9 Equality before the law

The second object of the Disability Discrimination Act 1992 (DDA) is to ensure
equality before the law for people with disabilities. This chapter examines the
concept of equality before the law its treatment under the DDA and the
effecti!eness of the DDA in four areas in which inquiry participants raised
particular issues"
#ensurin$ quality accommodation for people with disabilities particularly those
li!in$ in institutions
#pro!idin$ appropriate safe$uards for decision ma%in$ by (and for) people with
co$niti!e disabilities
#remo!in$ barriers to fair and equal treatment in the justice system and in ci!ic
participation for people with disabilities
#challen$in$ laws that deliberately or inad!ertently discriminate a$ainst people
with disabilities.
&any of these areas fall primarily within the 'onstitutional responsibility of the
(tates. This has si$nificant implications for the effecti!eness of the DDA in
ensurin$ equality before the law for people with disabilities. This chapter examines
ways of stren$thenin$ the DDA and other policy responses to ensure equality before
the law.
The Disability Discrimination Act and equality
before the law
The DDA contains few if any substanti!e pro!isions that relate directly to the
object of equality before the law. As the )uman *i$hts and Equal +pportunity
'ommission ()*E+') stated ,- the reach of the substanti!e pro!isions of the
DDA is limited compared to this object. (sub. /01 p. 19).
Early drafts of the Disability Discrimination 2ill contained specific pro!isions on
equality before the law but these were dropped before the 2ill was presented to
3arliament (section 9.4).
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This section examines the followin$ aspects of the DDA that ha!e rele!ance to
equality before the law"
#the ,equality before the law. object
#rele!ant )*E+' functions.
7ater sections co!er other aspects of the DDA.
The object
The second object of the DDA is"
- to ensure as far as practicable that persons with disabilities ha!e the same ri$hts to
equality before the law as the rest of the community - (s.1(b))
There has been little elaboration of this object. The explanatory memorandum to the
DDA states in re$ard to all the objects of the DDA"
>The objects clause? - is also desi$ned to ensure that people with disabilities ha!e as
far as possible the same ri$hts as other citi@ens. (Explanatory memorandum p. A)
8nquiry participants did not raise many concerns about this object.
Equality before the law is a fundamental human ri$ht. Australia is a si$natory to the
6B 8nternational 'o!enant on 'i!il and 3olitical *i$hts which states"
All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. (article CD)
)owe!er practical limits need to be ta%en into account in pursuin$ equality before
the law for people with disabilities.
#(ome people with disabilities are unable to ma%e reasonable decisions about their
personal circumstances or their financial and le$al affairs (section 9.1).
#The DDA includes exemptions where the ri$hts of people with disabilities are
constrained such as public health measures relatin$ to infectious diseases
Migration Act 1958 decisions and combat and peace%eepin$ ser!ices (see
chapter /C).
The 6B Declaration on the *i$hts of &entally *etarded 3ersons and the 6B
Declaration on the *i$hts of Disabled 3ersons reco$nise situations in which some
people with disabilities are unable to exercise their ri$hts in a meanin$ful way or in
which it is necessary to restrict or deny some ri$hts.
C
Functions of the Human Rights and Equal Opportunity ommission
(ection DA of the DDA confers functions on )*E+' that contribute to achie!in$
equality before the law. :irst )*E+' can underta%e research and educational
pro$rams for the purpose of promotin$ the objects of the Act (s.DA(/)(h)). )*E+'
has underta%en se!eral pieces of influential research in !arious areas of equality
before the law includin$ on the sterili@ation of $irls and youn$ women with
intellectual disability ()*E+' CEE1d).
(econd )*E+' can report to the &inister on actions that the Australian
Fo!ernment should ta%e on matters relatin$ to discrimination on the $round of
disability (s.DA(/)(j)). )*E+' does not appear to ha!e used this function to date.
Third )*E+' is empowered to examine 'ommonwealth enactments (and when
requested by the &inister proposed enactments) (that is Australian Fo!ernment
Acts of 3arliament) to determine whether they are inconsistent with the objects of
the DDA and to report to the &inister (s.DA(/)(i)). )*E+' has exercised this
function on occasion. 8n /99D<9A )*E+' commented on re$ulations restrictin$
&edicare benefits for psychiatric ser!ices (box 9./).
Box HREO in!estigation of changes to "edicare benefits for
psychiatric ser!ices
Regulations introduced in 1996 meant the Medicare rebate for psychiatric consultations
was halved after a patients 5th visit in any one year! "he Regulations were intended to
address overservicing# but there were concerns about their effect on people with high
support needs! $R%&' investigated whether the Regulations were inconsistent with or
contrary to the ob(ects of the ))*!
$R%&' considered the original restrictions on Medicare benefits for certain psychiatric
services had a discriminatory impact on people with a psychiatric disability! $owever#
the Regulations had been modified following further consultations# and $R%&'
concluded that they were no longer inconsistent with the ob(ects of the ))*! "he
restrictions that remained were comparable to those that applied to Medicare benefits
for other areas of medical treatment# rather than singling out psychiatric treatment and
psychiatric patients! $R%&'s involvement appears to have assisted in achieving these
improvements!
Source+ $R%&' ,-d# p! ,6!
)owe!er )*E+' noted that ,use of this function to date has been limited."
- principally because issues of discrimination identified to )*E+' as priorities for
action whether throu$h complaints or throu$h other means ha!e $enerally concerned
discrimination in practice rather than discrimination embedded in laws. There is some
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scope howe!er for )*E+' to $i!e increased attention to this function as and if it is
identified as a priority includin$ throu$h this inquiry. (sub. /01 pp. 14GD)
(e!eral inquiry participants raised concerns about laws with potentially
discriminatory effects (althou$h many of these were (tate or Territory rather than
federal laws) (section 9.4). +ther participants raised concerns about consistency
between the DDA and other laws (Australian Airports Association sub. C/1H
Association of 8ndependent (chools of (outh Australia sub. /14) (see chapter /C).
The 3roducti!ity 'ommission considers that this function could play an important
role in brin$in$ concerns about federal laws to the attention of the Attorney
Feneral.
There appears to be potential for the Human Rights and !ual
"pportunity #ommission to ma$e greater use of its po%er to e&amine
#ommon%ealth legislation and report to the Minister on its consistency %ith the
Disability Discrimination Act /99C'
:ourth where thou$ht to be appropriate and with the lea!e of the court )*E+'
can inter!ene in court proceedin$s that in!ol!e issues of discrimination on the
$round of disability (s.DA(/)(l)). )*E+' stated that it has had little opportunity to
use this power"
(o far opportunities to appear as amicus or inter!ene in court proceedin$s under the
DDA ha!e been limited. 8n se!eral cases where the 'ommissioner had indicated an
interest in joinin$ the proceedin$s the matter has settled before $oin$ to hearin$.
()*E+' CEE1d p. /4)
The Australian )uman *i$hts 'ommission 7e$islation 2ill CEE1 (currently before
3arliament) would require the renamed )uman *i$hts 'ommission to obtain the
lea!e of the &inister to inter!ene in court proceedin$s under the DDA or the
Human Rights and !ual "pportunity #ommission Act 198( ()*E+' Act) (or if
the president of the new commission is a :ederal 'ourt jud$e to notify the Attorney
Feneral).
8n the explanatory memorandum for the 2ill the Australian Fo!ernment ar$ued"
*equirin$ the new 'ommission to see% the Attorney Feneral.s appro!al for such an
inter!ention before the new 'ommission exercises its function to see% lea!e to
inter!ene will ensure that the inter!ention function is only exercised after the broader
interests of the community ha!e been ta%en into account. (Explanatory &emorandum
p. 9)
A number of inquiry participants expressed concern that this proposal would
undermine the new )uman *i$hts 'ommission.s independence (particularly in
situations where the Australian Fo!ernment is a party to the matter). The Australian
)uman *i$hts 'ommission 7e$islation 2ill CEE1 is outside the terms of reference
0
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for this inquiry (see chapter /). )owe!er the 3roducti!ity 'ommission notes the
concerns of inquiry participants and obser!es that independence is an important
characteristic of or$anisations such as )*E+'.
8n a related issue the Anti<Discrimination 2oard of Bew (outh ;ales (sub. /E/)
the Bew (outh ;ales +ffice of Employment and Di!ersity (sub. /AC) and ;omen
with Disabilities Australia (sub. D*1/I) su$$ested expandin$ )*E+'.s
inter!ention powers to co!er proceedin$s in!ol!in$ industrial relations issues based
on the Bew (outh ;ales model.
6nder the )*E+' Act complaints about discriminatory acts done under an award
can be made to )*E+'. 8f the president of )*E+' considers that a discriminatory
act has occurred then the complaint must be referred to the Australian 8ndustrial
*elations 'ommission (A8*') (s.0D3;).
The A8*' is required to ta%e account of the DDA (alon$ with the Racial
Discrimination Act 19)5 and the *e& Discrimination Act 198+) in performin$ its
functions (,or$place Relations Act 199( s.91). 8t is also required to ensure that a
decision or determination affectin$ an award does not contain pro!isions that
discriminate on the $round of ,physical or mental disability. (amon$ other $rounds)
and must not certify an a$reement if it thin%s that a pro!ision of the a$reement
discriminates a$ainst an employee on the $round of ,physical or mental disability.
(,or$place Relations Act 199( ss./01(/')(f) and /AE76(4)). The DDA does
pro!ide a partial exemption for capacity<based wa$es in awards and a$reements in
some circumstances (s.0A(/)(c)) (see chapter /C).
