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Discussion Paper: DDA Standards on Commonwealth Government Information and Communications

Discussion Paper: DDA Standards
on Commonwealth Government Information and Communications

See also plain language summary

Note:This paper was issued by the Commonwealth Attorney-General's
Department. It is reproduced here on the Commission's World Wide Web site for the
convenience of users. This paper is issued as received by the Commission on 15
October 1996.

Development of Disability Discrimination Act Standards on equal access
to Commonwealth Government information and communications is being considered
by a working party chaired by the Attorney-General's Department. The working
party also includes the Disability Discrimination Commissioner, a number
of interested Commonwealth Departments, and representatives of the DDA
Disability Standards Project (on behalf of people with a disability).

The working party hopes to issue a first draft of Standards in this
area for public comment early in 1997. This paper has been issued to inform
interested parties of the issues being considered by the working party.

Enquiries and comments on issues raised by this paper, or other issues
which should be considered by the working party, would be welcome.

Contents

1. Background

2. Range of possible issues that DDA Standards could address
2.1 General issues
2.2 Access to information materials produced in print
2.3 Computerised information
2.4 Broadcast information
2.5 Telephone communications
2.6 Face to face communications

3. Relationship of DDA Standards to present DDA obligations

3.1 Compliance with a Standard is a complete defence
3.2 Range of issues covered by DDA Standards
3.3 The DDA covers issues not addressed by DDA Standards
3.4 Standards must be consistent with the DDA
3.5 Effect of the DDA on the Standards

4. Existing obligations on equal access
4.1 The necessity of equal access to information and communications

4.2 "Some" access is not necessarily "equal" access
4.3 Equal access means equal convenience, timeliness and cost

4.4 Equal access is required for all people with a disability

4.5 Administration v. content of laws and programs

5. Limitations on the obligation to provide equally
effective access

5.1 "Unjustifiable hardship" does not apply under section 29
5.2 Indirect discrimination and the "reasonableness" limitation

5.3 Specific exceptions and exemptions
5.3.1 Special measures
5
.3.2 Superannuation and insurance
5.3.3 Acts done under another law
5.3.4 Infectious diseases
5.3.5 Charities
5.3.6 Telecommunications
5.3.7 Pensions and allowances
5.3.8 Migration
5.3.9 Combat duties and peacekeeping services
5.3.10 Exemptions granted by HREOC

6. Agencies Covered
6.1 Coverage of all Commonwealth departments and authorities
6.2 Coverage of non-Commonwealth bodies
6.3 Position of the courts
6.4 Position of Commonwealth Parliament

7. Comparative material: The Americans With Disabilities
Act

Background

Under the Disability Discrimination Act (DDA), the Attorney-General
can develop Disability Standards, with Parliamentary approval. The administration
of Commonwealth laws and programs is one of the areas where Standards
can be developed.

The Human Rights and Equal Opportunity Commission (HREOC) released an
Issues Paper on DDA Standards in November 1993. Copies of this paper were
distributed to the heads of all Commonwealth Departments, and to major
national and state disability groups. The Issues Paper discussed how DDA
Standards may be able to make the rights and obligations under the DDA
clearer and more certain.

Two possible Standards may address some issues about the administration
of Commonwealth laws and programs:

i) DDA Building Standards

Access to Commonwealth buildings is currently being considered with
issues of access to premises more generally, in co-operation with the
Australian Building Codes Board.

ii) DDA Employment Standards

Possible employment Standards also address some issues about program
administration, in employment generally and in Commonwealth employment
in particular. Papers about possible DDA Standards on employment were
released by HREOC in July/August 1995 for comment by the end of March
1996. These papers discussed specific areas of information such as accessible
Commonwealth job information. They also addressed more general issues
about information and communications, for example how Commonwealth employees
with a disability may require reasonable adjustments in their equipment
or in the way they communicate. Because they are specifically about employment,
these kinds of issues do not need to be considered in Standards about
information and communications.

However, these possible Standards do not cover all issues of equality
and non-discrimination for people with a disability in the administration
of Commonwealth laws and programs.

