Law Society Journal 2009: Recent changes to the Disability Discrimination Act 1992 improve protection of disability rights
Improved protection of disability rights: Disability Discrimination Act 1992 amended
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Significant amendments to the Disability Discrimination Act 1992 (DDA), which came into effect on 5 August 2009, clarify its operation in
many areas, align some of its key definitions with other federal discrimination
Acts and represent a significant improvement in the protection of the rights of
people with disability.[1] This
article will examine some of the most important changes, namely the:
- explicit duty to make reasonable adjustments;
- changes to the definition of indirect discrimination; and
- new assistance animal provisions.
Reasonable Adjustments
Arguably, the most significant change to the DDA is the introduction of an
explicit duty to make reasonable adjustments. The DDA now expressly provides
that the failure to make ‘reasonable adjustments’ may constitute
either direct or indirect
discrimination.[2]
It is accordingly unlawful not to make reasonable adjustments where:
- this has the effect of treating someone with a disability less favourably
than someone who does not need the adjustments in the same circumstances (direct
discrimination);[3] or - a person with a disability cannot, because of their disability, comply with
a condition or requirement without reasonable adjustments and the failure to
make reasonable adjustments disadvantages people with the disability (indirect
discrimination).[4]
A
‘reasonable adjustment’ is any adjustment that does not impose an
unjustifiable hardship on the
person.[5] This is a significant
improvement to the protection of the rights of people with a disability because
the High Court had expressly rejected that former s 5(2) of the DDA imposed an
‘implied’ obligation to accommodate or had the effect that a failure
to provide accommodation would itself constitute ‘less favourable
treatment’.[6]
Indirect Discrimination
The primary definition of indirect discrimination in s 6 of the DDA has also
changed in a number of respects. It requires a person with a disability to show
that:
- another person requires or proposes to require them to comply with a
requirement or condition; - because of their disability they cannot comply with a requirement or
condition; and - the requirement or condition disadvantages people with the
disability.
Importantly, it is no longer necessary to prove
that a substantially higher proportion of persons without the disability comply
or are able to comply with an imposed requirement or condition.
The new definition also aligns the DDA with the Sex Discrimination Act
1984 and the Age Discrimination Act 2004 by shifting the burden of
proving the reasonableness of the condition onto the
respondent.[7] Previously,
complainants bore the onus of proving a condition was not reasonable.
However, the new s 6 definition still retains the problematic requirement
that an applicant show that they are ‘unable’ to comply with the
requirement or condition.[8]
Assistance animals
The provisions in the DDA about assistance
animals[9] have been clarified. The
law was left uncertain after the case of Queensland (Queensland Health) v
Forest (Forest)[10]. In Forest, the majority of the Full Federal Court found that an applicant
wishing to establish they had been discriminated against within a protected area
of public life because they were accompanied by an assistance animal had to also
show that the relevant treatment was ‘on the ground of their
disability’.[11]They
ultimately found that:
The ground on which Queensland Health discriminated against Mr Forest, within
the meaning of s 9(1), is that his dogs were ill-behaved and ill-controlled and
there was inadequate evidence of proper assistance dog training. Thus Queensland
Health did not discriminate against Mr Forest on the ground of his disability,
even though it may have discriminated against Mr Forest within s 9 of the
Act.[12]
The majority’s reasoning was criticised at the time as being
‘overly technical and artificial’ and ‘eroding the intended
protection and objectives of the
DDA’[13] as well as leading to
‘absurd and unwanted
consequences’.[14]
New s 8 of the DDA clarifies that discrimination on the ground of being
accompanied by an assistance animal (or a carer, assistant or disability aid) is
to be treated as discrimination on the ground of a disability.
New s 9(2) provides a comprehensive definition of ‘assistance
animal’ making it clear that it includes any kind of animal that is
appropriately trained.[15]Section
54A clarifies the position of service providers interacting with people using
assistance animals. It provides that it is not unlawful:
- to request or require that the assistance animal remain under the control of
the person with the disability; or their associate
(s54A(2))[16]; - 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 (s54A(4)).
- they reasonably suspect that the assistance animal has an
- to request the person with the disability to produce evidence that the
animal meets the definition of ‘assistance animal’ in s 9(2); or the animal is trained to meet standards of hygiene and behaviour that
are appropriate for an animal in a public place (s54A(5)); and - to discriminate on the ground that a person has the assistance animal if the
person with the assistance animal fails to provide appropriate evidence that the
animal has the appropriate accreditation or training (s54A(6)).
The
new assistance animal provisions provide much needed clarification of the rights
and responsibilities of both people with assistance animals and service
providers.[17]
Other key changes
From 5 August 2009:
- the defence of unjustifiable hardship will now be available in all areas
covered by the DDA except harassment and requests for
information.[18] - a court must now consider whether funding is available to the respondent
when determining whether avoiding discriminating would impose an unjustifiable
hardship;[19] and - the ‘inherent requirements’ defence will now be available in a
broader range of employment
circumstances.[20]
Practitioners
should also note that from 5 August 2009:
- the legal name of the former Human Rights and Equal Opportunity Commission
has changed to the Australian Human Rights Commission; and - the time for making an application for all unlawful discrimination
complaints (including disability discrimination) to the Federal Court or the
Federal Magistrates Court has been extended from 28 to 60 days after the date
the complaint is terminated by the
Commission.[21]
[1] See the Disability
Discrimination and Other Human Rights Legislation Amendment Act 2009(Cth).
[2] See DDA, s 5(2) and s 6(2).
[3] DDA, s 5(2) (direct
discrimination).
[4] DDA, s 6(2)
(indirect discrimination).
[5] DDA, s 4.
[6] Purvis v NSW and
the Human Rights and Equal Opportunity Commission (2003) 217 CLR 92, 159
[217] (Gummow, Hayne and Heydon JJ).
[7] DDA, s 6(4). The Explanatory
Memorandum explains that ‘it is reasonable to expect that the person
imposing the requirement or condition would have better access to information to
explain or justify the reason for it’, see: Explanatory Memorandum
Disability Discrimination and Other Human Rights Legislation Bill 2008 (Cth), 10
[41-12].
[8] For further discussion
of this requirement, please see Federal Discrimination Law at http://www.humanrights.gov.au/legal/FDL/index.html (viewed 24 July 2009).
[9] See
DDA, ss 8, 9 and 54A.
[10] [2008] FCAFC 96.
[11] [2008]
FCAFC 96, [111]-[118] (Spender and Emmett
JJ).
[12] [2008] FCAFC 96, [115]
(Spender and Emmett JJ).
[13] Ben
Fogarty, ‘Dog gone: Disability discrimination law and assistance animals
in light of Queensland v Forest’ Law Society Journal 75 (2009),
75-77,76.
[14] See Dr Larry
Laikind, ‘Assistance Animals: Has the Full Federal Court removed the
rights of those who rely on them?’ Proctor (October, 2008), 21-23,
22.
[15] The scheme falls short,
however. of establishing a national accreditation scheme.
[16] Section 54A(3) provides
that for the purposes of subsection (2), an assistance animal may be under the
control of a person even if it is not under the person’s direct physical
control.
[17] See Explanatory
Memorandum Disability Discrimination and Other Human Rights Legislation
Amendment Bill 2008 (Cth), 19, [109] –
[111].
[18] DDA, ss 11, 21B and
29A.
[19] See DDA, s11.
[20] See DDA, s
21A.
[21] See s 46PO(2) of the Australian Human Rights Commission Act 1986.