The 3roducti!ity 'ommission considers that current arran$ements dealin$ with the
interaction between )*E+' and the A8*' appear to pro!ide adequate protection in
industrial relations matters for people with disabilities. Althou$h discrimination in
employment is an issue (see chapter 4) it does not appear to deri!e from
discriminatory acts done in accordance with awards. 8f any such discriminatory acts
do arise dealin$ with them is properly the role of the A8*' which has statutory
responsibilities to ta%e account of the DDA.
#urrent pro-isions in the )uman *i$hts and Equal +pportunity Act
/9ID ./art 00#1 dealing %ith discriminatory acts done in accordance
%ith A%ards are appropriate'
Accommodation
6nder the 'ommonwealth (tate and Territory Disability A$reement ('(TDA)
accommodation ser!ices for people with disabilities are the responsibility of the
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(tates and Territories (see chapter /4). )istorically many people with disabilities
were institutionalised particularly people with intellectual disabilities and some
forms of mental illness. (ince the /9AEs emphasis has been placed on inte$ratin$
people with disabilities into the communityJan approach commonly called
de<institutionalisation. This section examines issues raised by inquiry participants
relatin$ to those people with disabilities who remain in institutions the effects of
de<institutionalisation and the potential role for disability standards for
accommodation.
#eople with disabilities in institutions
Accordin$ to the A2( (ur!ey of Disability A$ein$ and 'arers /I0 EEE people with
disabilities li!ed in ,cared accommodation. in /99I (A2( /999b p. C/).
/

3eople with disabilities li!in$ in institutional accommodation can face constraints
on their choice liberty and pri!acy and are !ulnerable to abuse or ne$lect
((tephanie &ortimer sub. /1). The +ffice of the 3ublic Ad!ocate =ictoria stated"
&any people with disabilities li!e in accommodation specifically pro!ided for them by
$o!ernment or community<based a$encies. Any disability specific support ser!ices are
sometimes also often pro!ided by the same a$encies. This means that these people with
disabilities are wholly reliant on the ser!ice pro!ider to pro!ide for them and lac% real
choices about how when or e!en if such ser!ices are pro!ided. 8n such situations many
are !ulnerable to bein$ exploited abused or ne$lected. (sub. 9/ p. 1)
8n addition se!eral inquiry participants raised concerns about the inappropriate
placement of youn$ people with disabilities in a$ed care nursin$ homes
(5ueensland 3arents for 3eople with a Disability sub. D*1C4H 6nitin$'are
Australia and 6nitin$'are B(;KA'T sub. D*110H )ume *e$ional :orumsH
)*E+' sub. /01) (see chapter /4).
As discussed in chapter /4 the 3roducti!ity 'ommission considers that there is
!ery limited scope to use the DDA complaints process to challen$e $o!ernment
decisions about access to disability ser!ices or the quality of those ser!ices
althou$h it should apply to the administration of those ser!ices.
)owe!er there appear to be wea%nesses in applyin$ the DDA e!en to the
administration of institutional accommodation. )*E+' (sub. /01 p. 1A) noted that
,the DDA has had limited impact to date on issues in institutional li!in$. for se!eral
reasons. :irst people li!in$ in institutions or their ad!ocates are often reluctant to
/ ,'ared accommodation. includes hospitals homes for the a$ed (such as nursin$ homes and a$ed
care hostels) cared components of retirement !illa$es and other ,homes. such as children.s
homes (A2( /999b p. D4).
D
ma%e complaints because they are concerned about the consequences. The
accessibility of the DDA complaints process includin$ issues of !ictimisation is
discussed in chapter /1.
(econd )*E+' stated that there are more effecti!e mechanisms than the DDA to
deal with complaints about institutional accommodation. Alternati!e mechanisms
include internal complaints mechanisms for disability ser!ices under the '(TDA.
The Bational Disability (er!ices (tandards ha!e been adopted by all jurisdictions as
the basis of quality assurance for disability ser!ices and the '(TDA requires each
jurisdiction to ensure these standards are ,upheld and monitored. (see chapter /4).
)owe!er many aspects of the '(TDA are ,aspirational. rather than mandatory and
do not ha!e associated compliance mechanisms (see chapter /4). 'omplaints can
also be made to specialist (tate and Territory bodies such as ombudsmen and public
ad!ocates (section 9.1). (erious alle$ations of abuse are more appropriately made to
the police.
8nquiry participants questioned the usefulness of these alternati!e complaint
mechanisms. Action for 'ommunity 7i!in$ stated"
+ften these internal and other mechanisms are time consumin$ and it seems to be an
underminin$ assumption that such people should be $rateful for the ser!ices they
recei!e and that people in ,institutional care. do not ha!e the need nor ri$ht to any le$al
ri$hts as such. (sub. D*11E p. 1)
The 3roducti!ity 'ommission considers that people with disabilities li!in$ in
institutional settin$s appear to face particular barriers to achie!in$ equality before
the law. The quality of institutional accommodation for people with disabilities
currently falls under the '(TDA and ar$uably lac%s sufficiently enforceable
standards. 8t could be possible to impro!e the position of people with disabilities in
institutional accommodation throu$h the de!elopment of mandatory
accommodation disability standards co!erin$ institutional accommodation. The
possible de!elopment of accommodation disability standards is
discussed below.
/eople %ith disabilities li-ing in institutional settings face particular
barriers to achie-ing e!uality before the la%' There is limited scope to apply the
Disability Discrimination Act /99C in this area'
De$institutionalisation
Frowin$ acceptance of the social model of disability (see chapter C) has led to a
stron$ emphasis on the de<institutionalisation of people with disabilities both
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internationally and across all (tates and Territories in Australia. The Equal
+pportunity 'ommission =ictoria stated"
De<institutionalisation policies which be$an in the early /9AEs coincided with and
reflected a $rowin$ focus on indi!idual human ri$hts and di$nity. The effects of these
policies which aim to enable people with disabilities to participate fully within the
community ha!e become apparent in the last ten years. (sub. /C9 p. 9)
The Australian )ousin$ and 6rban *esearch 8nstitute (A)6*8) noted ,a strate$ic
emphasis on de<institutionalisation and the restructurin$ of housin$ assistance. o!er
the past /4 years (A)6*8 CEE/a). 8n particular it noted the introduction of the
'ommonwealth (tate Disability A$reement ('(DA) (later replaced by the
'(TDA) which set out the ri$hts of people with disabilities to li!e within the
community rather than in se$re$ated settin$s. The '(DA stated"
Accommodation support should not loc% pro$rams into one or two models. 8t should
not be confined to $roup homes. 8t should be as flexible as the wide ran$e of li!in$
options in the community $enerally and the ways that could be used to support
indi!iduals in those li!in$ options for example share houses or flats co<tenancy or
li!e<in arran$ements or married li!in$ arran$ements or drop<in support models
(Department of 'ommunity (er!ices /9IA p. / in )ardwic% et al /9IA p. 1C)
8nquiry participants ar$ued that the process of de<institutionalisation has raised
se!eral ,equality before the law. issues. (ome inquiry participants ar$ued that
policies of closin$ institutions for people with disabilities are discriminatory
because they deny choice to residents and families ('ommunity and 8nstitutional
3arents. Action on 8ntellectual Disability sub. C/H Lincumber 7od$e *esident
Ad!ocacy Froup sub. CCH *obert At%ins sub. CDH 6nitin$'are Australia and
6nitin$'are B(;KA'T sub. D*110).
&any participants ar$ued that de<institutionalisation has not been adequately
supported by access to disability ser!ices. 'henoweth (CEEE) summarised many of
these concerns ar$uin$ that access to ser!ices and supports is essential for the
wellbein$ of those who ha!e been mo!ed into the community and that the failure to
pro!ide sufficient resources could place people with disabilities in a more in!idious
position than they had in their pre!ious institutional li!es.
8nquiry participants. comments show little pro$ress in this area since the /991
2urde%in *eport into de<institutionalisation of mental health care. That report found
that sa!in$s from de<institutionalisation had not been directed into community<
based care and that such ser!ices were seriously underfunded (2urde%in /991).
)owe!er )*E+' noted that the scope of the DDA is limited in this area"
8ndi!iduals (people with disabilities or parents) or or$anisations who consider that
$o!ernment policies re$ardin$ disability accommodation in!ol!e a discriminatory lac%
of choice are free to lod$e complaints under the DDA. - )owe!er - there would be
I
a number of le$al issues to address includin$ those of identifyin$ appropriate
comparators and assessin$ the applicability of the special measures defence for
measures reasonably intended to address special needs. (sub. C/9 p. 0C)
The 3roducti!ity 'ommission reco$nises that de<institutionalisation can further the
ri$hts of people with disabilities. )owe!er a policy of de<institutionalisation must
reco$nise peoples. desire for choice and self<determination. De<institutionalisation
also must be supported by access to disability ser!ices that allow people with
disabilities to li!e in the community safely and with di$nity. )owe!er as noted
abo!e the 'ommission considers that scope to use the DDA complaints process to
challen$e $o!ernment decisions about access to disability ser!ices or the quality of
those ser!ices is !ery limited (see chapter /4).
The process of de2institutionalisation needs to be supported by access to
disability ser-ices' Ho%e-er3 there are ma4or limitations on the use of
the Disability Discrimination Act /99C to challenge go-ernment decisions about
pro-ision of disability ser-ices'
Tenancy rights
+ther inquiry participants ar$ued that many people with disabilities in de<
institutionalised accommodation lac%ed tenancy ri$hts (Tony and )eather Tre$ale
sub. 1EH +ffice of the 3ublic Ad!ocate =ictoria sub. 9/H Action for 'ommunity
7i!in$ sub. D*11E). This can arise for se!eral reasons.
