People With Disabilities ACT acknowledges the Ngunnawal People as the traditional owners of the land on which we work.
Copyright June 2014 People With Disabilities ACT Inc
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About People With Disabilities ACT (PWD ACT)
PWD ACT is a not for profit consumer run systemic advocacy organisation which represents the interests of people with disabilities in the ACT. PWD ACT Inc. works to improve access to all amenities and to all formats of information and activities of the community. PWD ACT Inc. is a peak body which seeks to inform the community about disability issues. PWD ACT advocates from a human rights perspective and acknowledges the UN Convention on the Rights of People With Disabilities.
PWD ACT has not addressed every question posed in the Discussion Paper, instead we have answered most relevant to our members as people with disabilities.
Objects of the Discrimination Act 1991
PWD ACT supports the amendment of the objects of the Act to refer to ‘substantive equality’. Our experience as people with disabilities is that reasonable adjustments and special measures are necessary to address our past disadvantage and to achieve true equality. We support the recognition of the right to equality. The objects should be amended to make them consistent with the equality guarantees in the ACT Human Rights Act 2004. PWD ACT also supports the inclusion of a provision requiring a beneficial interpretation of the legislation. This provision would support and work in conjunction the current common law principles and provisions of the ACT Interpretation Act which mandate that a beneficial legislation be given a beneficial interpretation to support its objects.
The definition of discrimination should be amended to a single broad definition which clearly includes both direct and indirect discrimination. This would simplify the framing and presentation of complaints and make the Discrimination Act easier to understand.
The definition of discrimination should also be amended to include discriminatory conduct on the basis of more than one attributes. PWD ACT is aware that many instances in which people with disabilities experience discrimination in the same incident on the basis of both their disability and on the basis of other attributes of their identity. An example is a woman with a disability who is discriminated against in her parenting role both on the grounds of her disability and her gender. Many older people experience discrimination in circumstances in which it is difficult to determine whether the discrimination is due to their age or their disability. The intersection of the various elements of a person’s identity means that it is not practical to address discrimination on the basis of one attribute at a time.
PWD ACT supports the amendment of the definition of ‘discrimination’ along the lines of the definition in the Canadian legislation referred to on page 17 of the Discussion Paper.
Duty to Make Reasonable Adjustments
PWD ACT considers it important that a duty to make reasonable adjustments to accommodate the needs of a person with a disability should be made explicit in the Discrimination Act. This duty recognises in most situations employers and service providers are in a more powerful position than a person with a disability and are better placed than the person with a disability to take the action which would turn a potential situation of discrimination into one of non-discrimination. This would reduce discrimination and reduce the need for people with disabilities to make discrimination complaints.
Factors to be considered in Assessing the Reasonableness of Adjustments
PWD ACT supports consideration of the approach taken in the Victorian Equal Opportunity Act referred to on page 18 of the Discussion Paper. However, we qualify this support with the view that in the application of this approach the person’s disability is irrelevant to this assessment as to include the person’s disability in the assessment is to resort to the medical model of disability which is contrary to the human rights approach of the Act. The assessment should focus on the access barriers and the required adjustments and not on the person’s disability. PWD ACT also recommends that the assessment should include the consequences of not making the adjustment or accommodation as well as the consequences of doing so.
PWD ACT also supports the inclusion in the ACT Discrimination Act 1991 of an explicit duty to make reasonable adjustments and accommodations on the basis of other attributes including culture, age gender and carers responsibilities. Many people with disabilities will require adjustments and accommodations on the basis of these attributes.
PWD ACT supports the inclusion of harassment and vilification on the basis of disability should be included in the definition of disability discrimination. See our comments below under this heading.
PWD ACT supports the inclusion in the ACT Discrimination Act 1991 of a positive duty to promote equality. The foundation of this duty is the recognition of the fact that the complaints process daunting and uninviting for many people with disabilities. The onus should not be on the persona with a disability to initiate the process to have a discriminatory situation rectified because they are not in a position to do this. This duty should be imposed on those best able to do so, namely, employers and providers. In particular this duty should be imposed on the ACT Government and its authorities and entities. The enforcement of this duty should be supported by reporting and monitoring requirements and penalties where appropriate. Care needs to be taken with the framing of this duty if it is also extended to include community organisations funded by the Act Government. PWD ACT is reluctant to endorse the extension of this duty to small community organisations and small private sector organisations as to do so may invite resistance to the idea which would result in the recommendation being rejected.
Definition of Disability
PWD ACT refers to and supports the comments made by Advocacy for Inclusion in its submission.
