Comparative
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This section contains a summary of the anti-disability discrimination frameworks in other jurisdictions. It aims to strengthen the understanding of global developments in order to assist with advocacy and strategic litigation efforts for strengthening protections for persons with disabilities in the greater China region.
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1. Australia
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The Disability Discrimination Act 1992 (“Act”) protects individuals across Australia from unfair treatment in many parts of public life. The Act prohibits direct and indirect discrimination on the grounds of disability and promotes equal rights, equal opportunities, and equal access for persons with disabilities. The Act covers vast areas of life, including:
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Employment
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Education
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Access to premises used by the public
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Provision of goods, services and facilities
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Accommodation and Buying land
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Activities of clubs and associations
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Sports
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Administration of Commonwealth Government laws and programs
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The definition of “disability” in the Act is broad and includes physical, intellectual, psychiatric, sensory, neurological and learning disabilities, as well as physical disfigurement, and the presence of disease-causing organisms in the body. The Act also covers existing, past, future and perceived disability. It also covers discrimination arising out of the use of disability aid or assistance and association with persons with disabilities. It also protects against harassment in employment, education and the provision of goods, services, and facilities.
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Aside from its broad catch, the Act contains two important innovations, being the creation of two regulatory mechanisms in the form of disability standards and action plans.
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In terms of disability standards, the Act provides for the development of legally binding disability standards in respect of employment, education, accommodation, and transport services by the government. There are currently three standards published (being the Premises Standards, Disability Standards for Education, and Disability Standards for Accessible Public Transport) (“Standards”). The Standards are accompanied by guidelines and advisory notes to assist persons and organizations with compliance (but are not legally binding). The Standards are accessible at the Australian Human Rights Commission website here.
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In terms of action plans, the Act provides that ”[a]service provider may prepare and implement an action plan”. (s.60) ”Service providers” include government departments, instrumentalities, and individuals who provide goods or services. The action plans are entirely voluntary and not necessarily linked to any provisions in the Act. Nonetheless, the action plans have been provided by a growing number of companies across Australia across a range of industries. The actions plans are accessible at the Australian Human Rights Commission website here.
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The Act, despite its positive aspects, also has its limitations. First, it allows for exceptions to discrimination. For example, in employment, the Act permits employers to exclude persons with disabilities if their traits prevent them from performing the job. However, the scope of this statutory exception is quite narrow. It is only limited to hiring and dismissal from employment and does not apply to all employment requirements (but only ”inherent” requirements or essential aspects of the job) (Section 21A).
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Secondly, the Act contains no general obligation on duty holders to provide reasonable accommodation or adjustments. Therefore, victims must seek relief through conciliation or litigation.
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Further information on disability rights in Australia are accessible here.
2. Canada
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There is no specific anti-disability discrimination legislation in Canada but disability rights are protected in various constitutional and legislative instruments.
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First, Section 15 of the Canadian Charter of Rights and Freedoms (“Charter”), a part of the Canadian Constitution, states that every individual in Canada – regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability – is to be considered equal. This implies that the government must not discriminate on the basis of disability. At the same time, Section 15(2) allows for affirmative actions, through law or programs, to be taken to improve the situation of disadvantaged individuals or groups.
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Secondly, the Canadian Human Rights Act of 1977 (“Act”) protects Canadians from discrimination when they are employed by or receive services from the government or private companies that are regulated by the government.
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Thirdly, legislation that protects persons with disabilities in specific areas of life were implemented. For example, the Accessible Transportation Unit issues Guidelines and Codes of Practice to guide and assist transportation providers to provide accessibility to national transportation network without undue obstacles for persons with disabilities, seniors, and other citizens with unique needs. (read here). The Employment Equity Act protects persons with disabilities in employment. The purpose of the Employment Equity Act is to achieve equality in the workplace, correct the conditions of disadvantage in employment, and most importantly, to give effect to the principle that “employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences” (Section 2). The Employment Equity Act is commendable as it extends beyond the traditional perception of equating equality with non-discrimination.
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