30 years of the Anti-Discrimination Act

Disability discrimination and the ADA

Principal Solicitor of the NSW Disability Discrimination Legal Centre (DDLC) Joanna Shulman spoke at the 30th anniversary forum on the history and future of the NSW Anti-Discrimination Act held on 30 October 2007.

Growth of disability discrimination law
Volunteers with Disability
Disability Vilification
Exemption in relation to drug addiction
Looking to the future
Conclusion

The views expressed in this article are those of the writer and not necessarily those of the President, Board members or staff of the ADB

DDLC is a small community legal centre which specialises in providing services in discrimination law, advice and referral to people with disabilities in NSW.

When discussing the development of disability discrimination law, it is tempting to search for a startling case, which had a widespread effect on a large number of people with disabilities and thus illustrates the invaluable nature of the Anti-Discrimination Act 1977 (ADA).

Alas, such a search will almost invariably be in vain. After fruitless searching one realises why; the ADA is a piece of legislation which often results in what the outsider would classify as ‘small differences’ to the lives of the marginalised, but which in fact result in a significantly improved quality of life for these people.

Recently DDLC assisted a woman who because of arthritis and her age could not open the heavy toilet doors at her local Westfield, and had stopped doing the grocery shopping because of it. We provided advice to a man who had been sent for psychological testing by his employer because his employer had heard ‘on the grapevine’ that he suffered from depression. We filed a complaint for the parent of a child with autism seeking to negotiate with his local school around a plan for his future education that would aim to maximise his participation in the class room.

None of these cases will ever become ‘that case’ but they will end up making significant differences to these peoples lives, and provide illustration of the reason why the ADA is to be applauded as a piece of legislation.

It was not until the Act’s fourth birthday in 1981 that the ADA was amended to include physical disability as a ground of complaint. Intellectual impairment followed shortly after in 1982. For 12 years disability discrimination was dealt with under these two separate heads of physical impairment and intellectual impairment. However, there were definitional problems in this version of the Act. These problems arose because physical and intellectual impairment were defined as ‘defects or disturbances in the structure and functioning’ of the body or the brain. To come within the definition, people had to prove they had a ‘defect’ which limited them substantially in an area of their life.

In 1994, ground-breaking amendments were made to the ADA, (enacted by the Anti-Discrimination (Amendment) Act 1994 (NSW)) which included the addition of age discrimination and the extension of race definition and marital status protection. It also represented a true ‘coming of age’ for disability discrimination law as the definition of disability was expanded to mirror the definition contained in the Disability Discrimination Act 1992 (Cth).

These amendments also paved the way for a ‘representative body’ to lodge complaints on behalf of a person or group of people.

Ten years after these amendments the accessibility of the ADA for people with disabilities was increased further. In October 2004, a number of changes which were largely based on the comprehensive 1999 NSW Law Reform Commission’s Review of the Act were introduced. These changes were:

• An extension of the limitation period for lodging a complaint from 6 to 12 months;

• A flexible means to make and lodge a complaint, and;

• Most importantly, the definition of discrimination on the ground of disability was expanded to include discrimination on the basis of characteristics of disability – such as being palliative, using therapeutic devices which aim to alleviate the effect of a disability and using interpreters.

The scope of achievements of what is now the ADA is borne out by empirical data.

The Anti Discrimination Board in the past decade has handled over 2,500 formal complaints of disability discrimination, as well as many more enquiries that do not lead to formal complaints. Disability discrimination complaints now represent one in five of all complaints lodged with the Board. In 2001–02 the Board received 332 disability complaints, making up 20.4% of all complaints lodged. The opportunity to pursue complaints with the Board has allowed people with disabilities to assert their fundamental right to non-discrimination and achieve positive results for themselves and others. The ADB should be congratulated on this achievement.

Despite the scope of these accomplishments, it should be noted that there are some other reasons why the search for “that case” will almost always prove fruitless.