The definition of ‘Disability’ in the Act Discrimination Act 1991 should be amended to use the social model of disability. The current definition which uses a medical model to define disability is deficient in that it excludes many people who cannot demonstrate a medical diagnosis. PWD ACT conducts its advocacy on the basis of a social model of disability which sees disability as occurring when a person’s impairment interacts with societal barriers in a society which does not accommodate the access needs of people with their impairment. This definition of disability is significantly broader than the existing definition and addresses the limitations of medical terminology which excludes people with various disability identities from the protection of the Discrimination Act.
Areas of discrimination
PWD ACT cautiously supports the amendment of the Act to prohibit discrimination in all areas of life with an exception for private conduct. This approach though seemingly harsh is the approach taken to the criminal law and other laws and has worked practically in the area of race discrimination. If the current specified areas of coverage are retained, PWD ACT supports extending the areas of coverage of the Discrimination Act but suggests that this should be done carefully. PWD ACT strongly supports the extension of the coverage of the Act to sport. PWD ACT has recently advocated on recent instances of discrimination in sport such as the exclusion of persons using hand cycles from participation in the Canberra Marathon despite the fact that this event is sponsored by the ACT Government. The further extension of the Act to private competitions such as talent quests and film festivals would need to be drafted with care.
PWD ACT also strongly argues for a specific provision to apply the Discrimination Act to activities of the ACT Government, government authorities and Government owned corporations and business enterprises including activities which they fund and sponsor. The Discrimination Act should apply to the AFP.
In relation to assistance animals PWD ACT supports the retention of the current separate provision in the Act. We don’t believe the existence of this separate provision causes confusion. However, PWD ACT would also argue that this protection should only apply to assistance animals which are provided and trained by appropriately accredited organisations.
PWD ACT strongly advocates that there should be no exemptions in discrimination laws for work-related discrimination. In particular, there should be no exemptions for discrimination by qualifying bodies on the basis of an attribute that a person had in the past but no longer has. Both the Commonwealth and ACT Commissions report that employment discrimination complaints represent the largest percentage of their complaints and that these complaints are the most intractable and difficult to resolve. The discriminatory practices and attitudes of qualifying bodies are a major barrier to the employment of people with disabilities.
PWD ACT would support an extension to the Discrimination Act to protect people from discrimination on the basis of their physical features. People with disabilities often encounter discrimination on the basis of physical features which may be an outcome or consequence of a physical disability eg what is regarded is physical deformity. PWD ACT acknowledges that care needs to be taken in defining this ground of discrimination.
PWD ACT supports the inclusion of employment status as a ground of discrimination. We do so because people with disabilities experience much higher rates of unemployment and employment disadvantage than the general community.
PWD ACT also points out that many people with disabilities also encounter discrimination and harassment on the grounds of speech impairments. This is especially so for people who have cerebral palsy or people who are deaf or hearing impaired and that this is an attribute which needs to be included and addressed.
PWD ACT supports the extension of the coverage of the vilification provisions in the ACT Discrimination Act to cover vilification on the basis of disability. People with disabilities are vulnerable to vilification. This is especially so in the social media. PWD ACT has dealt with a situation in which a person who lodged a discrimination complaint was vilified for doing so on a blogging website. What was disappointing is that the particular website was sponsored by a major ACT Government owned corporation. There are real problems for small advocacy organisations like PWD ACT in dealing with this form of vilification as we inevitably run up against the barriers and arguments posed by the advocates of personal freedom.
PWD ACT supports the strengthening of vilification provisions to counter the possible watering down on the vilification provisions of the Commonwealth Act.
PWD ACT acknowledges the practical problems arising from the need for a person alleging vilification to prove that the vilifying conduct was ‘a public act.’ However, if the vilification provisions are extended to cover acts done otherwise than in private, this should be done with great care so as not to excessively intrude into the private sphere.
PWD ACT supports the removal of the exception for acts done under the statutory authority of an ACT Law for the reasons stated in the Discussion Paper relating to the operation of the ACT Human Rights Act 1904. The Discrimination Act can include an exception for an act done under an Order of a Court or Tribunal which is mandatory and specific about conduct which must be performed in the absence of any non-discriminatory alternative.
The exceptions for religious bodies and religious educational institutions should be redrafted and tightened up so that their application to people with disabilities is only in circumstances in which the disability is relevant to religious observance or practice. Generally, the attribute of disability should not be relevant to religious observance or practice. Religious institutions and bodies operate schools and provide many social and community services and people with disabilities should not be denied access to education and to these services by purported reliance on this exception.
Voluntary Bodies Exception
The voluntary bodies exception should be retained but should be modified so as only to apply to benefits, facilities or services to members of the body. The exception should not apply where a voluntary body provides services or facilities for the general public. The Discrimination Act should allow for the existence and operation of single disability organisations by treating this membership restriction as a special measure for which an exemption is obtained.