In particular, DDA Standards on equally effective access to Commonwealth
Government information and communications should be considered. This need
was raised by the following:

(a) by the Attorney-General's advisory DDA Disability Standards Working
Group. This group includes the Disability Discrimination Commissioner,
and representatives of the Office of Disability, Attorney-General's Department,
Australian Disability Consultative Council, and the National Coalition
for the Development of Disability Standards;

(b) as part of a settlement in a DDA complaint by the National Federation
of Blind Citizens of Australia, the Commonwealth agreed to consider DDA
Standards in this area; and

(c) the Commonwealth's Disability Task Force's endorsement of consideration
of DDA Standards in this area at its meeting on 6 July 1995.

The Commonwealth Disability Strategy (CDS) identified the importance
of information and communication by government, and committed Commonwealth
departments and authorities to making information services and documentation
accessible.

DDA Standards may be able to set out more clearly the obligations of
departments and authorities, which would help them comply with the DDA
and implement the CDS.

2. Range of Possible Issues that DDA Standards
could Address

DDA Standards can offer greater clarity and certainty of rights and
obligations to all parties involved. Given this potential benefit, Standards
should include issues about equal access to Commonwealth Government information
and communications unless these issues are better left to be covered by
the existing sections of the DDA, or are to be deferred for further consideration.

Discussions with key departments, agencies and representative disability
community groups should raise a number of issues for consideration. The
following questions might assist that discussion. They indicate some of
the issues which should be considered in developing a Standard in this
area.

2.1 General Issues

  • How far should Standards go beyond a general obligation to provide
    equal access? Should they specify particular forms and formats in which
    information and communication is and is not required to be provided?

  • What requirements should apply only where requested by a person with
    a disability rather than as a matter of routine?

  • In situations where fully equal access is not required or possible,
    does any "second best" rule apply about the level of access?

  • Do Standards need to address additional fees or charges for providing
    information in non-standard forms?

  • Should Standards on information and communication say anything about
    access to buildings where information is provided and communications
    occur? Or should this be dealt with separately?

2.2 Access to Information Materials
Produced in Print

  • Must materials always be made available in Braille? In large print?
    On tape/other audio form? On computer disc? On sign language video?
    In other forms such as "words and pictures"?

  • In what circumstances do some formats not need to be produced?

  • What production standards should be applied to these formats?

  • Who should be responsible for translating standard print material
    into other formats? Originating agencies? A central authority such as
    the Australian Government Publishing Service?

  • May production and distribution of non-standard print formats be contracted
    out to commercial producers or community organisations? Or must non-standard
    print materials be available from the same source as standard print?

  • Should non-standard print versions of information always be made available
    at the same time as standard print material? If not, what "second best"
    rules apply?

  • Other than "words and pictures" and "plain language" versions of print,
    what means would enable equal access for people whose disability involves
    difficulties with comprehension?

  • When should readers or other assistants have to be provided to afford
    access to printed materials?

2.3 Computerised Information

  • How far may on-line access (or other computerised information such
    as computer disc or compact disc) substitute for direct production by
    agencies of Braille, large print and audio output?

  • What, if any, technical requirements should Standards address (e.g.
    to ensure that output is accessible and that material can be translated
    between formats)?

  • What, specifically, should Standards on information and communication
    say about physical accessibility of equipment and facilities used to
    provide access on computer?

  • Can/should Standards include anything about making access to computerised
    information easier for people with comprehension difficulties?

  • The Commonwealth may in some cases rely on electronic transfer of
    information rather than on direct production of materials in forms other
    than standard print. If it does this, how far must it increase individuals'
    and/or organisations' capacity to receive information electronically
    and reproduce it in appropriate forms (e.g. by provision of funds, equipment,
    staff assistance or training)?

2.4 Broadcast Information

  • Should DDA Standards say something about captioning of Commonwealth
    information broadcast on television (e.g. information from the Australian
    Electoral Commission and free time allocated to political parties)?

  • Should DDA Standards say anything else about equal access to broadcast
    information?

2.5 Telephone communications

  • Should Commonwealth agencies have to provide direct TTY access? Could
    they provide access in some or all circumstances by other means, such
    as through the national relay service or through computer networks?

  • Should DDA Standards set specific requirements about relay services?

  • Where there is direct TTY access, what level of access should be provided?

  • Should DDA Standards say something about telebrailler access?

  • Should DDA Standards say something about voice amplification features
    of telephones?

2.6 Face to Face Communications

  • When should Commonwealth authorities have to provide interpreters,
    note-takers or other assistants?

  • What qualifications/accreditation should such assistants have?

  • What equipment should Commonwealth authorities have to provide? What
    equipment should be the responsibility of the person with a disability?