:irst many people with disabilities li!e in low cost pri!ate accommodation such as
boardin$ houses and cara!an par%s where there is !ery little tenancy law. They are
re$arded as licensees rather than tenants and ha!e limited security of tenure.
)owe!er this is not a disability<specific issue. All residents of such accommodation
share this problem.
(econd many people with disabilities in supported accommodation outside
institutions are also not co!ered by residential tenancy laws. The =ictorian
Residential Tenancies Act 199) for example excludes ,health or residential
ser!ices. from its co!era$e. 8n CEE/ an independent wor%in$ $roup in =ictoria
recommended extendin$ tenancy ri$hts to people in supported accommodation.
)owe!er a CEE1 =ictorian Fo!ernment re!iew of disability le$islation identified
tensions in implementin$ these recommendations includin$" the need to balance
tenancy ri$hts for people with disabilities with the need to pro!ide supportH
concerns about the safety of other residents and staffH and concerns about the ability
of some tenants to ma%e informed decisions. :or example the ri$ht to notice before
endin$ a tenancy mi$ht conflict with the need to mo!e a disrupti!e indi!idual.
Althou$h ,mainstream. tenancy law pro!ides mechanisms for brea%in$ a lease
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these mechanisms were not desi$ned with supported accommodation in mind. The
re!iew committee is currently reconsiderin$ these issues.
The 3roducti!ity 'ommission a$rees with the =ictorian Fo!ernment re!iew that the
extension of ,mainstream. tenancy ri$hts to people with disabilities in supported
accommodation could introduce tensions between the ri$hts of tenants and the
responsibilities of the ser!ice pro!ider towards that tenant staff and other residents.
)owe!er it mi$ht be possible to impro!e the position of people with disabilities in
supported accommodation throu$h the de!elopment of accommodation disability
standards that clarified how such tensions should be resol!ed.
Accommodation disability standards
The DDA pro!ides for the de!elopment of disability standards for accommodation
(s.1/(/)(c)). )owe!er there has been little pro$ress on the de!elopment of such
standards. Althou$h a number of disability pea% bodies lobbied the DDA (tandards
3roject in CEEE to be$in wor% on accommodation standards the Attorney<Feneral.s
wor%in$ $roup ar$ued that priority should be $i!en to wor% on other standards.
The DDA does not specify what areas of accommodation the disability standards
were intended to co!er. They could be limited to pri!ate rental accommodation or
could address accommodation ser!ices specifically pro!ided to people with
disabilities includin$ those li!in$ in institutions and supported accommodation.
Disability standards for private rental accommodation?
As noted abo!e many people with disabilities li!e in low cost rental
accommodation. Disability standards could pro!ide $reater clarity about the ri$hts
of people with disabilities in these forms of accommodation. )owe!er the
de!elopment of standards would raise se!eral issues.
:irst access to pri!ate rental accommodation is already addressed by the DDA
pro!isions on access to premises and $oods ser!ices and facilities. There are also
draft disability standards on access to premises. Althou$h inquiry participants such
as 2lind 'iti@ens Australia (sub. D*CD9) noted the difficulty of pro!in$
discrimination in rental decisions it is not clear how accommodation standards
would o!ercome these problems.
(econd people with disabilities are not the only residents in low cost
accommodation. 8f re$ulation is required it mi$ht be more appropriate for it to
co!er all residents. +therwise minimum standards for people with disabilities that
/E
do not apply to other residents mi$ht discoura$e landlords from rentin$ to people
with disabilities.
Third tenancy ri$hts are the responsibility of (tate and Territory $o!ernments.
Accommodation standards would thus ha!e implications for existin$ (tate and
Territory arran$ements. =ictoria (outh Australia and 5ueensland already ha!e
boardin$ house re$ulation. Bew (outh ;ales has both licensed and unlicensed
boardin$ houses and has commissioned a re!iew into the re$ulation of boardin$
houses licensed to pro!ide accommodation for people with disabilities (The Allen
'onsultin$ Froup CEE1b p. /). )owe!er national disability standards mi$ht
pro!ide uniformity in this area.
:ourth althou$h minimum standards co!erin$ areas of low cost housin$ mi$ht be
desirable their effect on affordability would need to be considered. There is already
concern that the supply of low cost accommodation is rapidly shrin%in$ because of
,$entrification. in inner city areas a decline in profitability and an increasin$ly
complex client $roup (Department of the 3remier and 'abinet (outh Australia
CEEC). The =ictorian Fo!ernment stated"
- in the area of accommodation and housin$, strict Disability (tandards in the area of
pri!ate rental may ha!e the unintended ad!erse effect of reducin$ access to affordable
housin$ and is not supported. (sub. D*1DA p. 1)
The =ictorian Fo!ernment noted that the 2uildin$ 'ommission and the Australian
2uildin$ 'odes 2oard are about to commence research on the need for accessible
forms of housin$ and options to stimulate appropriate supply. *esearch is planned
to commence on / Muly CEE0 and a draft report is planned to be a!ailable for public
comment in mid CEE4 (=ictorian Fo!ernment sub. D*1DA p. C4). The results of
this research could pro!ide the basis for the de!elopment of housin$ standards that
could be applied throu$hout Australia (rather than specifically to pri!ate
accommodation for people with disabilities).
The 3roducti!ity 'ommission considers that disability discrimination issues in
pri!ate rental accommodation are lar$ely addressed by the $eneral pro!isions of the
DDA. 8ssues about the supply and quality of low cost accommodation are better
addressed by more $eneral approaches such as the forthcomin$ 2uildin$
'ommission and Australian 2uildin$ 'odes 2oard research.
Disability standards for institutional and supported accommodation?
The 3roducti!ity 'ommission has noted abo!e the limited application of the DDA
complaints processes for institutional and supported accommodation. There appears
to be potential for accommodation disability standards to o!ercome some of these
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limitations and pro!ide $reater equality before the law for people with disabilities
li!in$ in these forms of accommodation.
As noted abo!e se!eral inquiry participants supported impro!ed tenancy ri$hts for
people with disabilities in supported accommodation. )owe!er there was mixed
support for accommodation standards for institutional accommodation with one
inquiry participant ar$uin$ that ,the standard should be that people with disabilities
should not ha!e to li!e in institutions. (Association for 'ommunity 7i!in$
sub. D*11E p. 1).
The +ffice of the 3ublic Ad!ocate =ictoria ar$ued that disability standards would
ha!e to address a !ariety of settin$s"
8f an accommodation standard were to be de!eloped then care should be ta%en to
ensure that minimum requirements are sufficient to meet the needs of all people with
disabilities who mi$ht require such a standard in a !ariety of settin$s. Any
accommodation standard needs to address both physical access and the quality of
accommodation pro!ided. (sub. D*1/E p. C)
2ut the +ffice also noted that it would be difficult for standards to address problems
of supply or access to ser!ices"
A lac% of affordable accessible lon$ term secure accommodation of A77 types for
people with disabilities in the open mar%et as well as appropriate le!els of support
means that some people are forced into supported andK institutional accommodation
that may be physically accessible but at the same time such settin$s are not homes.
(+ffice of the 3ublic Ad!ocate =ictoria sub. D*1/E p. 1)
The Disability 'ouncil of B(; ar$ued that accommodation disability standards
were unwor%able"
'ouncil belie!es that an accommodation standard as presently concei!ed is
unwor%able $i!en the broad ran$e of issues it mi$ht attempt to address - (sub. D*C9/
p. C)
The 3roducti!ity 'ommission notes the mixed support for disability standards in
this area. This inquiry does not ha!e enou$h information to recommend that
standards co!erin$ institutional and supported accommodation be de!eloped or to
determine what such standards should include. (eparate consultati!e processes are
necessary to set priorities for de!elopin$ standards and to reach consensus on their
content (see chapter /0).
/C
Decision ma%ing by and for people with cogniti!e
disabilities
(ome people ha!e a ,co$niti!e disability. which results in the person bein$ unable
to ma%e reasonable decisions about their person or circumstances or their financial
and le$al affairs. 8ncluded in this $roup are people with some forms of intellectual
disability acquired brain injury and acute mental illness.
There are practical limitations to achie!in$ equality before the law for people with
co$niti!e disabilities. :or example it is $enerally accepted that some restrictions on
the ri$hts of in!oluntary patients are justifiedH that some people with mental illness
should not be permitted to own firearmsH and that there are limits on the ability of
some people with co$niti!e disabilities to ma%e le$ally bindin$ contracts.
8n some circumstances people with co$niti!e disabilities mi$ht not be in a position
to understand or enforce their ri$hts althou$h family carers and ad!ocacy
or$anisations can sometimes act on their behalf (for example in disability
discrimination complaintsJsee chapter /1). )owe!er $i!en the ris% that other
people mi$ht ma%e decisions that are not in the best interest of a person with a
co$niti!e disability le$al rules ha!e been de!eloped to $o!ern decision ma%in$ by
and for people with co$niti!e disabilities. &any of these limitations also $i!e rise to
issues in access to justice (section 9.0).
The (tates and Territories ha!e primary responsibility for arran$ements $o!ernin$
decision ma%in$ by and for people with co$niti!e disabilities. Each (tate and
Territory has institutional and procedural arran$ements in place to co!er"
#the ri$hts of in!oluntary patients (includin$ financial ri$hts pri!acy of
correspondence and restraint and seclusion practices)
#the admission re!iew of detention and appeals a$ainst detention of in!oluntary
patients
#consent for certain treatments
#the appointment of $uardians and the pro!ision of ad!ocacy ser!ices
#financial administration particularly choice of trust funds.
