DARU Conference - 26 March 2012

Twenty Years of the Disability Discrimination Act

Evaluating the DDA: Where is it now, and how did it get here?Beth Gaze, Associate ProfessorMelbourne Law School, University of Melbourne

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The DDA after 20 years

Origins and hopes for the Act How was it supposed to bring about social change?

How has it fared in operation: ‘legal’ advances – case law and legislative

amendments Broader context – advances within the framework

set by law

Current status: how useful is the Act? what are the problems?

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DDA 1992: Innovations and achievements at the Act’s adoption

Innovations Uniform national disability discrimination law Improved many areas of disability discrimination

law Prohibits direct and indirect disability

discrimination permits some special measures Introduced the formula of requiring special

services or facilities limited only by unjustifiable hardship

Provision for Standards, Action plans Disability Discrimination Commissioner

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What is the DDA intended to achieve? How does anti-discrimination law bring about change? Change is needed at two levels:

Broad – group or society wide; systemic change Individual – protect the rights of individuals who are

affected by discrimination▪ The two levels are interdependent

Mechanisms of change: legal decisions, legislative change, and bargaining in

‘the shadow of the law’ development of guidelines, codes of practice and

educative processes ▪ the role of the DD Commissioner is extremely important.

What level of change and by what mechanisms does the DDA approach this task?

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Some problems with the DDA: substance of the law

The scope of the law Coverage limited in some areas▪ no protection against vilification ▪ no explicit requirement to provide reasonable

adjustments;▪ omissions such as the absence of a defence of

unjustifiable hardship in relation to an already enrolled student

No requirement to take positive action No public agency to assist with enforcement

Overall: extent of change the law requires is not clear

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Some problems with the DDA: enforcing the law Problems of process

Lack of public enforcement assistance means that enforcement is left entirely up to the disadvantaged individual

Since 2000 cases have to go to the Federal Court or Federal Magistrates Court of they do not settle at conciliation in the AHRC ▪ Relatively formal process▪ Need for legal representation▪ Costs awarded against the loser

Lack of or limited legal aid▪ merits test requires ‘public interest,’ generally requires a group to

be affected – denies the significance of human rights claims▪ Legal aid provision varies between states and territories

Disparity of size and resources of parties to DD cases ▪ power imbalances not addressed by the DDA or the Courts

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Litigation history since 2000:decision of substantive claims

High Court 2 cases – both unsuccessful – success rate of 0%

Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 X v Commonwealth of Australia (1999) 200 CLR 177

Full Court of the Federal Court 12 cases (including Purvis), 2 successful – success rate of 17%

– both involve schools and accommodation for hearing impairment Hurst v Queensland (2006) 151 FCR 562; [2006] FCAFC 100 Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197

Federal Court 47 Cases, 8 successful (includes Clarke and Hurst) – success rate of 17%

Federal Magistrates Court 21 successful cases – many more unsuccessful

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The result – enforcement today

Unlike HREOC tribunal (pre 2000), the federal courts are not seen as user friendly for people with a disability

Court interpretation of the laws: lack of judicial understanding / sympathy with the law’s

objects/ those the laws are designed to assist. Technical approach to interpretation Courts state that decision only applies to the facts of the case

Result: the only avenue for enforcement is individual litigation, but this has not been effective to apply pressure for change. In the cases that are successful, damages awarded have been

very low – no incentive to enforce the law While state and territory jurisdictions have no-cost

enforcement through tribunals, their legislation can be weaker, and awards lower.

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2009 Amendments

Not yet tested in litigation To avoid doubt, a disability that is otherwise covered by this

definition includes behaviour that is a symptom or manifestation of the disability

New definitions of reasonable adjustment, unjustifiable hardship Implicit obligation to make reasonable adjustments ▪ Failure to make reasonable adjustments incorporated as an aspect of both

direct and indirect discrimination New definition of indirect discrimination based on the SDA model condition or requirement P cannot meet because of their disability, effect of disadvantaging R has onus of proof that the condition or requirement is

reasonable General exceptions for inherent requirements (s.21A) and

unjustifiable hardship (s .21B) 2011-12 Consolidation process

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Do the courts and legal system comply with the DDA?

Do courts provide a service? Registry / judicial officers

Do they impose a condition or requirement? Eg that a person must have legal

representation or must be able to interact as if they had no disability

Do the courts make reasonable adjustments for people with a disability? What adjustments should they make?