  • Should communications facilities such as hearing loops be addressed
    in these Standards, or in Standards about Commonwealth premises?

3. Relationship of DDA Standards to
Present DDA Obligations

3.1 Compliance with a DDA Standard
is a Ccomplete Defence to a DDA Complaint

Section 34 of the DDA says that when an action complies with a Standard,
the unlawful discrimination provisions in the DDA do not apply. In other
words, within its area of application, a Standard defines DDA obligations
exhaustively.

3.2 Range of Issues Covered by DDA
Standards

DDA Standards could cover all the issues in DDA section 29, but could
also cover a narrower range.

Standards about the administration of Commonwealth laws and programs
could cover all the issues addressed in DDA section 29, except those about
associates of people with a disability (eg. partners and carers). At present,
Standards cannot address associates. Such Standards could, however, cover
the full range of people with a disability as defined by DDA section 4.

Standards could also cover a narrower range of issues than those in
section 29. For example, this paper is limited to information and communications
issues rather than the administration of laws and programs generally.

3.3 The DDA Covers Issues not Addressed
by DDA Standards

Issues not covered in DDA Standards are still covered by the non-discrimination
provisions in the DDA.

DDA Standards could set out a complete code of obligations about equal
access to information and communication for agencies administering Commonwealth
laws and programs, but are not required to do so. If the Standards fail
to cover any issue, it would still be covered by the existing non-discrimination
provisions of the DDA. The fact that some issues may not be covered by
DDA Standards does not mean that people with a disability lose their rights
in those areas. Present responsibilities and potential liability of departments
remain in force for issues which Standards do not cover.

Any Standard, therefore, should be drafted carefully. It should be clear
if it does not cover an issue, so that the existing provisions of the
DDA apply. It should also be clear if it does apply to an issue but simply
does not provide for the obligations claimed by a person with a disability.

3.4 Standards Must be Consistent
with the objects of the DDA

DDA Standards must be consistent with the objects of the DDA.

General administrative law principles require that valid DDA Standards
need to promote and be consistent with the objects of the DDA. This has
a number of consequences:

  • DDA Standards have to be about non-discrimination in existing laws
    and programs rather than about requiring new substantive programs. However,
    to some extent Standards could require measures in some programs to
    ensure equal access. Specific program measures could be one way to satisfy
    general obligations to provide equal access. For example, the National
    TTY (Telephone Typewriter) relay service can be seen as meeting some
    of the Commonwealth's obligations to provide access to its own communications
    for Deaf people and people with speech impairments.

  • DDA Standards need to promote the object of eliminating discrimination
    as far as possible. Other objects, such as protecting the Commonwealth
    (or other bodies) from unforeseen or unwelcome consequences of the DDA
    itself could not be promoted in the Standards. This function is distinct
    from the purpose of DDA Standards in clarifying rights and obligations
    which are genuinely uncertain. Increased certainty of rights and obligations
    clearly furthers the objects of the DDA, even if the Standard sometimes
    provides for less extensive rights than might have been argued for under
    the existing sections of the DDA.

3.5 Effect of the DDA on the Standards

Although DDA Standards do not need to have precisely the same legal
effect as the sections of the DDA, the effect of the existing provisions
is still relevant.

DDA Standards do not need to have the same effect as the existing provisions
of the DDA. If they did, some sections of the DDA would be made meaningless.
For example, sections 32 and 33 of the DDA say that a person must comply
with a Standard and that where they do, the non-discrimination sections
of Part 2 of the DDA do not apply. Also, if DDA Standards had to reproduce
exactly the legal effect of the existing DDA sections, no Standards could
be made where the effect of the existing provisions is uncertain. This,
however, is precisely where Standards could help achieve greater clarity.

The effect of the existing provisions is relevant to what may or should
be provided by Disability Standards:

  • If an overall package of Standards promotes the objects of the DDA,
    some reduction, limitation or postponement of the rights and obligations
    in the DDA may be allowed. However, any significant reduction in existing
    rights and obligations could be challenged in court, because it may
    not be consistent with the object of eliminating discrimination "as
    far as possible".

  • An overall reduction in rights and obligations would only be consistent
    with the objects of the DDA if it is not possible to comply with the
    present level. Such a claim would likely be scrutinised closely.