The role of the +ffice of the 3ublic Ad!ocate in =ictoria in decision ma%in$ by and
for people with co$niti!e disabilities is summarised in box 9.C. All jurisdictions
ha!e similar arran$ements. The Australian Fuardianship and Administration
'ommittee pro!ides a national forum for all rele!ant (tate and Territory a$encies
associated with $uardianship and administration. 8t aims to de!elop consistency and
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uniformityH pro!ide a collaborati!e focusH encoura$e research and dialo$ueH and
ad!ise $o!ernments on rele!ant issues (AFA' nd).
Box Office of the #ublic Ad!ocate& 'ictoria
"he &ffice of the .ublic *dvocate# /ictoria is an independent statutory office#
answerable to the /ictorian .arliament! 0t represents the interests of /ictorian people
with disabilities! 0ts aim is to promote the rights and dignity of people with disabilities#
and to strengthen their position in society! 0t can investigate and spea1 out about
situations in which people are exploited# neglected or abused!
0t wor1s with the 2uardianship 3ist of the /ictorian 'ivil and *dministrative "ribunal# to
ensure the rights and opportunities of people with disabilities are protected! 0ts services
include+
4 ad!ice5information and assistance about the rights and services relevant to people
with disabilities# including+ complaints about services6 care and treatment6 information
about guardianship# refusal of medical treatment# powers of attorney and treatment
for patients who cannot consent
4 ad!ocacy5individual advocacy for people with disabilities6 strategic advocacy to
address systemic issues arising from individual advocacy wor1
4 guardians5guardianship for people with disabilities when orders are made by the
/ictorian 'ivil and *dministrative "ribunal!
"he 2uardianship 3ist of the /ictorian 'ivil and *dministrative "ribunal protects persons
aged 17 years or over who are unable# as a result of a disability# to ma1e reasonable
decisions about their person or circumstances# or their financial and legal affairs!
Sources+ &ffice of the .ublic *dvocate# /ictoria ,16 /'*" ,-!
Despite these protections a =ictorian Auditor Feneral.s report on ser!ices for
people with an intellectual disability noted that le$islation relatin$ to disability in
=ictoria has limitations in protectin$ and safe$uardin$ the ri$hts of people with a
disability who cannot ma%e informed decisions or pro!ide le$ally effecti!e consent
(D)(= CEE1 p. 44). The =ictorian Fo!ernment is currently re!iewin$ its disability
le$islation (the 0ntellectually Disabled /ersons5 *er-ices Act 198( and the
Disability *er-ices Act 19911. The discussion paper for this re!iew raised se!eral
issues associated with decision ma%in$ and consent for people with co$niti!e
disabilities in the context of de!elopin$ a future le$islati!e framewor% for disability
(D)(= CEE1).
The Bational Disability Ad!isory 'ouncil expressed concern about achie!in$
equality before the law for people with co$niti!e disabilities"
The $eneral belief is that equality before the law for people with a co$niti!e disability
is not achie!ed. 8n the body of the >draft? report an obser!ation is made that there is no
e!idence to su$$est that arran$ements for protectin$ the ri$hts of people with co$niti!e
/0
disabilities are 6inappropriate5' Be!ertheless it is difficult to su$$est that they are
appropriate $i!en the lac% of research in this area. (sub. D*14I p. 1)
8n all jurisdictions le$islati!e rules must balance competin$ claims about the best
interests of a person with a disability. &any inquiry participants raised examples of
conflict between le$al requirements and the desires of family or carers. 3articular
concern was expressed about the administration of the financial affairs of people
with co$niti!e disabilities especially the lac% of a!enues for families or carers to
challen$e the decisions of trustees and lac% of choice of trustee (Dare to Do
Australia sub. D*1EIH A(E)A 5ueensland 8nc. sub. CCCH (tephanie &ortimer
trans. p. CD94H the Fippsland 'arers Association sub. CE1H E )utson sub. /91).
)*E+' considered that (tate and Territory rules $o!ernin$ decision ma%in$ by
people with co$niti!e disabilities are not subject to the DDA"
*ules in other laws (includin$ mental health and $uardianship laws) $o!ernin$ decision
ma%in$ by or on behalf of people with impairments to decision ma%in$ capacity are not
addressed by the DDA. (sub. /01 p. 1D)
)owe!er )*E+' clarified that the presumption that certain people are not
competent to ma%e decisions for themsel!es can be unlawful under the DDA"
'onstraints on ability to ma%e decisions in other contexts for example if it is simply
assumed that a person with an intellectual disability lac%s the capacity to enter into a
transaction such as rentin$ a flat or hirin$ a !ideoJare capable of challen$e throu$h
the DDA althou$h only a small number of complaints has been made in this area to
date. (sub. /01 p. 1D)
)*E+' has underta%en limited research in the area of decision ma%in$ by and for
people with co$niti!e disabilities but stated that it has been constrained by a lac% of
resources ()*E+' CEE1d).
The 3roducti!ity 'ommission considers that there are practical limitations to
achie!in$ equality before the law for people with co$niti!e disabilities and that fair
and transparent arran$ements for $o!ernin$ decision ma%in$ by and for people with
co$niti!e disabilities are essential. This is lar$ely an area of (tate and Territory
$o!ernment responsibility and is outside the scope of this inquiry. )owe!er the
'ommission notes that comments from inquiry participants su$$est that there is
some room for impro!ement.
The DDA has a limited role in this area but there is a role for )*E+' in
researchin$ issues of national importance and pro!idin$ opportunities for the (tates
and Territories to compare approaches and learn from each other. This could be
facilitated by consultation with the Australian Fuardianship and Administration
'ouncil.
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There are practical limitations to achie-ing e!uality before the la% for
people %ith cogniti-e disabilities' Ho%e-er3 there are ma4or limitations
on the use of the Disability Discrimination Act /99C in this area'
(ustice and ci!ic participation
Equality before the law for people with disabilities extends to the ri$ht to fair and
equal treatment in the justice system and the ri$ht to participate in ci!ic acti!ities
particularly !otin$ and jury duty.
#hysical access
3eople with disabilities often face physical barriers to the justice system and ci!ic
participation such as inaccessible premises and lac% of information in accessible
formats. The DDA pro!isions that co!er access to premises and $oods ser!ices and
facilities include access to courts and pollin$ places and the pro!ision of
information. The effecti!eness of the DDA in eliminatin$ discrimination in these
broad areas of acti!ity is discussed in chapter 4. The followin$ section focuses on
particular issues relatin$ to equality before the law.
The justice system
E!idence su$$ests that people with disabilities face particular barriers to achie!in$
equal treatment in the criminal and ci!il justice systems.
The criminal justice system
The +ffice of the 3ublic Ad!ocate =ictoria noted that people with disabilities
recei!e less fa!ourable treatment in the justice system"
The e!idence stron$ly su$$ests that people with disabilities either as !ictims witnesses
or perpetrators of crime recei!e less fa!ourable treatment because of their disability.
(sub. 9/ pp. 1G0)
The +ffice of the 3ublic Ad!ocate =ictoria pro!ided e!idence that people with
intellectual disabilities are o!errepresented as !ictims of !arious forms of abuse
particularly sexual abuse and that !ictims of crime andKor witnesses with co$niti!e
incapacities are $enerally !iewed as unli%ely to be reliable witnesses (sub. 9/).
(ome commentators ha!e ar$ued that this problem is compounded by the lac% of
reco$nition of many crimes a$ainst people with disabilities. Accordin$ to )aurit@ et
/D
:8BD8BF 9.
al. (/99A p. /99) the use of euphemistic lan$ua$e dis$uises the nature of criminal
acts by some care pro!iders professionals and e!en parents. )aurit@ et al. ar$ue that
terms such as ,psycholo$ical abuse. ,threat. ,physical abuse. ,punishment
procedure. and ,a!ersi!e treatment. are used to describe what would be re$arded as
assaults in other contexts and that the terms ,abuse. or ,professional misconduct.
can be used to describe rape or sexual assault.
There is little concrete data on the number of offenders and prisoners with
disabilities (particularly co$niti!e disabilities) but e!idence su$$ests that people
with co$niti!e disabilities are o!errepresented as offenders and prisoners (box 9.1).
The 6B 8nternational 'o!enant on 'i!il and 3olitical *i$hts to which Australia is a
si$natory sets out minimum $uarantees for the determination of criminal char$es
which include the ri$hts"
# to be informed promptly and in detail in a lan$ua$e which he >or she? understands
of the nature and cause of the char$e a$ainst him >or her?
# to ha!e the free assistance of an interpreter if he >or she? cannot understand or spea%
the lan$ua$e used in court. (6B 8nternational 'o!enant on 'i!il and 3olitical
*i$hts article /0 s.1)
(e!eral inquiry participants ar$ued that people with disabilities (particularly people
with co$niti!e disabilities) are often denied these ri$hts and that those char$ed with
offences are thus more li%ely than people without a disability to be found $uilty and
to recei!e more se!ere sentences. =illamanta 7e$al (er!ice noted"
- research has shown that many people appearin$ before the courts and incarcerated in
Australia.s prisons would be dia$nosed as ha!in$ a co$niti!e impairment or borderline
disability low literacy le!els limited functional adaptability and are socially isolated.
(trans. p. /IAE)
The Disability (er!ices 'ommission ;estern Australia stated"
- people with disabilities are li%ely to recei!e more se!ere sentences and are less
li%ely to recei!e parole or conditional release - (sub. 00 p. 1)
Box #eople with cogniti!e disabilities in the criminal justice system
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* literature review by the &ffice of the .ublic *dvocate# /ictoria# found that available
evidence strongly suggests that people with cognitive disabilities face many barriers in
dealing with the criminal (ustice system!
