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

 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? 2

 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 3

 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? 4

 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 5

 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 6

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 7

 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. 8

 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)  Consolidation process 9

 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? 10