  • Before Standards are developed, disability community participants
    should be able to know how far they depart from existing rights and
    obligations. This would serve the interests of certainty and practicability.

  • The effect of Standards on agency budgets would depend how far Standards
    increase, limit, or simply reflect existing obligations of departments
    and agencies under the DDA. That is, if Standards simply reflect present
    DDA obligations, then government agencies could not argue that they
    need their budgets supplemented before Standards are implemented.

4. Existing Obligations on Equal Access

4.1 Equal Access to Information and
Communications

Equal access to information and communications is necessary if Commonwealth
laws and programs are to be administered in a non-discriminatory way.
Except where the DDA specifies exceptions and exemptions, any information
and communications in the course of administering Commonwealth laws and
programs must be made equally accessible to people with a disability.
The limitations on this are discussed below.

4.2 "Some" Access is not Necessarily
"Equal" Access

Case law on access to buildings has shown that "some" access does not
necessarily satisfy a requirement of "equal" or non-discriminatory access.
In Cocks v Queensland the Queensland Anti-Discrimination Tribunal said
that the failure to make the main entrance of the Brisbane Convention
Centre accessible to persons using wheelchairs was unlawful discrimination,
even though there were other accessible entrances.

The same principle applies under the DDA: subject to any exceptions
or limitations, equal access is required rather than only some access.
For example, if Deaf people and people with speech impairments can use
one TTY receiver in an agency while other people can telephone any agency
personnel directly, some access is provided but not equal access (at least
unless the national TTY relay service is accepted as giving equally effective
access).

4.3 Equal Access Means Equal Convenience,
Timeliness and Cost

Equal access in the administration of Commonwealth laws and programs
means that information and communications should be available with equal
convenience, at the same time, and at equal cost (if applicable).

Some limits on full equality in these areas may be necessary and may
be justified by exceptions in the DDA. These are discussed below. It is,
however, uncertain how far equality can be limited and it would be useful
if this was addressed in DDA Standards.

4.4 Equal Access is Required for all
People with a Disability

Equal access to information and communication is required for all people
with a disability.

These obligations apply to the full range of people covered by the DDA's
definition of disability. Disabilities which may raise issues of access
to Commonwealth government information and communication clearly include:

  • intellectual or learning disabilities;

  • disabilities affecting vision or hearing; and

  • physical disabilities which affect a person's ability to use particular
    communications equipment and facilities or information in particular
    forms.

4.5 Administration v. Content of Laws
and Programs

Although DDA section 29 and the power to make Standards apply to the
administration of laws and programs rather than to their content, there
may still be a need for substantial measures to ensure non-discriminatory
administration.

The non-discrimination requirements of DDA section 29 and the power
to make Standards under section 31 relate to "administration" of laws
and programs. Administration of laws and programs is different than the
substantive content of such programs. The content of programs is not addressed
by either section. However, some matters which are described as part of
the content of a program may in fact be matters of administration only.
The distinction is similar to the one in section 24 between adjustments
to ensure equal access to a provided service (which are required) and
the provision of a different service (which is not required). Standards
could clarify these kinds of issues.

The DDA is concerned with discrimination, not with imposing a more general
"citizen's charter". It requires equal access in whatever information
and communication exists, rather than requiring that particular information
and communication be provided. However, providing non-discriminatory access
may require substantial measures. It may mean providing information in
different forms and expanding available communications. Simply providing
the same service to everyone will not avoid discrimination under the DDA.

5. Limitations on the Obligation to Provide
Equally Effective Access

5.1 "Unjustifiable Hardship" does not
Apply under Section 29

Section 24 of the DDA addresses access to goods, services and facilities.
This section covers Commonwealth authorities and bodies acting on their
behalf, as well as all other entities. DDA section 12(7) confirms this.
However, the concept of unjustifiable hardship qualifies the obligations
under section 24. In unjustifiable hardship, if a person's disability
requires adjustments, the benefits of making the adjustment are weighed
against costs or other hardship. The concept of unjustifiable hardship
also takes into account the financial resources of the provider. Clearly,
if a complaint was lodged against the Commonwealth, this factor would
be of less benefit to the Commonwealth than it may be to other bodies.

However, Commonwealth authorities and other authorities administering
Commonwealth laws or programs are also subject to DDA section 29. This
section says that a person who exercises powers under a Commonwealth law
or program cannot discriminate against someone because of their disability
or their associate's disability.

