What access issues can be complained about to the AHRC?
The Australian Human Rights Commission (AHRC) administers the Disability Discrimination Act 1992 (Cth) (DDA), which is the primary piece of Australian legislation which makes disability discrimination illegal.
The DDA notes that there are two types of disability discrimination—direct and indirect. Both are unlawful:
5 Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
6 Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
It is illegal to discriminate against someone simply because they have a disability, or to unreasonably require someone to do something which someone with a disability could not do because of their disability.
If you believe that you have been discriminated against because of your disability (such as a television broadcaster not providing access services), you may be able to make a complaint to the AHRC about it. The areas in which you can be discriminated against because of your disability include those in the objects of the DDA:
3 Objects
The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
In the past, not providing a television access service has been held to be discrimination on the ground of disability in the provision of services.
Temporary Exemptions to the DDA
Under section 55 of the DDA, the AHRC is able to grant Temporary Exemptions to the DDA if doing so will lead to a reduction in disability discrimination for periods of up to five years.
This means that, if an individual (or group of individuals, or an organisation) applies for a Temporary Exemption and is granted one, they must commit to reducing discrimination (for example, increasing television access services) in exchange for being exempt from the provisions of the DDA.
If an individual or organisation (such as a television broadcaster) is covered by a Temporary Exemption, then the AHRC will not acknowledge a complaint against them. At present, the only Temporary Exemption pertaining to media is for free-to-air television captioning.
How to make a complaint
The first step in making a complaint to the AHRC is to make an enquiry, either by calling emailing, or visiting them (visit the AHRC Complaints website for details). The staff at the AHRC will then instruct you how to proceed with your complaint.
You would then lodge a formal written complaint, and proceedings would then begin. Importantly, you do not need a lawyer to make a complaint, and making a complaint is free.
The complaints process
Figure 1, below, details the process through which a complaint is assessed and dealt with. After an initial enquiry (either by phone, email, or in person), a formal complaint may be lodged with the AHRC.
The AHRC will attempt to convene a conciliation between the complainant and the respondent, or may terminate the complaint if they believe the complaint was bogus.
If nothing is resolved, the AHRC will investigate the matter and ask the respondent to reply to the complaint. After the investigation, the AHRC will either attempt to conciliate a solution to the issue, or will terminate the complaint.
At this stage, if the issue is not resolved, then the AHRC will terminate the complaint. The complainant has 60 days to take the matter to court.
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