Revisiting Federal disability discrimination and human rights legislation

Thanks to Dave Bath of Balneus for alerting North Coast Voices to the following Senate Legal and Constitutional Affairs Committee inquiry:

On 4 December 2008 the Senate referred the provisions of the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 to the Standing Committee on Legal and Constitutional Affairs for inquiry and report.

This bill amends the Disability Discrimination Act 1992 (the Act) to implement recommendations made by the Productivity Commission in its 2004 review of the Act. The bill also implements the House of Representatives Standing Committee on Legal and Constitutional Affairs' recommendation to remove the 'dominant purpose' test from the Age Discrimination Act 2004 (Older People and the Law, 2007), and makes various other amendments to the human rights legislation going to the general operation of human rights law in Australia.

Key amendments to the Act include those that seek to:

• make explicit that refusal to make reasonable adjustments for people with disability may also amount to discrimination;
• make the defence of unjustifiable hardship available in relation to all unlawful discrimination on the ground of disability, except harassment and victimization;
• clarify matters to be considered when determining unjustifiable hardship;
• clarify that the onus of proving unjustifiable hardship falls on the person claiming it;
• make clear that the definition of disability includes genetic predisposition to a disability and behaviour that is a symptom or manifestation of a disability;
• replace the 'proportionality test' in the definition of indirect discrimination with the requirement to prove that the condition or requirement imposed has the effect of disadvantaging people with the disability of the aggrieved person;
• shift the onus of proving the reasonableness of a requirement or condition in the context of indirect discrimination from the person with disability to the respondent, and
• extend the power to make standards under the Act.

The bill also seeks to assist people with assistance animals and service providers by recognising animals accredited either under a State and Territory law or by a relevant organisation, and by clarifying each party's obligations. The bill also consolidates the provisions in the Act relating to carers, assistants and aids, and addresses the issues raised by the Full Federal Court in Forest [2008] by clarifying that discrimination on the basis that a person possesses or is accompanied by a carer, assistant or aid, is discrimination on the basis of disability.

The bill also includes proposed amendments to the Human Rights and Equal Opportunity Commission Act 1986. This implements the Government's decision to change the name of the Human Rights and Equal Opportunity Commission to the Australian Human Rights Commission. Other key amendments to that Act include the extension of the period within which a person can take a terminated complaint to the Federal or Federal Magistrates Court from 28 days to 60 days, and a number of amendments to improve the efficiency of the complaints handling process, such as allowing the President of the Commission to finalise a complaint where the complainant expresses no intention to pursue the matter.

The reporting date for the inquiry is 24 February 2009.

The Committee invites written submissions by Monday, 12 January 2009. Submissions should be sent to:

Committee Secretary
Senate Standing Committee on Legal and Constitutional Affairs
Department of the Senate
PO Box 6100
Parliament House
Canberra ACT 2600
Australia