In 2009, Australia introduced the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). This Act amended the Disability Discrimination Act 1992 (Cth) (DDA). The amendments resulted in the creation of an individual right of complaint in relation to breaches of CRPD by Australia, which can be investigated and conciliated by the Australian Human Rights Commission (AHRC). If not resolved through conciliation, a report can be prepared and tabled in Parliament. However, there is no right to access an Australian court in relation to a breach of the CRPD.
The scope of protected rights and grounds of discrimination are much narrower in Australia than under international human rights law. No comprehensive legislative, administrative, judicial or other protection of human rights currently exists in Australian domestic law.24 Although ad hoc human rights obligations exist through statute law, common law and the Constitution, human rights protection in Australia remains limited.
As a result, only part of Australia’s CRPD obligations have been implemented into domestic law. This piecemeal statutory framework of discrimination and equal opportunity laws fails to provide comprehensive uniform human rights protections. Although Victoria and the Australian Capital Territory have introduced limited human rights legislation,25 neither of these instruments give courts the powers to strike down laws inconsistent with human rights legislation, nor do they protect economic, social or cultural rights.
The DDA makes it unlawful to directly or indirectly discriminate against a person, group of people or their associates on the ground of disability, in certain areas of public life. The DDA provides a defence to discrimination, where the avoidance of discrimination would cause an unjustifiable hardship.26 Each of the Australian States and Territories has enacted similar legislation.
Complaints about breaches of the DDA can be made to the AHRC, the national independent commission administering human rights law, which can conciliate but not adjudicate complaints. If unresolved at the AHRC, the individual complainant must pursue their complaint through the federal courts.27.
The DDA also provides for the creation of Disability Standards which specify rights and responsibilities in relation to any area of unlawful discrimination.28 Currently standards have been passed in relation to Education, Transport and Access to Premises.29. (Refer to Articles 9 and 24)
As of 2010 the Federal Government has commenced a review of all federal anti-discrimination laws with the intention of consolidating all federal discrimination acts/anti discrimination laws into one comprehensive Act.
Limitations of the Disability Discrimination Act 1992 (Cth)
The rights of people with disability to non-discrimination are limited in six key areas:
failure to address intersectional discrimination;
ineffective complaints process;
lack of protection for systemic discrimination;
a lack of protection against vilification;
exemption clauses that allow discrimination on grounds of disability in migration, insurance and infectious diseases, pensions and allowances and combat and peacekeeping duties (see Articles 18, 25, 27, 28 and 29); and
a lack of community legal education outreach regarding individuals’ rights and protections under the DDA, in particular the lack of outreach to Aboriginal and Torres Strait Islanders communities and people with disability from non-English speaking backgrounds.
Some of these limitations are being considered as part of the consolidation process mentioned above.
