New Regulatory Vehicles for the Enforcement of Disability Discrimination Law

The most recent Australian Bureau of Statistics (ABS) Labour force characteristics of people with a disability reveal that the rates of persons in employment with disabilities remain high. The proportion of the Australian population identified with a disability was 20% (4 million) in 2003. According to the ABS Report there is an expected increase in the prevalence of people having a disability, partly due to the aging population. Thus, the obvious need for extra collection and analysis of data in this area and a regulatory scheme that allows for enforcement of disability discrimination rights at a broader community level to prevent systemic discrimination from occurring. The rate of unemployment for persons with a disability (age 15-64) was 8.6% compared to 5% for persons without disability (2003-2008). The employment participation rate demonstrates that persons with disabilities are more likely to be unemployed than persons without disabilities. A combination of regulatory failures and social prejudices prevent persons with disabilities from being able to compete for employment on equal terms in the labour market. Legislation and case law often fail to address employers conscious or subconscious prejudice against disabled persons and rebut employers misconceived assumptions about potential employees who happen to be disabled; thus failing to ensure an equal playing field for persons with disabilities. This paper will discuss the recent amendments to Disability Discrimination Act 1992 (Cth) DD Act and the new discrimination provisions under the Fair Work Act 2009 (Cth) (FW Act). It will consider how these separate pieces of legislation may increase the rights of disabled people generally, but more particularly in the workplace. The paper's primary focus will be on the potential and capacity of the FW Act anti-discrimination provisions that enable the Fair Work Ombudsman (FWO) to exercise its powers to enforce anti-discrimination rights at work. In doing so, it will consider whether this enforcement regime will help reduce the many instances of employment disability discrimination that occur across Australia. First, this paper briefly examines the history of anti-discrimination laws in Australia and how these laws have traditionally operated. It then examines the DD Act provisions as a precursor to the FW Act illustrating their deficiencies, and how there has been an attempt to overcome these provisions by the DD Act amendments and the creation of new rights under the FW Act. The legislation will also be analysed to determine whether the changes introduced under the FW Act can deliver the outcomes to victims of disability discrimination that the enforcement regime proscribes. This includes both enforcement of rights and accompanying penalties. Finally the paper concludes that it is too early to conclude how effective the FWO's enforcement of the new avenues of redress will be for people with disabilities, although acknowledges that these new provisions show some promise for the enforcement of statutory rights, by not only the individual but also FWO