Section 29 does not contain any "unjustifiable hardship" limitation.
This contrasts with section 24, which includes such a limitation for providers
of goods, services and facilities in general. This is significant because
it shows that the Commonwealth has put a higher obligation on itself (and
on people administering its laws and programs) than that which applies
to other entities.

As will be discussed below, however, this does not mean that the Commonwealth's
obligation to provide equally effective access to information and communications
is completely unqualified.

5.2 Indirect Discrimiation and the
"Reasonableness" Limitation

The "reasonableness" element of indirect discrimination limits some
obligations, but its extent is uncertain.

Direct discrimination occurs where a person with a disability is treated
less favourably than other people. Indirect discrimination happens when
a service is provided in a way that is less favourable in its impact on
a person with a disability. In some cases, it can be unclear which kind
of discrimination is applicable, or whether both apply.

Indirect discrimination under section 6 of the DDA happens where a person
with a disability cannot comply with a requirement which a substantially
greater proportion of people without a disability can comply with, and
which is not reasonable.

The President of HREOC found an example of indirect discrimination in
the recent decision Scott v Telstra Corporation. There the requirement
to be able to use a standard telephone handset in order to use Telstra's
telecommunications service was one which Deaf people who required a telephone
typewriter (TTY) could not comply with. This was found to be an unreasonable
requirement.

There is as yet little case law on the meaning of "reasonableness" under
section 6 of the DDA. The High Court in Waters v Public Transport Corporation
looked at the equivalent concept in the Victorian Equal Opportunity Act,
and said it should take into account all the relevant circumstances. The
DDA was drafted on the understanding that this aspect of Waters would
also apply to the DDA.

However, while "reasonableness" and "unjustifiable hardship" may consider
similar issues, the two concepts do not necessarily have the same effect.

In Scott v Telstra Corporation, Sir Ronald Wilson said that the specific
elaboration of unjustifiable hardship in the DDA would make no sense if
all the factors in that defence were relevant to establish the reasonableness
of the requirement. Moreover, such an interpretation would reverse the
onus of proof. He concluded that a test of reasonableness may include
the financial circumstances of the respondent, but it depends on the precise
character of the requirement.

In the context of providing equal access to information and communications,
the President's analysis does not mean that costs and other consequences
are necessarily irrelevant. It does, however, emphasise the point made
earlier in this paper that the Commonwealth's ability to use such considerations
in defence of DDA complaints is uncertain and may be limited, especially
in relation to direct discrimination.

DDA Standards can clearly specify the extent and limits of obligations.
The possible need and justification for limits on obligations to provide
fully equal access is discussed later in this paper.

5.3 Specific Exceptions and Exemptions

The sections of the DDA (including section 29) are subject to a number
of exceptions and exemptions, set out in Division 5 of Part 2 of the Act.
However, section 33 says that Division 5 does not apply to DDA Standards.
Because Standards should produce the same legal effect as all the existing
sections (including the exemptions and exceptions) they would need to
incorporate these limitations. Of course, it could also be decided that
some of the exemptions which apply to the existing provisions do not need
to be addressed in the Standards.

5.3.1 Special Measures

Section 45 of the DDA permits acts which are "reasonably intended" to
ensure that persons with a disability have equal opportunities, and access
to goods, facilities, services, grants, benefits or programs to meet their
special needs. This provision includes the administration of Commonwealth
laws and programs.

The "special measures" sections in the Racial Discrimination Act (RDA)
and the Sex Discrimination Act (SDA) have received most attention when
they have been challenged by persons outside the eligible group. These
have included challenges to land rights laws by non-members of Aboriginal
groups (Gerhardy v Brown), and challenges by men to programs specifically
addressing the needs of women (Proudfoot v HREOC). Most sections of the
RDA and SDA are drafted in race or gender neutral terms --that is, they
address discrimination "on grounds of race" or "on grounds of sex". Non-neutral,
"race-conscious" or "gender-conscious" measures have to be defended by
the special measures sections.

This aspect of special measures is less relevant under the DDA. A person
clearly cannot use the DDA to complain that they have been discriminated
against because they do not have a disability, or because they do not
have a disability that makes them eligible for a particular program, benefit
or opportunity. Similarly, they could not complain that they have been
discriminated against because they are not an associate of a person with
a disability.

