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. This article will examine some of the most important changes, namely the:
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.
It is accordingly unlawful not to make reasonable adjustments where:
A ‘reasonable adjustment’ is any adjustment that does not impose an unjustifiable hardship on the person. 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’.
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:
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. 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.
The provisions in the DDA about assistance animals have been clarified. The law was left uncertain after the case of Queensland (Queensland Health) v Forest (Forest) . 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’. 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.
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’ as well as leading to ‘absurd and unwanted consequences’.
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. Section 54A clarifies the position of service providers interacting with people using assistance animals. It provides that it is not unlawful:
The new assistance animal provisions provide much needed clarification of the rights and responsibilities of both people with assistance animals and service providers.
From 5 August 2009:
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