PWD ACT is aware that participation in sport is a major area in which our members experience disadvantage and discrimination. The example of the exclusion of people using hand cycles from the Canberra Marathon is a high profile example of discrimination in participation in sport. There are many less public instances based on discriminatory attitudes. The Discussion Paper does not address this issue.
The Discrimination Act should expressly cover sport and not assume it is covered under goods, services and facilities. The exception for sport should be considerably narrowed so as to only apply to competitive sport in a way which is necessary to protect the integrity of the sport.
Exceptions for Genuine Occupational Qualifications and Inability to Carry out Work
PWD ACT advocates for the narrowing of these exception. The experience of people with disabilities who are seeking employment is that these exceptions are used to exclude people with disabilities from occupations and employment. This exception needs to be narrowed as one of the measures to address the level of employment disadvantage experienced by people with disabilities. For both these exceptions, there should be an obligation on the employer or prospective employer to make or consider making reasonable adjustments before the employer is able to rely on these exemptions. The employer or prospective employer should be required to prove a claim of unjustifiable hardship.
Measures Intended to Achieve Equality
PWD ACT supports the inclusion in the ACT Discrimination Act of a special measure provision along the lines of the provision in the NSW Act. This provision should include a requirement for consultation with the persons for whom the special measure is made.
Insurance and Superannuation
PWD ACT is aware that people with disabilities experience considerable discrimination in access to employment and superannuation. The exemptions relating to employment and superannuation should be amended to limit their scope in relation to people with disabilities to matters relating to the viability of the insurance or superannuation fund and the onus of proof should be on the insurer or superannuation provider. The provision in the draft Commonwealth Bill is a useful model.
PWD ACT believes that exemptions and exceptions to discrimination should contribute to the achievement of the objects of the ACT Discrimination Act. It should only be granted if it has a legitimate aim, is necessary and proportionate and is a reasonable limit on the discrimination and equality rights. The process for the notification, consideration and decision of exemption applications should be public and transparent and include a consultation and submission process.
The real or perceived fear of victimisation is a major issue for people with disabilities who encounter discrimination and a major barrier to them in taking action to resolve the discrimination either informally by dialogue with the discriminator or formally by the Discrimination Act complaints process. The victimisation provisions should include the threat of detriment and conduct affecting a relative or associate. PWD ACT does not support the inclusion of ‘suspicion of conduct’.
Enforcement and Compliance
The ACT Government could do more to promote the Discrimination Act and the enforcement of its provisions. In particular, it could give the ACT Human Rights Office the powers and resources to conduct its own motion inquiries into areas of discrimination. While primary responsibility to complain about discriminatory conduct should rest with the individual, there should also be provision for a person to give their approval for their complaint to be brought by another person on their behalf. There is also merit in allowing the ACT Human Rights Commission to initiate a complaint which is then taken to the ACT Civil and Administrative Appeals Tribunal.
In relation to confidentiality of complaint proceedings, while there is merit in proceedings being confidential, it would be helpful to advocacy organisations to be able to publicise the outcomes of complaints. The work of advocacy organisations, especially in the disability sector, has been hindered by the use of confidentiality orders as parts of settlements of discrimination complaints. The restrictions which these orders impose on public discussion of the outcomes of these cases restrict public awareness of discrimination and its consequences and outcomes and in particular deny people the knowledge that discrimination can be complained about and resolved. While we are not certain how this might be achieved, there should be restrictions on the ability of the parties to include confidentiality provisions in settlements.
Burden of Proof
People with disabilities often cannot make complaints of discrimination or have those complaints resolved because the evidence of discrimination is not within their control but rests with the alleged discriminator. Burden of proof provisions in the ACT Discrimination Act, should be sufficiently flexible so that the burden rests with the party best able to satisfy it and that it can shift if necessary to accommodate revelations which come to light in the investigation or hearing of the matter. There are certain matters in which respondents and not complainants should bear the burden of proof. In particular, the respondent to a complaint should bear the burden on questions of reasonable adjustment and unjustifiable hardship. The burden should also be on a respondent to show that a protected attribute is not the reason for conduct which has been shown to be unfavourable when this is the basis of their defence.
ACAT and Representative Complaints
ACAT should be able to respond to a successful representative complaint with orders allowing monitoring of a respondent by the ACT Human Rights Commission or other appropriate authorities or advocacy organisations.
PWD ACT is aware of the dual disadvantage experienced by women with disabilities. PWD ACT refers to the submission to this consultation made by Women With Disabilities ACT and endorses the comments and recommendations made in this submission.
PWD ACT is also aware of the dual disadvantage experienced by people with disabilities from culturally and linguistically diverse backgrounds. These include difficulties in obtaining and using information which is presented in English only and information which is presented in a culturally inappropriate manner. The LRAC should consult with Ethnic Disability ACT which is the organisation representing people from culturally and linguistically diverse backgrounds.