However, the "special measures" section of the DDA may be significant
in some situations:

  • Special measures may be important where actions intended to ensure
    equal opportunity or access are seen as less favourable treatment. For
    example, a person with a disability may object to being asked to identify
    any specific requirements. But such requests are permitted where they
    are reasonably intended to give equal access. Another example may be
    where the method for providing access is not the one preferred by a
    person with a disability. Section 45 may apply in this situation if
    the method was reasonably intended to provide equal access, although
    this would need to be demonstrated.

  • Special measures may also be important where actions which are reasonably
    intended to address disability-related requirements disadvantage some
    people with a disability. Given the diversity of disability, there may
    be some tensions between the requirements of fully equal access for
    different people with a disability. For example, electronic induction
    loops which make it easier for people using hearing aids to access communications
    may cause interference for people whose hearing aids are not compatible
    with these loops. The special measures section could apply here to protect
    against liability where reasonable measures have been taken to balance
    the conflicting needs.

5.3.2 Superannuation and Insurance

Under DDA section 46, a person can refuse to offer insurance or superannuation,
or to discriminate in the conditions on which either is available, if
the discrimination is reasonable according to actuarial and statistical
data and any other relevant factors. Although some Commonwealth programs
involve insurance and/or superannuation, section 46 is not a general exemption
for such programs, and is not relevant to issues of equal access to information
and communications.

5.3.3 Acts Done Under Another
Law

DDA section 47 outlines a number of exceptions. In particular, actions
in direct compliance with any other law were exempted until 1 March 1996.
After this date, actions which comply with laws prescribed for this purpose
by regulation are exempt. The Attorney-General has requested all Ministers
(and State and Territory Attorneys-General) to review the laws in their
area for consistency with the DDA and to identify any laws where regulations
are required and justified. These reviews should identify any conflicts
which Standards need to address. However, in the specific area of accessibility
of Commonwealth government information and communications, it might be
possible to identify any difficulties arising from other laws separately
and earlier.

5.3.4 Infectious Diseases

Section 48 of the DDA exempts actions reasonably necessary to protect
public health where a person's disability is an infectious disease. This
exception does not appear to be sufficiently relevant to Standards on
equal access to Commonwealth government information and communications.

5.3.5 Charities

Section 49 exempts actions to give effect to charitable instruments
which benefit people who have a disability. This exception is not relevant
enough to Commonwealth government information and communications to require
further consideration here (nor, for the reasons given in the "special
measures" section, is it easy to see what legal difference this section
makes in any other circumstances).

5.3.6 Telecommunications

Section 50 of the DDA, which expired on 1 March 1996, temporarily exempted
payphones and public payphones. Extension of this exemption through Standards
would substantially alter obligations in the DDA and would likely not
be valid.

5.3.7 Pensions and Allowances

Section 51 exempts discriminatory provisions on "pensions, allowances
or benefits" in the Social Security Act and a number of other Acts. It
also exempts acts which comply with those provisions. As with the exemption
under section 46, this is not a general exemption. The Commonwealth continues
to have the same obligations for equal access to information and communications
here as in other programs.

5.3.8 Migration

Section 52 of the DDA exempts any discriminatory provisions in the Migration
Act and its regulations from Divisions 1 and 2 of Part 2 of the DDA. It
also exempts anything done "in relation to" the administration of the
Migration Act and regulations.

This exemption might appear to cover communication and provision of
information in relation to the Migration Act and its administration, because
it is drafted more broadly than necessary to protect decisions authorised
by that Act and regulations. However, reproducing a similar exemption
in Standards about government information and communications would serve
no clear public policy purpose.

5.3.9 Combat Duties and Peacekeeping
Services

Sections 53 and 54 of the DDA exempt employment, engagement or appointment
for combat and related duties or peacekeeping service in either the Australian
Defence Force or the Australian Federal Police. These sections concern
employment issues only, and are not general exemptions for these bodies
from the DDA.

5.3.10 Exemptions Granted by the
Human Rights and Equal Opportunity Commission

Section 55 of the DDA permits HREOC to grant temporary exemptions for
up to five years at a time. No criteria or procedure for granting exemptions
are set out in the DDA. Exemptions must, however, be gazetted and there
is provision for review by the Administrative Appeals Tribunal. HREOC
has developed guidelines to consider applications for exemption, including
provision for comment from interested parties. These guidelines are based
on the general administrative law principle that the power to grant exemptions
must be exercised in a way that promotes the objects of the law.

