Removing Barriers to Substantive Equality: A Case Study of Remedying Disability Discrimination Complaints

Abstract

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 individualized 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. British law takes quite a different approach. The article considers three mechanisms used in Britain 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 organizations 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.

Keywords: disability, discrimination, reasonable adjustments, remedies, equality, ADR, conciliation