As offenders
&ffenders with intellectual disabilities are most li1ely to commit crimes that reflect
impulsive or unpremeditated behaviour 89:; 3aw Reform 'ommission 1996b<!
.eople with intellectual disabilities are more li1ely to admit to offences# even if innocent#
due to a desire either to please an authority figure or to conceal the fact that they do not
understand the =uestions 89'&:: ,-6 .etersilia 199><!
0f apprehended# people with intellectual disabilities are more li1ely to be ignorant of# or
unwilling to exercise their rights and more li1ely to confess or plead guilty 82laser and
)eane 1999<! "hey are also more li1ely to be refused bail 89:; 3aw Reform
'ommission 1996b<!
)n correcti!e ser!ices
.risoners with an intellectual disability in *ustralia are estimated to ma1e up 1,?1- per
cent of the prison population in 9ew :outh ;ales 8$ayes ,,<# compared with a rate
of 1?- per cent in the community 80ntellectual )isability Rights :ervice and the 9ew
:outh ;ales 'ouncil for 0ntellectual )isability ,1<!
.risoners with a mental illness are estimated to ma1e up - per cent of the prison
population 89'&:: ,-<!
.eople with intellectual disabilities are more li1ely to receive a longer sentence# be
denied parole and be victimised in the prison system 8than people without such a
disability< 82laser and )eane 1999<! "hey may also receive more custodial sentences
because of a lac1 of alternative placements in the community 89'&:: ,-6 2laser
and )eane 19996 9:; 3aw Reform 'ommission 1996b<!
0nability to follow prison rules can extend the sentences of people with a cognitive
disability 82laser and )eane 1999<! @urther# a lac1 of appropriate accommodation or
other necessary supports means that parole is often delayed and occasionally denied
8/ictorian *dult .arole Board# pers! comm! nd<!
Borderline and undiagnosed offenders with cognitive disabilities do not receive support
services and are more li1ely to reAoffend 8"he @ramewor1 Report# 9:; ,1<!
&ffenders with an intellectual disability are >7 per cent more li1ely than mainstream
prisoners to return to prison! )uring 199?1997# 67 per cent of inmates identified as
having an intellectual disability were reAimprisoned within two years# compared with
-7 per cent of the total prison population 80ntellectual )isability Rights :ervice and the
9:; 'ouncil for 0ntellectual )isability ,1<!
Source+ &ffice of the .ublic *dvocate# /ictoria# pers! com!# 1, *ugust ,-!
/I
The +ffice of the 3ublic Ad!ocate =ictoria stated"
- people with co$niti!e disabilities are more li%ely to be o!er represented in the
criminal justice system as offenders - they are less li%ely to ha!e adequate le$al
representation and to ha!e their disability<specific needs addressed in prison. (sub. 9/
p. 0)
(ome commentators ha!e ar$ued that policies of de<institutionalisation in practice
ha!e become policies of ,re<institutionalisation. in prisons because there appears to
be a correlation between de<institutionalisation and the risin$ number of offenders
and prisoners with co$niti!e disability (Armstron$ CEEC). As discussed in chapter C
many disability issues in!ol!e difficult balances. De<institutionalisation and
protections a$ainst in!oluntary commitment to an institution protect the ri$hts of
people with disabilities but they can also reduce access to mental health ser!ices
and ma%e people more !ulnerable to bein$ cau$ht up in the criminal justice system.
:urther some inquiry participants ar$ued that many people with disabilities in
prisons do not ha!e access to appropriate ser!ices and face punishments for
beha!iours that are related to their disability (+ffice of the 3ublic Ad!ocate
=ictoria sub. 9/).
The 3roducti!ity 'ommission considers that e!en the limited e!idence can!assed
here on the experience of people with disabilities in the criminal justice system is of
$reat concern. As ar$ued by A'*+D ,there is no e!idence to su$$est that the
o!errepresentation of people with disabilities in the prison population reflects a
$reater tendency towards criminality than amon$ other parts of the community..
A'*+D cited e!idence $athered by the B(; 7aw *eform 'ommission that
,stron$ly indicates the influence of indirect discrimination especially amon$ those
with intellectual disabilities. (sub. 04 p. 1).
A-ailable e-idence suggests that people %ith disabilities3 particularly
people %ith cogniti-e disabilities3 are o-errepresented in the criminal
4ustice system .as -ictims of crime3 alleged offenders and in correcti-e ser-ices1'
The civil justice system
'i!il law re$ulates conduct between pri!ate indi!iduals. 8t includes both federal law
(in areas such as family law and mi$ration) and (tate and Territory law (in areas
such as property law and commercial contracts). 'i!il law includes anti<
discrimination law where it is up to indi!iduals to ta%e ci!il action to enforce their
ri$hts. As in the criminal justice system people with disabilities can face barriers in
the ci!il justice system (in both courts and tribunals).
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7ittle comprehensi!e data were a!ailable to the 3roducti!ity 'ommission in relation
to people with disabilities in the ci!il justice system other than in relation to the
DDA. The &ental )ealth 7e$al 'entre ar$ued that people with psychiatric
disabilities face discrimination in the :amily 'ourt and in child protection ser!ices
(sub. /EI). The +ffice of the 3ublic Ad!ocate =ictoria also raised concerns about
unequal treatment of parents with disabilities by child protection ser!ices (sub. 9/).
The 3roducti!ity 'ommission considers that people with disabilities in the ci!il
justice system are li%ely to face difficulties similar to those that they face in the
criminal justice system as witnesses plaintiffs (applicants) and respondents
(defendants).
Conclusion on access to justice
All citi@ens are entitled to fair treatment in the justice system. 8t is particularly
important to protect the ri$hts of those who are most !ulnerable. The administration
of many aspects of the justice system particularly criminal justice is the
responsibility of (tate and Territory $o!ernments and lie outside the scope of this
inquiry.s terms of reference. )owe!er the 3roducti!ity 'ommission considers that
there is a role for the Australian Fo!ernment in ensurin$ basic human ri$hts
e!idenced by Australia.s adoption of the 6B 'o!enant on 'i!il and 3olitical *i$hts.
The Australian Fo!ernment has demonstrated its willin$ness to pro!ide leadership
on disability issues throu$h the DDAJfor example throu$h the de!elopment of
disability standards that bind (tate and Territory $o!ernments in areas such as
public transport and access to premises. 8t should also pro!ide leadership in an area
as important as access to justice.
The Attorney Feneral should commission an inquiry into access to justice by people
with disabilities with a particular focus on practical strate$ies for protectin$ their
ri$hts in the criminal and ci!il justice systems. (uch an inquiry would require both
le$al and disability<ri$hts expertise. 8t could build on the discussion paper recently
released by the +ffice of the 3ublic Ad!ocate =ictoria (CEE0) Disability and the
#ourts. The discussion paper see%s to stimulate debate on ways of ma%in$ the court
system more responsi!e to the needs of people with a disability or mental illness
includin$ the introduction of specialist ,therapeutic courts. with expertise on
disability issues.
As ar$ued by the =illamanta 7e$al (er!ice an inquiry into equality before the law
for people with an intellectual disability would impro!e justice for all (trans.
p. /IAE).
CE
&any inquiry participants supported an inquiry into access to criminal and ci!il
justice includin$ the Bational Disability Ad!isory 'ouncil (sub. D*14I) 3eople
with Disabilities Australia (sub. D*149) Action for 'ommunity 7i!in$
(sub. D*11E) and the +ffice of the 3ublic Ad!ocate in =ictoria (sub. D*1/E). The
A'T Fo!ernment (sub. D*1DD) su$$ested that such an inquiry should extend
beyond procedural aspects to examine"
#support for witnesses and !ictims with disabilities
#the ran$e of sentencin$ options for people with disabilities
#access to information on the le$al system for people with intellectual disabilities
#physical social and economic impediments to participation in the justice system
#capacity resources and expertise of 7e$al Aid to represent people with
disabilities.
(ubject to appropriate resourcin$ )*E+' could be requested under s.DA(j) of the
DDA to conduct such an inquiry. Alternati!ely the inquiry could be conducted by
the Australian 7aw *eform 'ommission (A7*') or some other qualified body. This
inquiry could draw on wor% such as the Report into /eople %ith an 0ntellectual
Disability and the #riminal 7ustice *ystem by the B(; 7aw *eform 'ommission
(/99Db) the Access to 7ustice report by the Access to Mustice Ad!isory 'ommittee
(/990) and the Report of the 8ational 0n!uiry into the Human Rights of /eople %ith
Mental 0llness by )*E+' (/991c). 8n addition the 7aw and Mustice :oundation of
Bew (outh ;ales (CEE0) is currently examinin$ the ability of disad!anta$ed people
includin$ people with mental illness to participate in the le$al system.
This inquiry would address many issues that are particularly rele!ant to the (tates
and Territories. (tate and Territory cooperation could be facilitated by in!ol!in$ the
(tates and Territories in appointin$ associate 'ommissioners to the inquiry. The
3roducti!ity 'ommission considers that the Attorney Feneral should discuss the
alternati!e forms the inquiry could ta%e at a meetin$ of the (tandin$ 'ommittee of
Attorneys<Feneral.
The Attorney General, in consultation with State and
Territory governments, should commission an inquiry into
access to justice for people with disabilities, with a focus on practical strategies
for protecting their rights in the criminal and civil justice systems.
i!ic participation
3eople with disabilities can face many barriers to participation includin$
participation in the ci!ic life of the community (see appendix D). 'ontributin$ to
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ci!ic life helps de!elop social capital (see chapter D) and is an important means of
demonstratin$ that people with disabilities accept social responsibilities as well as
ri$hts. The Disability 'ouncil of Bew (outh ;ales ar$ued"
- people with disabilities are denied the ri$hts of citi@enship the ri$ht to equal
participation and the support to ensure these ri$hts are upheld. - ;hile they are
ostensibly equally entitled they are effecti!ely disentitled by the failure to reco$nise
differential access and forms of participation as !alid. (sub. D0 p. /1)
8nquiry participants identified two areas of ci!ic participation that ha!e particular
rele!ance to equality before the law" !otin$ and jury duty.
