Removing barriers to substantive equality : a case study of remedying disability discrimination complaints

Disability discrimination complaints are primarily resolved in the privacy of a conciliation conference. Few complaints reach the courts, so there is very little available information about the outcomes negotiated by the parties or how this type of discrimination is being addressed. Drawing on settlement agreements and decided cases from Queensland, this article examines how disability discrimination across a range of areas is remedied prior to hearing and by the tribunal. The data suggests that complaints are predominantly remedied in an individualised way, mainly with compensation. Although the parties negotiate wider, systemic outcomes on occasion — such as building modifications or better access to premises — courts rarely award remedies of this nature. The law in the United Kingdom takes quite a different approach. This article considers three mechanisms used in the United Kingdom which could be adopted in Australia to strengthen the law’s effectiveness for people with a disability: investing a public agency with enforcement powers; requiring organisations to make reasonable adjustments for people with a disability; and placing a positive duty on public authorities to promote equality for people with a disability.

Against settlement? Owen Fiss, ADR and Australian discrimination law

In his celebrated article, Against Settlement, Owen Fiss objected to settlement for, among other things, securing the peace while not necessarily delivering justice and denying the court the opportunity to interpret the law. Fiss sees settlement as a technique for streamlining court dockets, the civil equivalent of plea bargaining. This paper explores Fiss’s criticisms through the lens of resolving discrimination complaints in Australia. It argues that although it is valuable to offer complainants a system for resolving complaints quickly and informally, especially in a jurisdiction in which complainants are often from marginalised groups, it is also necessary to recognise that this system is limited in how effectively it can develop the law and, by extension, eradicate discrimination. In essence, the system’s operation epitomises Fiss’ opposition to settlement. Modifying the complaint resolution system would improve this situation. The paper concludes by proposing three reforms based on mechanisms used in comparable countries: introducing direct access to the court or tribunal; strengthening ADR by making it voluntary and incorporating a ‘rights-based’ approach; and encouraging the regular publication of specific information about settlements and significant cases.

Strategic enforcement of anti-discrimination law : a new role for Australia's equality commissions

In Australia, anti-discrimination law is enforced by individuals who lodge a discrimination complaint at a statutory equality commission. The equality commission is responsible for handling complaints and attempting to resolve them. In most instances, the equality commission cannot advise or assist the complainant; it must remain neutral. In other countries, the equality commission plays a role in enforcement, principally by providing complainants with assistance to resolve their complaint including funding litigation. The equality commission’s assistance function has been most effective when used strategically as part of a broader enforcement program, rather than on an ad hoc basis. This article discusses equality commission enforcement in the United States of America, Britain, Northern Ireland and Ireland and shows how the equality commissions have engaged in strategic enforcement in order to develop the law and secure remedies which benefit the wider community, not only the individual complainant. Based on their experience, it is argued that the Australian equality commissions should play a role in enforcement so that they can tackle discrimination more effectively.

Australian anti-discrimination law

This is the first major Australian anti-discrimination law text book which contains a comprehensive and critical examination of the major statutes and cases in all jurisdictions.

Wielding the big stick – Lessons for enforcing anti-discrimination law from the Fair Work Ombudsman

Anti-discrimination law is enforced by a person who has experienced discrimination by lodging a complaint at a statutory equal opportunity agency. The agency is responsible for receiving and resolving discrimination complaints and educating the community; it does not play a role in enforcing the law. The agency relies on ‘carrots’ to encourage voluntary compliance, but it does not wield any ‘sticks’. This is not the case in other areas of law, such as industrial relations, where the Fair Work Ombudsman is charged with enforcing the law — including the prohibition of discrimination in the workplace — and possesses the necessary powers to do so. British academics Hepple, Coussey and Choudhury developed an enforcement pyramid for equal opportunity. This article shows that the model used by the Fair Work Ombudsman reflects what Hepple, Coussey and Choudhury propose, while anti-discrimination law enforcement would be represented as a flat, rectangular structure. The article considers the Fair Work Ombudsman’s discrimination enforcement work to date and identifies some lessons that anti-discrimination law enforcement can learn from its experience.