This is because there are gaps and some structural issues within the Act which need to be addressed.

Volunteers with Disability

Many people with disability who are unable to work but want to make a valuable contribution to society, choose to do volunteer work. However, if they do so and are harassed and discriminated against because of their disability, they are left unprotected under the ADA.

For example, DDLC was recently contacted by a mother who was concerned that her son who has a mental illness and was a volunteer at a local coffee shop, was told, after word circulated that he had in the past been a drug user, that he could not return to work until he had a negative Hepatitis C test. This man was left without any protection under discrimination law, and has now given up volunteer work.

Disability Vilification

With the passage of the Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW), New South Wales became the first Australian jurisdiction to pass legislation which makes vilification on the ground of race illegal. The ADA has since been amended to prohibit homosexual vilification, HIV/AIDS vilification and transgender vilification, all of which have been modelled on the original racial vilification provisions. Homosexual vilification was added in 1993 by the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 (NSW) Sch 1; HIV/AIDS vilification was added in 1994 by the Anti-Discrimination (Amendment) Act 1994 (NSW) Sch 2; and transgender vilification was added in 1996 by the Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 (NSW) Sch 1.

, NSWLRC Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW). http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r92chp7

However, there remains no legislative protection against vilification of people with disability.

Another area in which work remains to be done is in relation to the interpretative problems and erosion of protection for people with disabilities created by certain exemptions in the Act. One such exemption arose in 2002 when the Act was amended to state that discrimination in employment on the grounds of disability is not unlawful if the disability relates to the person’s addiction to a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act 1985) and the person is actually addicted to a prohibited drug at the time of the discrimination. Anti-Discrimination Act 1977 (NSW), s49PA(2)

Methadone and buprenophine are excluded from the definition of prohibited drug.

The amendments are described in the 2nd reading Speech of the Anti-Discrimination Amendment (Drug Addiction) Bill to Legislative Council as supplementing the existing provisions in the Act which provide protection for the legitimate needs of employers, and ensuring that our disability discrimination laws are not used in an unintended manner.

The inclusion of this provision in the ADA creates more problems than it solves.

Firstly, on top of the already existing protection for employers such as the exemptions relating to the inherent requirements of a job Anti-Discrimination Act 1977 (NSW) s49D(4)(a)

and unjustifiable hardship, Anti-Discrimination Act 1977 (NSW) s49D(4)(b)

as well as occupational health and safety legislation, the exemption relating to drug dependency cannot be justified as necessary.

Furthermore, this exemption promotes unhelpful stereotypes regarding addiction to prohibited drugs, setting up a polarization between ‘self inflicted’ injury versus people who are ‘genuinely disabled’. Hendy P (Chief Executive, Australian Chamber of Commerce and Industry) 2003, Employers welcome planned drug disability change, media release, Australian Chamber of Commerce and Industry.

Yet only illicit drugs are covered by the exemption, promoting the stereotype that addiction to illicit drugs is somehow a ‘self-inflicted’ illness. The Network of Alcohol & Other Drug Agencies, Submission to: Senate Legal and Constitutional Legislation Committee, Disability Discrimination Amendment Bill 2003, http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/disability/submissions/sub4.doc

The inclusion of this exemption permits discrimination on the basis of drug dependency in anti-discrimination law. Additionally, this has the potential to make illicit drug users reluctant to seek treatment, because of concerns that their employer could find out about the fact that they are drug user which may lead to discrimination.

Another obvious need to be addressed is that of the depleted resources of the ADB. It is no secret that since the cuts to funding, the ADB has engaged in very little inquiry work and so many systemic discrimination issues are left untouched.

Conclusion

We are hopeful that at the 60th birthday of the ADB, DDLC can stand up and congratulate the ADB on changes to the above areas. Hopefully, DDLC will able to continue to point to how anti-discrimination law has led to little victories for people with disability. It would be great if we were able to point to some larger victories also.

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