Voting
=otin$ is re$arded as a ci!ic duty and ri$ht of citi@enship. E!ery Australian citi@en
(/I years or o!er) is required by law to !ote. 8f an enrolled citi@en fails to !ote and
cannot pro!ide a !alid reason for not !otin$ penalties can be imposed. )*E+'
(CEE1d p. CA) noted that ,equal electoral access clearly has $reat si$nificance for
equality of citi@enship..
)owe!er some people with disabilities ar$ued that they ha!e been acti!ely
discoura$ed from !otin$ or required to !ote from their car or ha!e had to submit
postal !otes (2lind 'iti@ens Australia sub. ACH 3eter 9oun$ sub. /99H 3araple$ic
and 5uadriple$ic Association of 5ueensland sub. /1IH Disability 'ouncil of Bew
(outh ;ales sub. D0H Moe )arrison sub. 44). +thers complained about a lac% of
information (about the election how to !ote and ballot papers) in accessible forms
(Bational Disability Ad!isory 'ouncil sub. D*14IH 3eople with Disabilities
Australia sub. D*149H 2lind 'iti@ens Australia sub. D*CD9).
+ne inquiry participant $a!e an example of apparent discrimination in access to
!otin$ and described how Australian Fo!ernment and Bew (outh ;ales
Fo!ernment electoral officers adopted different approaches (box 9.0).
Box Accessible !oting
CC
Betty Moore 8sub! B,# p! ,< noted+
*t the recent :tate election# we were faced with inappropriate venue problems which had
been documented at the regional office and :ydney head=uarters for the previous two :tate
elections! "he :ydney officer still had on his file all the previous correspondence but failed to
act!
"he new regional officer again rented a first floor conference room for the preApoll voting
venue! "his building does not have a passenger lift nor any method of communication
between the ground and first floor! 0t also has 1B steps up to the front door! 0t too1 a concerted
effort of political lobbying to the 3abor .arty Member of the 3egislative 'ouncil and the letting
agent for the building to prevent use of this venue!
"he :ydney officer in charge would not change the :aturday polling venue5he stated it was
classified Cassisted disabled access! "his# despite file documentation and new information of
two other available fully accessible buildings in the central business district! $e did not
inspect the venue or provide the electoral staff to do the Cassisting!
$ats off to the @ederal %lectoral 'ommission# whose new regional officer saw fit to physically
inspect the traditional voting venues in this area# and made the decisions to change to
accessible voting venues!
Dr 'ath Funn of the 'ommunication 3roject Froup found that confidentiality of the
electoral ballot is also a concern for people with disabilities (trans. p. 9EC). &any
!oters needed assistance to complete their ballot paper because they were !isually
impaired lac%ed manual dexterity or had an intellectual or communication
impairment. This created the potential for undue influence to be exerted on their
!otin$ decisions.
Dr Funn (pers. 'omm.. C9 Au$ust CEE1) sur!eyed D19 people who recei!ed the
Disability (upport 3ension or other allowance (some of whom recei!ed help from a
care $i!er and some of whom did not) about their !otin$ experiences. Althou$h
statistical analysis of the data is still underway many responses indicated problems
particularly for people who needed assistance to fill in a ballot paper. +ne sur!ey
respondent summarised many issues"
- round here we do what they (carers) want. 8.m dependent on them for e!erythin$ so
you don.t ar$ue. 8.d li%e to choose for myselfJbut the only way that could happen was
for you to ha!e to use an official person and not someone who %new you. They.ll ne!er
do that. 8t.s too expensi!e so 8.ll ne!er $et to !ote will 8N Disenfranchised that.s meJ
and a lot of others. (Funn CEE1 pers. comm. C9 Au$ust CEE1)
+ther issues raised in Dr Funn.s research are pro!ided in box 9.4.
Box 'oting by people with disabilities
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*ccess difficulties# including getting to a polling place# discouraged some people from
enrolling or voting# for example+
2oing to vote is aw1ward! ;e used to do it in a church hall but they changed it to the school
and there are two steps into their hall! My )ad had to ta1e the ramp over# not (ust for me but a
couple of other people as well! "hey should thin1 of that sort of thing but they dont5(ust let
him do it instead!
Many people were Cadvised how to vote by someone else# for example+
0 voted the way my parents said# because my sister would have told them if 0 hadnt done it
that way!
&nly two respondents were aware that they could as1 for independent assistance# and
others thought it should be compulsory 8not optional<# for example+
@irst 0ve heard of it and whos going to as1 someone else for help when the help theyre
supposed to be getting is already standing thereD 0d really li1e it if they made it so you had to
have one of the staff to do it E it would be more private! E "hey ma1e those laws so you can
as1 for help but they dont thin1 it through5thin1 how impossible it would really be5dont
they realise that you cant as1 sometimes even when you want to because5well you (ust
cant!
Many did not even see the ballot paper after it was filled in on their behalf# for example+
0 didnt even get to see the papers to start with and he didnt show me when he finished! 8)id
you as1 himD< :ure 0 as1ed him and all he said was C)ont you trust meD so of course 0 had
to say yes and then he said# C;ell you dont need to see them do youD but 0 rec1on he didnt
do what 0 wanted because we dont thin1 the same!
Source+ 2unn ,-# pers! comm!# ,9 *ugust ,-!
)*E+' stated that despite indi!idual complaints about electoral access and a
public inquiry on electoral processes in /999<CEEE results ha!e been limited
(sub. C/9). )*E+' stated"
A number of complaints ha!e been conciliated with a$reement to impro!e electoral
access in particular locations. 8n an effort to secure broader pro$ress a public inquiry
into an indi!idual complaint re$ardin$ a ran$e of barriers to accessibility in local
$o!ernment elections was conducted in /999. This led to a$reement in CEEE by the
Australian Electoral 'ouncilJof which all electoral commissions are membersJto
establish a committee - to de!elop a standard definition for access and set
benchmar%s for its achie!ement o!er a period of years. :ormal pro$ress throu$h this
committee process has not been as effecti!e as anticipated. ()*E+' CEE1d p. CA)
(e!eral inquiry participants raised the potential for electronic !otin$ to impro!e
access for many people with disabilities. A Moint (tandin$ 'ommittee on Electoral
&atters *eport (CEE1 p. CD1) pointed out that computerised !otin$ can ,extend the
secret ballot to those with !isual impairment who otherwise require assisted !otin$
to cast their !ote..
C0
The A'T Fo!ernment noted that computerised !otin$ was used in the CEE/ A'T
election and is to be expanded for the CEE0 A'T election (sub. D*1DD p. 0). 2lind
'iti@ens Australia applauded the A'T trial and noted that"
The >A'T? Electoral 'ommission analysis of the trial concluded that the system could
be continued with only a minimal impact on the cost of electionsH in fact the
'ommission su$$ested that cost offsets could result in a reduction in the cost of an
election. (sub. D*CD9 p. I)
Electronic !otin$ is not currently an option in federal elections (or in many other
jurisdictions). 8n /999 )*E+' declined a disability discrimination complaint on
the $rounds that the #ommon%ealth lectoral Act 1918 did not $i!e the Electoral
'ommission any discretion to permit the electronic !otin$ that the complainant was
see%in$ to protect his pri!acy. The extent to which compliance with laws with
discriminatory effects can be challen$ed under the DDA is subject to some debate
(section 9.4 and see chapter /C).
)*E+' recommended consideration of le$islati!e requirements for accessible
!otin$"
The 6nited (tates has more specific le$islati!e requirements in place requirin$
accessible pollin$ places to be used unless the responsible officer certifies no such
place is a!ailable in the district. 8t may be appropriate to consider such a pro!ision for
inclusion in Electoral Acts to $i!e $reater specificity to the $eneral application of the
DDA in this area. (sub. C/9 p. 0E)
=otin$ is an essential element of Australian citi@enship. The 3roducti!ity
'ommission considers $i!en the lac% of pro$ress followin$ )*E+'.s inquiry in
/999<CEEE and the Moint (tandin$ 'ommittee report in CEE/ that it is desirable to
ta%e direct action to ensure !otin$ processes are accessible to all citi@ens eli$ible to
!ote. Accessibility in!ol!es physical access pro!ision of information in accessible
formats and an appropriate means of allowin$ people who require assistance to !ote
to do so confidentially. 3eople with disabilities should ha!e access to the same
facilities and opportunities to !ote ,on the day. as people without disabilities in
order to ha!e equal access to up to date information.
The 3roducti!ity 'ommission considers $i!en the si$nificance of !otin$ as part of
citi@enship that it is inappropriate to rely on indi!idual complaints to impro!e
access. The )*E+' inquiry and Moint (enate 'ommittee report should ha!e placed
authorities on notice that access needed to be impro!ed. The Australian Fo!ernment
should amend the #ommon%ealth lectoral Act 1918 to require accessible federal
!otin$ procedures (physically and in pro!ision of information and independent
assistance) and encoura$e (tate and Territory $o!ernments to amend their electoral
Acts if required.