Allegations of unlawful discrimination in education: parents taking their fight for Auslan to the courts

This paper examines the use of the Disability Discrimination Act (Commonwealth of Australia, 1992) by parents seeking access for their deaf children to native sign language in the classroom. It reviews a number of cases in which Australian parents have claimed indirect discrimination by educational authorities over their children's lack of access to instruction through Australian Sign Language (Auslan) and discusses the outcomes of such litigation. The policies endorsed by deafness organizations are contrasted with those of state educational authorities. The author discusses the limitations of a complaints-based system to address systemic discrimination and suggests the need for legislation to protect the linguistic rights of deaf children.

Educational enrolment of students with a disability in New South Wales and Victoria

The extent to which legislation and special education policy have impacted on the nature of the educational enrolment of students with a disability in Australia has not been clearly addressed. Although there are no detailed and systematic national data on the enrolment of students with a disability in inclusive settings, special classes and special schools in Australia, some broad trends are apparent. The legislative background to these trends is discussed. As might be expected, there are variations in the nature of the educational enrolment of students with a disability across the states and territories of Australia. Enrolment trends in the two most populous states, New South Wales and Victoria, are examined and discussed within the context of their respective special education policies, disability discrimination legislation, and educational precedent.

Beyond compliance: ACE and the disability standards for education in 2005.

The Disability Standards for Education 2005 make it unlawful for an education authority to discriminate against a person on the grounds of the person's disability, and providers of adult and community education (ACE) are specifically noted as education authorities in the Standards. Most ACE providers, working as they do from a community development basis, would consider themselves to be non-discriminatory. The devil, nevertheless, is in the detail, and it is one particular detail of the Standards that this article considers – Part 7: Standards for student support services. Research has indicated that this is an area with which ACE providers are likely to have problems. This article looks firstly at the place of people with a disability in ACE, and then at some of the provisions of the Standards as they relate to student support. Evidence to support the discussion is taken from three research projects into ACE provision for people with a disability. These studies are outlined before the author moves on to some of the issues indicated in the research. Further, some suggestions are made for compliance, and the need for ACE providers to go beyond compliance and consider advocacy to support the inclusion of people with a disability into ACE.

Double disability : lived experience of Australian tertiary students with ME/CFS

This research is the exploration of the lived experience of tertiary students in Australia with the medical condition usually known as ME/CFS (Myalgic Encephalomyelitis /Chronic Fatigue Syndrome) seeking to explore issues of equity and human rights from the perspective of the Disability Discrimination Act 1992. Students feel that their difficulties are not caused just by the illness itself but by the failure of the tertiary institutions to understand the effects of this illness on them, the student, especially within the areas of accommodations and assessments. Their lived experiences are studied to ascertain if their experiences differ from those of other tertiary students. Forty participants came from every state and territory of Australia and twenty -four of Australia's universities as well as eight Technical and Further Education/Open Training Education Network (TAFE/OTEN) colleges are represented. The selection of the chosen methodology, Critical Ethnography from a Habermasian perspective, has been circumscribed by the medical condition which placed limitations on methodology and also data gathering methods. Non-structured stories, in which the participants wrote of their lived experience as students, were considered the most appropriate source of data. These were transmitted by electronic mail (with some by postal mail) to the researcher. A short questionnaire provided a participant background to the stories and was also collated for a composite overview of the participants. The stories are analysed in a number of ways: six selected stories are retold and the issues arising from these stories have been weighed against the remainder of the stories. Four intertwined themes were constructed from the issues raised in each story. Apparent infringements of the Disability Discrimination Act (1992) which impact on quality of life, human rights and equity are found. No accommodations are being made by the academic institutions for the cognitive dysfunctions and learning difficulties. Students are stigmatised and lack credibility to negotiate appropriate academic accommodations. A possible means of improving the ability of students to negotiate appropriate accommodations is explored. Finally the researcher reflects on her own involvement in the research as an 'insider' researcher.

Unfair punishment : when criminal record checks lead to discrimination

Applying for a job is stressful enough, but if you have a criminal record, even if it’s not relevant to the job you’re applying for, it can be a nightmare.

Employers in Australia regularly discriminate on the grounds that a person has an irrelevant criminal record and checking criminal records is on the increase. The number of criminal record checks undertaken in Victoria have risen by almost 6,000% since 1993.

It is concerning then that the few laws that prohibit discrimination on the basis of irrelevant criminal record lack real teeth.