The power to grant exemptions from the DDA does not extend to granting
exemptions from Standards. Such a power, in HREOC or some other decision
maker, would need to be specifically provided for in the Standards or
possibly by amendment of the DDA.

6. Agencies Covered

6.1 Coverage of all Commonwealth Departments
and Authorities

Under section 29 of the DDA all Commonwealth agencies responsible for
information or communication in the administration of Commonwealth laws
or programs must provide equally effective access. These obligations,
and the possible coverage of DDA Standards, are not restricted to agencies
who have specific responsibilities for information and communications.

The position of the courts and the Parliament in relation to the DDA
and possible Standards needs to be considered further (see below at 6.3
and 6.4).

6.2 Coverage of non-Commonwealth bodies

DDA section 29 covers any agency which administers Commonwealth laws
or programs.

The Commonwealth may also be liable under the DDA for discrimination
where laws or programs are administered by others. A person who causes,
instructs, induces, aids or permits another person to do an unlawful act
is also liable for the act under section 122. Under section 123, the Commonwealth
is liable for the conduct of its servants or agents except where it shows
that it has taken reasonable precautions to avoid the discrimination.

Section 31 allows the development of Standards on administration of
Commonwealth laws and programs for people with a disability generally,
not only where programs are administered by the Commonwealth itself.

The issue of whether DDA Standards should be applied (ultimately, if
not initially) to bodies other than the Commonwealth should be considered.
Bodies which might administer Commonwealth laws or programs include State
or local government authorities, community organisations, State courts,
police, and correctional authorities.

6.3 Position of the Courts

Courts are referred to here because:

  • their activities depend on a high level of communication;

  • there are a number of serious concerns about equally effective communication
    for people with a disability in the courts;

  • the Justice Statement is working on equal access to and treatment
    in the courts, and it is appropriate to consider whether DDA Standards
    can contribute to this.

Federal courts, and State courts when exercising Federal jurisdiction,
are clearly engaged in "administration of a Commonwealth law". As such,
they could be covered by DDA Standards under section 31.

However, it may be doubtful whether courts and judicial officers can
be liable for "unlawful acts" under the DDA. Non-compliance with the DDA
is an "unlawful act". However, a complaint to HREOC is the only way to
enforce the DDA and the Standards, and it seems inappropriate for reviewing
decisions or practices of courts. If DDA Standards are to apply to procedures
and decisions of the courts (rather than only to the facilities provided
to the courts by the Executive), other means of enforcement may need to
be considered. These may, for example, involve adding to the Rules of
Court or developing court charters.

The same constitutional problem does not apply to the DDA and Standards
covering facilities provided to courts by the Executive (e.g. communications
equipment in court houses, transcription services etc.). However, equally
effective communication and information in court is not restricted to
these issues. A number of issues were identified in HREOC's comments on
the Access to Justice Advisory Committee Report. They more closely involve
court decisions and procedures:

  • Under DDA section 7, discrimination on the basis that a person with
    a disability uses an "auxiliary aid" is unlawful. In the context of
    court proceedings this would include failure to accord equal treatment
    to a person who uses a computer for communication, or a wheelchair for
    mobility.

  • DDA section 8 makes unlawful discrimination on the basis that a person
    with a disability is accompanied by an interpreter, reader, assistant,
    or carer who provides interpretive, reading or other services. In the
    context of court proceedings, this would include not only formal language
    interpreting services such as sign language, but also:

a) more personalised language interpreting, for example between the
court and someone whose speech is not easily understandable because of
a disability such as cerebral palsy, but who can make her or himself understood
through a person accustomed to this role (who may not need to be an accredited
interpreter);

b) interpreting which goes beyond simple translation to include interpreting
of concepts and processes. This may be particularly relevant to enable
a person with an intellectual or learning disability to participate on
equal terms;

c) other services as support person and/or advocate where required by
a person because of her or his disability to permit equally effective
understanding of and participation in the proceedings.

The fact that the court does not allow equivalent services for people
who do not have a disability would not be an answer to a complaint of
discrimination: see DDA sections 5(2), 7 and 8.

These provisions of the DDA seem to indicate that the obligation to
make adjustments so that a person with a disability has an equal opportunity
to participate effectively in legal proceedings is at least as extensive
as similar obligations concerning persons of non-English-speaking background.
Moreover, they are more specifically legally recognised under Australian
discrimination law.