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Fi!en the ran$e of disabilities for which access is required the access requirements
in the electoral Acts should be expressed in $eneral terms. There could then be
scope to de!elop disability standards to clarify the $eneral le$islati!e access
requirements. These standards would establish a national access benchmar%. ;hile
there mi$ht be some doubt about the current ability to introduce standards in this
area the 3roducti!ity 'ommission is recommendin$ that the DDA be amended to
allow the Attorney Feneral to introduce standards in any area co!ered by the Act
(see chapter /0). (tandards would also encoura$e the (tates and Territories to
impro!e access as they could apply to both federal and (tate and Territory !otin$
arran$ements.
/hysical access and pro-ision of accessible information and
independent assistance at polling places are not uniform' 9i-en the
importance of -oting3 it is inappropriate to rely on indi-idual complaints to impro-e
access'
The Commonwealth Electoral Act 1918 should be
amended to ensure that federal voting procedures are
accessible (physically and in provision of information and independent
assistance, and the Australian Government should encourage State and
Territory governments to follow suit.
Jury duty
7i%e !otin$ jury duty is re$arded as a ci!ic duty and is compulsory for lar$e
sections of the population. )owe!er a person is usually ineli$ible for jury duty if
(amon$ other reasons) they are unable to read or understand En$lish or if they
cannot dischar$e the duties of a juror because of sic%ness infirmity or disability.
The DDA has been used by people with disabilities to address issues of jurors.
physical access to courts. )*E+' pro!ided the followin$ example"
Two people with physical disabilities complained they had been discriminated a$ainst
in /990 by lac% of pro!ision of access for people who use wheelchairs to ser!e as jurors
in certain courts in (ydney and at 'offs )arbour. >)*E+'? found there had been a
refusal to pro!ide the ser!ice of assistin$ an eli$ible person to perform jury duty when
&s Druett was directed a$ainst her wishes to apply for exemption from duty. Dama$es
of O4EEE were awarded accordin$ly. ()*E+' CEE1d p. 1I)
Murisdictions are also ta%in$ steps to impro!e access. )owe!er the emphasis to date
appears to ha!e been on physical access. The +ffice of the B(; (heriff pro!ides
ad!ice on people with disabilities and jury duty. 8t states that ,the (heriff.s +ffice
will ta%e all reasonable steps to help you to participate in jury duty. but focuses on
CD
:8BD8BF 9.
*E'+&&EBDAT8+B 9.
issues such as wheelchair access and accessible par%in$ (+ffice of the (heriff Bew
(outh ;ales CEE1 p. /).
(ome inquiry participants ar$ued that people with certain types of disability are
bein$ discoura$ed from participatin$ in jury ser!ice. 2lind 'iti@ens Australia stated"
;e are also aware that frequently blind and !ision impaired people are discoura$ed
from participatin$ in jury ser!ice. 2lind 'iti@ens Australia belie!es that juries should be
sourced from the widest possible pool. (sub. AC p. /E)
This raises the difficult issue of what is required for a person with a disability to
,dischar$e the duties of a juror.. As discussed in chapter C some disability issues
in!ol!e difficult tradeoffs. 8n this instance there is a potential trade off between the
ri$hts of people with disabilities to participate in jury ser!ice and society.s desire to
ensure the fairest possible system of justice. 8t could be ar$ued that juries should be
more representati!e of the $eneral population includin$ people with disabilities.
)owe!er some people with disabilities mi$ht not be able to assess all the e!idence
or communicate with other jurors. Does a defendant ha!e a ri$ht to expect that all
members of the jury can assess e!idence in its ori$inal formN 8f so what de$ree of
disability should ma%e a potential juror ineli$ibleN
8n April CEEC the B(; 7aw *eform 'ommission be$an a re!iew into jurors with
disabilities. The on$oin$ re!iew is examinin$ whether there is a need to exclude
people from juries on the basis of serious hearin$ or !ision impairment or if these
people are bein$ unnecessarily barred from jury duty. 8t is also examinin$ ways of
supportin$ those who do want to carry out their ci!ic duty in this way. The re!iew is
considerin$ the B(; Anti2discrimination Act 19)) the DDA and the need to
maintain confidence in the administration of justice in B(;. A discussion paper
was released in April CEE0 and a final report is due in late CEE0 (B(; 7aw *eform
'ommission CEE0).
The B(; 7aw *eform 'ommission re!iew has implications for access to jury duty
for people with disabilities throu$hout Australia.
*aws with discriminatory effects
A si$nificant issue relatin$ to the DDA and equality before the law is the potential
to use the DDA to challen$e actions ta%en under laws that mi$ht ha!e a
discriminatory effect. (The DDA ma%es it unlawful to underta%e !arious ,acts.H it
does not operate to ma%e le$islation in!alid.) A related issueJthe interaction of
(tate and Territory laws and DDA disability standardsJis discussed in chapter /0.
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(e!eral inquiry participants raised examples of laws with potentially discriminatory
effects.
#The &ental )ealth 'ouncil of Australia ar$ued that the =ictorian ;ron$s and
7imitation of Actions Act (8nsurance *eform) 2ill CEE1 (now an Act)
discriminates a$ainst people with psychiatric disability because the threshold for
compensation for ,psychiatric impairment. is set at /E per cent while the
threshold for ,$eneral dama$es. (which co!ers physical impairment) is 4 per cent
(sub. /4E p. //).
#The &ental )ealth 'ouncil of Australia criticised the disproportionate effect of
'entrelin% ,breachin$ rules. on people with mental illness (sub. /4E).
#+ther inquiry participants criticised the exclusion of supported accommodation
from Residential Tenancies Act 199) protection (section 9.C).
As noted in section 9./ the ori$inal Disability Discrimination 2ill included
pro!isions that would ha!e allowed people to use the DDA to challen$e le$islation
that was discriminatory similar to pro!isions in the Racial Discrimination Act 19)5
(box 9.D). These pro!isions were dropped as a result of concerns about their
possible effect on special le$al re$imes in relation to people with disabilities
includin$ $uardianship and mental health le$islation ()*E+' sub. /01). 8t is not
clear what these concerns were or why the exemption mechanism in the DDA for
,prescribed laws. could not ha!e been used to exempt these laws from the operation
of the DDA (see chapter /C).
Box Equality before the law under the Racial Discrimination Act
CI
+ection ,- Rights to equality before the law
81< 0f# by reason of# or of a provision of# a law of the 'ommonwealth or of a :tate or
"erritory# persons of a particular race# colour or national or ethnic origin do not en(oy
a right that is en(oyed by persons of another race# colour or national or ethnic origin#
or en(oy a right to a more limited extent than persons of another race# colour or
national or ethnic origin# then# notwithstanding anything in that law# persons of the
firstAmentioned race# colour or national or ethnic origin shall# by force of this section#
en(oy that right to the same extent as persons of that other race# colour or national or
ethnic origin!
8,< * reference in subsection 81< to a right includes a reference to a right of a 1ind
referred to in *rticle 5 of the 'onvention!
8-< ;here a law contains a provision that+
8a< authoriFes property owned by an *boriginal or a "orres :trait 0slander to be
managed by another person without the consent of the *boriginal or "orres
:trait 0slander6 or
8b< prevents or restricts an *boriginal or a "orres :trait 0slander from terminating
the management by another person of property owned by the *boriginal or
"orres :trait 0slander6
not being a provision that applies to persons generally without regard to their race#
colour or national or ethnic origin# that provision shall be deemed to be a provision in
relation to which subsection 81< applies and a reference in that subsection to a right
includes a reference to a right of a person to manage property owned by the person!
Source+ Racial Discrimination Act 1975, s!1!
)owe!er e!en in the absence of substanti!e pro!isions relatin$ to equality before
the law it mi$ht be possible to use the DDA to challen$e actions ta%en under other
le$islation. The DDA expressly exempts ,anythin$ done by a person in direct
compliance with a prescribed law. (s.0A) implyin$ that compliance with a law that
is not prescribed is no defence to an action under the DDA.
The (ex Discrimination Act (which does not ha!e specific pro!isions dealin$ with
equality before the law)
C
has been used to challen$e actions ta%en under =ictorian
(tate law (box 9.A).
Box "c.ain ! 'ictoria
C The Act mentions equality before the law in its preamble but does not ha!e a specific object
co!erin$ equality before the law. 8t does not ha!e specific pro!isions allowin$ actions ta%en
under laws with discriminatory effects to be challen$ed.
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0n Guly ,# the @ederal 'ourt decision in McBain v Victoria 8,< 99 @'R 116
rendered the Infertility Treatment Act 1995 8/ictoria< inoperative to the extent that it
restricted assisted reproductive technology to married or heterosexual de facto couples!
"he case arose following a re=uest by a single woman for invitro fertilisation 80/@<
services! "he re=uest was made to a medical practitioner specialising in reproductive
technology! "he practitioner considered that the woman was suitable for the treatment#
but was precluded from providing the treatment under the /ictorian *ct! "he practitioner
applied to the @ederal 'ourt for a declaration that section 7 of the /ictorian *ct was
inoperative due to inconsistency with section ,, of the 'ommonwealth :ex
)iscrimination *ct# which outlaws discrimination on the basis of marital status! "he
:tate of /ictoria and the Minister did not concede inconsistency# but they did not offer
any arguments supporting the validity of the /ictorian legislation! "he 0nfertility
"reatment *uthority adopted a passive role! "he only active supporters of the /ictorian
legislation were the *ustralian 'atholic Bishops 'onference and the *ustralian
%piscopal 'onference of the Roman 'atholic 'hurch# which were granted leave to
intervene as amicus curiae 8friends of the court<
"he *ttorney 2eneral granted the bishops a fiat 8special leave< to apply to the $igh
'ourt! "his application was dismissed by the $igh 'ourt!