In defence of settlement: resolving discrimination complaints by agreement

Alternative dispute resolution (ADR) has become an entrenched feature of Australia’s anti-discrimination law, so much so that the vast majority of discrimination complaints are settled. There are many reasons to be against settlement but with reference to a study of the outcomes negotiated in discrimination complaints settled in Queensland, this article shows that there are valid reasons to be in favour of settlement, particularly when it results in systemic remedies which would not be obtained otherwise. The article concludes by presenting modifications to the existing complaint resolution system which would retain ADR while ensuring that the wider, systemic aspects of a discrimination claim are also addressed by introducing an institution with the power to enforce the law.

Fairness and freedom : the final report of the equalities review and starting the dialogue about addressing inequality in Australia

Anti-discrimination law in Britain has been in a state of flux for the last decade. The structure of the law, its enforcement and coverage are under review and due to this activity, there has been much discussion about how best to address disadvantage and promote equality. Fairness and Freedom: The Final Report of the Equalities Review1 is one voice in that discussion.The Report is an examination of the causes of disadvantage and persistent inequality in Britain, including recommendations for addressing inequality which move beyond traditional legal approaches. The first section of this note outlines the context in which the Report was commissioned and the second section sets out the contents of the Report, including key findings and recommendations, particularly in regard to anti-discrimination law. The final section briefly discusses the relevance of this project for Australia. The limitations British anti-discrimination law has faced in attempting to eliminate systemic discrimination and inequality are similar to the problems we have experienced. It is timely to consider the proposals contained in the Report and to begin the dialogue about the future of anti-discrimination law in Australia, particularly how it could be amended to effectively address disadvantage and promote equality.

Health-inclusive higher education : listening to students with disabilities or chronic illnesses

This paper reports on a small-scale project undertaken with tertiary students who identified as having an impairment either at enrolment or by registering with the university's Disability Support Unit (DSU). The aim of the study was to explore with these students ways in which the university was currently meeting their academic support needs and the ways in which these needs might be better met. Consistent with the definition of disability within the Australian Disability Discrimination Act, it became apparent that a significant number of students who identified with that definition, or sought help from disability services, also presented with needs arising from chronic illness. The majority of participants cited an emotional or psychological illness, rather than a physical, intellectual or sensory one, as a possible precursor to difficulties in engagement with the university. We conclude by considering whether commonly used institutional categories are apposite to an understanding of the ways in which students perceive themselves and, importantly, their engagement with the university and success within it.

Twisting the knife: discrimination in the law

Of the many different variations that can occur in human sexual formation, transsexualism no doubt remains the least understood by the wider Australian community. As a consequence, the process of attaining human rights to legal status, privacy, dignity and freedom from discrimination for those who experience this unusual condition has been a slow and sometimes frustrating one. The article seeks to introduce the reader to some of the more recent developments in the international jurisprudence of transsexualism and the underlying medical evidence that has supported them. It also offers criticism of the belated attempt by the State of Victoria,  with the Births, Deaths & Marriages Registration (Amendment) Act 2004, to establish certain statutory rights in this regard. While the legislation was enacted with the stated and very laudable purpose of providing for the  correction of birth records on the Register of Births of those people with transsexualism who have altered their phenotypic sex by hormonal  medication and surgery, the article argues it has also served to remove other equally important rights already won and proposes that a final remedy will only be found, as on previous occasions, in the courts.

Discrimination as the touchstone of persecution in refugee law

The touchstone of refugee law is the concept of persecution. The concept is poorly defined. The courts have suggested that it includes several elements, including discrimination, systematic conduct, motivation and causation. In the context of distinguishing between prosecution and persecution, other criteria that have been employed include the notion of a law of general application’ and the legitimate and appropriate and adapted test. These concepts are often overlapping and some are superfluous. This paper proposes a new test for persecution. The best way forward to unify and inject coherency, consistency and certainty into this area of the law is to make discrimination the sole criterion of persecution. The (exhaustive) test for persecution that is proposed is as follows:  1. Does the law on its face impose an additional burden for a Convention reason? 2. If the answer is no, it is necessary to examine if the practical effect of the law is to impose an additional burden on people for a Convention reason either because the law selectively targets people for a Convention ground or disproportionately applies against people for a Convention ground? 3. If the answer to both questions is ‘no’, the law does not constitute persecution. 4. If the answer to question 1 or 2 is ‘yes’, then the law will constitute persecution unless there is a relevant basis for causing serious harm to people for a Convention reason.