Any Standard in this area should also consider how the use of necessary
assistants and assistive devices by people with a disability (whether
as parties, witnesses, legal representatives, judicial officers, jury
members or in any other relevant capacity) is facilitated rather than
hindered by courts, tribunals and other agencies. Where it is not appropriate
that the person supply all their own needs in this area, it may be appropriate
for the agency concerned to provide that assistance.

These comments also emphasise the point made earlier that equally effective
communication and information is not restricted to issues about equipment
and the form in which information is provided (e.g. print, sound, Braille,
etc). Standards should consider issues affecting people whose disability
involves other comprehension or communication difficulties.

6.4 Position of Commonwealth Parliament

Parliament authorises significant Commonwealth information and communication
functions.

As with facilities provided to the courts, communication facilities
provided to the Parliament by the Executive are covered by DDA section
29 (and in many cases by section 23 and/or 24) and could be covered by
DDA Standards. However, it is not at all clear that "administration of
Commonwealth laws and programs" covers decisions, procedures and actions
of the Parliament itself. Coverage of these may require either amendment
of the DDA or other action by the Parliament.

7. Comparative Material: The Americans
with Disabilities Act

U.S. Department of Justice regulations under the Americans with Disabilities
Act contain a number of provisions about information and communication
which apply to State and local governments.

Under these regulations there is a general duty on public bodies to
ensure their communications with people with a disability are equally
effective as their communication with others. However, this is subject
to two limitations:

a) a public entity does not have to make adjustments which would fundamentally
alter the nature of its services or program; and

b) a public entity does not have to make alterations which would impose
an undue financial or administrative burden.

The "fundamental alteration" limitation can be compared to the limitation
in DDA section 29 and DDA Standards to issues of administration of laws
and programs rather than to their substantive content. As discussed above,
there is no "undue burden" limitation in DDA section 29, but some of the
same issues may be covered by the reasonableness element of indirect discrimination.

The requirement to ensure equally effective communication specifically
includes making available auxiliary aids and services where necessary.
The regulations and Department of Justice manuals provide a number of
examples.

Examples of adjustments for Deaf people and people with a hearing impairment
include interpreters, note takers, computer aided transcription services,
written materials, telephone handset amplifiers, assistive listening systems,
hearing aid compatible telephones, closed caption decoders, open and closed
captioning, TDDs (TTYs), Videotext displays, and exchange of written notes.

Examples of adjustments for people with vision impairments include readers,
taped texts, audio recordings, Brailled materials, large print materials,
and assistance in locating items.

Examples for people with speech impairments include TDD (TTYs), computer
terminals, speech synthesisers, and communication boards.

No examples are given about the communication and information needs of
people with an intellectual disability. However, these requirements seem
to be covered in the general duty to ensure equally effective communication.

The U.S. Department of Justice Manual says that the type of auxiliary
aid or service necessary depends on the length and complexity of the communication.
In particular, it emphasises the need for equally effective communication
in courtrooms, and in medical and police settings. It also emphasises
that access is required for all participants in a program, not only for
the people who directly receive the services. For example, the presence
of the public in court and in the legislature is seen as an important
part of the accountability of those activities. The manual therefore emphasises
equal communications access for people with a disability in these settings.

The U.S. regulations say that people with a disability should be able
to request the auxiliary aid of their choice. Public bodies are required
to give "primary consideration" to that preference. However, they do not
have to give effect to the person's preference if they can show that another
means of communication is available and equally effective, or that using
the person's preferred means would fundamentally alter the nature of the
program or impose an undue burden. Because of the diversity of requirements
of people with a vision or hearing disability, the Department of Justice
Manual stresses the importance of consulting with the individual to identify
effective means of communication.

Telephone communications are addressed separately. Public entities that
use the telephone must provide equally effective communication to people
with a disability. Where relay services are available, the U.S. Department
of Justice indicates that "generally" these may meet requirements for
TDD (TTY) access. (Note that relay services in the U.S. are required to
provide access for people using ASCII computer codes as well as the Baudet
code which TTY/TDDs use.) An exception to this is that where a public
entity provides emergency services, it must provide direct TDD access.
TTY numbers may be separate from the main (voice) numbers, but must be
both equally effective and well publicised. Fitting of telephones with
voice amplification is encouraged but not required.

Additional fees are not permitted for actions necessary to ensure equally
effective access.