate of the President noted that section 51 of the DDA exempts provisions in the Social Security Act relating to pensions, allowances and benefits from the application of the DDA. The DDA did not give the Commission any jurisdiction to inquire into complaints about the conduct of the Parliament in passing provisions of the Social Security Act (27 November 1997).

Sales tax exemption criteria not disability discrimination

A complaint on behalf of a man who is paraplegic alleged that he was being discriminated against by the lack of sales tax exemption to enable him to purchase a new car to replace the manual car he could no longer drive. The Commissioner declined the complaint. The man's ineligibility was because he was not on the basis of his disability but because he was unemployed and the exemption applied only for vehicles used to drive to and from employment (1997).

Beneficial programs not required to cover all disabilities

A man complained that the Department of Veterans' Affairs had discriminated against him in that a beneficial program administered by them for veterans with war caused disabilities did not extend to his type of disability. The Commissioner declined the complaint. She referred to section 45 of the DDA which made clear that it was not unlawful to take measures reasonably intended to provide benefits to people with a particular disability. It was not unlawful for beneficial programs for people with a disability to fail to cover all disabilities. (1996)

Investigation for overservicing of chronic fatigue syndrome not discrimination

A number of people who had been diagnosed as having chronic fatigue syndrome complained that their doctor had been discriminated against when he was investigated by the Health Insurance Commission for possible over servicing and required to repay a large sum received in Medicare payments. The Commissioner declined the complaints. There was no evidence sufficient to establish that the doctor and his associates had been singled out for different treatment to that which would have been applied to any other disability regarding which there were uncertainties in relation to diagnosis and treatment. (1996. Decisions to decline these complaints were upheld by the delegate of the President: 30 April 1996).