Sources+ Re McBain6 %x parte *ustralian 'atholic Bishops 'onference6 Re McBain6 !" #arte *ttor 8,,<
$'* 16 817 *pril ,,<
)owe!er se!eral inquiry participants stated that )*E+' would not accept
complaints about actions ta%en under other laws. 2lind 'iti@ens Australia stated"
>(ection 0A? appears to enable a complainant to lod$e a complaint a$ainst an action or
decision made in direct compliance with a law as lon$ as it is not a prescribed law and
the action or decision was not made within three years of the commencement of the
section. The three<year exclusion period has lon$ expired. 8t has nonetheless been
impossible for 2lind 'iti@ens Australia to date to lod$e a complaint where compliance
with a not prescribed law has been in issue. )*E+' has maintained that it is not
possible to ma%e a law the subject of a complaint and that it is not possible to use
section C9 in this context because it is not the administration of the law which is at
issue. (sub. AC p. D)
8n comments on this issue )*E+' distin$uished two situations (sub. C/9).
#;here another law creates a power to act and $i!es no discretion but to act in the
manner complained of )*E+' belie!es the DDA does not apply. That is the
DDA does not apply to discrimination in the content of laws.
#;here another law $i!es a person discretion to act and the person uses that
discretion to act in a discriminatory manner )*E+' belie!es the DDA does
apply. That is )*E+' considers that the DDA does apply to discretionary
actions under other laws.
1E
)*E+'.s reasonin$ for this distinction is not clear. (ection 0A of the DDA
explicitly states"
Durin$ the period be$innin$ at the commencement of this section and endin$ three
years after the day this section commences this 3art does not render unlawful anythin$
done by a person in direct compliance with another law.
8t therefore appears that three years after this section commenced part C of the
DDA was capable of renderin$ direct compliance with another law unlawful (unless
another more specific exemption applied). The DDA ma%es no reference to the
de$ree of discretion of the decision ma%er.
The 'ommission reco$nises howe!er that there mi$ht be practical difficulties in
brin$in$ a complaint about discriminatory acts under other laws because of the
need to fit the subject of the complaint within one of the areas of acti!ity co!ered by
the DDA. The DDA specifically co!ers the administration of 'ommonwealth laws
and pro$rams but it does not specifically co!er the administration of (tate and
Territory laws. 8t mi$ht be necessary to fit complaints about discriminatory acts
under a (tate or Territory law under another area of acti!ity such as the pro!ision of
a ser!ice.
There is uncertainty about the application of the Disability
Discrimination Act /99C to actions done in compliance %ith la%s that
ha-e not been prescribed under section +) of the Act'
larifying the ability to challenge other laws
The 3roducti!ity 'ommission considers $i!en the uncertainty surroundin$ this
issue that the scope of the DDA to challen$e actions ta%en under other laws should
be clarified. 8t is also necessary to clarify the interaction amon$ rele!ant pro!isions
of the DDA particularly the ,special measures. (s.04) and ,prescribed laws. (s.0A)
pro!isions.
Which law should have precedence?
The =ictorian Fo!ernment fa!oured $i!in$ compliance with other laws priority
o!er the DDA (as is the case under the =ictorian !ual "pportunity Act 1995)"
The =ictorian !ual "pportunity Act 1995 has a $eneral exemption from
discrimination where the conduct is necessary to comply with or is authorised by an
enactment such as another piece of le$islation re$ulations or +rders - there is no
requirement for the other law to be expressly ,prescribed.. (sub. D*1DA p. D)
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+n the other hand the A'T Fo!ernment (sub. D*1DD) and the (outh Australian
Fo!ernment (sub. D*14D) supported $i!in$ DDA priority subject to the ability to
exempt specific laws throu$h the prescription process. The (outh Australian
Fo!ernment stated"
The (outh Australian Fo!ernment supports this recommendation. )owe!er it ma%es
the exemption pro!ision and the process of addin$ (tate Acts to the exemption list
much more important than at present. Amendments to the DDA for state $o!ernments
should be simple to administer. (sub. D*14D p. 0)
The 3roducti!ity 'ommission considers that actions ta%en under another law should
be able to be challen$ed (unless another more specific exemption applies).
Fo!ernments should be held accountable to the principles they espouse and the
duties they impose on the rest of the community. ;here $o!ernments want to
ensure actions ta%en under laws are free from challen$e they should be exempted
under section 0A as the DDA allows.
+n one readin$ of the DDA it is already possible to challen$e laws with
discriminatory effects althou$h this is not clear. As noted )*E+' has been
declinin$ complaints where the alle$ed discrimination has resulted from the
application of laws that $i!e no discretion to the decision ma%er.
The 3roducti!ity 'ommission considers that the ability to use the DDA to complain
about discriminatory acts under other laws should be clarified by the introduction of
explicit pro!isions on equality before the law. These could be based on those in the
*acial Discrimination Act (box 9.D). This would help o!ercome the difficulty of
ha!in$ to fit complaints about the administration of (tate and Territory laws within
a specific subject area of the DDA by allowin$ the discriminatory pro!ision of the
law itself to be the subject of a complaint. 8n some circumstances this mi$ht allow a
complaint to be made about the discriminatory effect of a law before a specific
discriminatory action is ta%en (in the same way that proposed direct discrimination
is currently co!ered by the DDA and that the 'ommission recommends proposed
indirect discrimination be co!ered).
The Department of Employment and ;or%place *elations was concerned that such
pro!isions would create a new ri$ht to challen$e le$islation itself rather than
discriminatory actions"
Amendin$ the DDA to insert a specific ,equality before the law. pro!ision modelled on
section /E of the >*acial Discrimination Act? as su$$ested by the 3roducti!ity
'ommission would fundamentally alter the scope of the DDA. 8t would open up the
potential for a$$rie!ed persons to challen$e 'ommonwealth le$islation which is said to
ha!e a discriminatory impact or effect upon people with disabilities independently of
any actions ta%en under such laws. This would be an extremely far<reachin$ new power
and not one to be recommended li$htly. (sub. D*C99 p. CE)
1C
The 3roducti!ity 'ommission notes that the equality before the law pro!isions in
the Racial Discrimination Act 19)5 do not in!alidate challen$ed laws. *ather
where le$islation $rants a discriminatory ,ri$ht. to a particular $roup the *ace
Discrimination Act pro!isions ha!e the effect of extendin$ that ,ri$ht. to members
of the disad!anta$ed $roup. That is the law still applies but in a non<discriminatory
manner. 8t is also necessary for an a$$rie!ed person to their specific circumstances
Jthe DDA does not allow complaints to be made on a purely
in<principle basis.
The Disability Discrimination Act 1992 should apply to
actions done in compliance with laws that have not been prescribed under
section !" of the Act.
Special measures and prescribed laws
The ,special measures. pro!ision of the DDA exempts actions (acts) that are
,reasonably intended. to benefit people with disabilities (s.04). This requires a
distinction to be drawn between laws with discriminatory effects (laws that
disad!anta$e people with disabilities relati!e to people without disabilities) and
laws that establish le!els of fundin$ or eli$ibility criteria for disability ser!ices. The
DDA should allow a$$rie!ed persons to complain about laws with discriminatory
effects but existin$ limitations on complaints about the establishment fundin$ or
eli$ibility criteria for disability ser!ices should remain (see chapters /C and /4).
Acts done in compliance with ,prescribed laws. are exempted from the application
of the DDA (s.0A). 3rescribed laws are listed in the Disability Discrimination
*e$ulations /99D. The prescribin$ mechanism operates transparently clarifyin$
$o!ernments. tradeoffs between potential discrimination and other objecti!es of
$o!ernment (see chapter /C). 8f the scope to use the DDA to challen$e other laws
with discriminatory effects were clarified it mi$ht be necessary to pro!ide a
transitional period to re!iew existin$ prescribed laws and allow $o!ernments to
prescribe other laws they wish to exempt from challen$e. 8t mi$ht also be necessary
to ensure exemptions are re$ularly re!iewed so that the reasons for exemption
remain !alid (see chapter /C).
Effect of the DDA on equality before the law
As noted throu$hout this chapter there are practical limits to achie!in$ equality
before the law for people with disabilities particularly people with co$niti!e
disabilities.
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(tate and Territory $o!ernments ha!e primary responsibility in many important
areas and many of their existin$ arran$ements appear to be appropriate. )owe!er
there appears to be scope to protect the ri$hts of people with disabilities in
institutional and supported accommodation and impro!e access to justice by people
with disabilities.
There appears to be only a limited role for DDA complaints in many areas that are
important to achie!in$ equality before the law. +ne area where the complaints
mechanism could be useful is in challen$in$ potentially discriminatory acts done in
compliance with non<prescribed laws. 7ac% of clarity in this area has pre!ented
such complaints from bein$ heard. Equality before the law could be enhanced by
ma%in$ it clear that acts under non<prescribed laws are not exempt from challen$e.
The DDA $i!es )*E+' some important functions in this area. )*E+' could ma%e
$reater use of its powers to report to the &inister on $o!ernment actions that could
promote the ri$hts of people with disabilities and to examine 'ommonwealth
le$islation for consistency with the DDA. 8n addition )*E+' research in the area
of equality before the law could pro!ide a useful national focus and assist re$ulatory
benchmar%in$ by the (tates and Territories in conjunction with the AFA'.
:inally one of the most important symbols of equality before the law is the ri$ht to
!ote. The Australian Fo!ernment should amend the 'ommonwealth Electoral Act
to ensure !otin$ processes are accessible to people with disabilities and encoura$e
(tate and Territory Fo!ernments to follow suit. (ubject to the extension of the
standard ma%in$ power the Attorney Feneral in consultation with the (tates and
Territories and people with disabilities could consider de!elopin$ disability
standards for !otin$ to clarify how the access requirements of electoral Acts are to
be implemented.
10