By Adam Fletcher

I have already written on this blog about religious exemptions to the various federal anti‑discrimination laws, but there is another exemption which gets less coverage than it deserves. Section 52 of the Disability Discrimination Act 1992 (DDA) says that the Act does not ‘affect discriminatory provisions in,’ or ‘render unlawful anything that is permitted or required to be done by,’ the Migration Act 1958.

As the DDA’s Explanatory Memorandum from 1992 puts it, this exemption clause ‘is designed to ensure that the operations of the Migration Act 1958 or the regulations made under that Act are not affected…[by the DDA].’ The Memorandum does not deign to set out the policy justification for such an exemption, which could be anything from administrative convenience to a (mistaken) belief that Australia’s international anti‑discrimination obligations do not extend to non‑citizens.

What are the practical implications of this exemption? Well, the DDA aims to eliminate discrimination against people on the ground of disability in (amongst other things) accommodation and access to premises, as well as existing federal laws and programs. The Migration Act, lest we forget, permits the indefinite detention of people in awful conditions, without any requirement to have a coherent policy for care of those with disabilities. Not only that, detention often causes physical and mental illnesses which can constitute (or result in) disabilities, and undoubtedly exacerbates existing disabilities.

The DDA also prohibits the failure to make allowances (known as ‘reasonable adjustments’) for people with a disability, and the making of requirements with which they cannot comply. Does immigration detention cater adequately for disabled detainees? No. Does it place unreasonable requirements on them? Yes.

In 2012, the ABC’s Lateline revealed that two wheelchair-bound girls with cerebral palsy, aged 9 and 15, were being detained in inappropriate facilities in Darwin, and (incredibly) were facing a transfer to Nauru or Manus Island. Just last month, a Four Corners interview with a doctor who worked on Manus Island revealed that a young boy with anaphylaxis and an anaemic girl with a history of needing blood transfusions had been transferred there despite the lack of basic medical facilities and the ever-present threat of diseases such as malaria (which can in themselves constitute disabilities).

Others who have worked in detention centres have given damning evidence to parliamentary committees about the ongoing inadequacy of medical and mental health support services generally. As a cohort, immigration detainees are clearly prime candidates for the protection of the DDA, which makes their exclusion all the more reprehensible.

At this point a rejoinder might be that if asylum seekers receive less favourable treatment (which is the essence of discrimination), it is due to their ‘illegal’ arrival (which is patently nothing of the sort), rather than because of any disabilities they may have. However, it is not just asylum seekers who may be affected by the section 52 exemption. Government policy is to screen visa applicants for pre-existing medical conditions. According to the Department of Immigration and Citizenship, this is a process in which “[t]he main factor to be taken into account is the cost of the condition to the Australian community of health care and community services.” A 2010 parliamentary inquiry into Australia’s treatment of immigrants with disabilities found that immigration health assessments are outmoded. The rules effectively discriminate against disabled applicants, even when they are no more likely than others to present a burden to society. The inquiry recommended not only a comprehensive revision of immigration health requirements, but also a review of the section 52 DDA exemption.

Not so long ago, there were also cases of Australians who were locked up in immigration detention or even deported due to their disabilities. The lamentable stories of Cornelia Rau and Vivian Alvarez Solon came about because they were unable to articulate their identities to the government’s satisfaction, and were powerless to demand their rights. Subsequent investigations by the Commonwealth Ombudsman revealed that more than 200 people had been wrongfully detained in Australian immigration detention centres, of whom 13 were people with a disability. The investigations uncovered systemic problems with immigration processes which, without the exemption, may well have led to action under the DDA. In 2009 two WA academics published a paper referring to these cases which noted the Migration Act’s ‘extraordinary powers’ to deprive people of their liberty have been used ‘too readily’ to lock up all sorts of people who are ‘not like us.’

The Government actually revised the exemption in 2009. Originally, section 52 said the DDA did not “render unlawful anything done by a person in relation to the administration of [the Migration Act or associated] regulations.” The Productivity Commission found in a 2004 review of the DDA that “administrative convenience should not override the rights of people with disabilities. Exemptions should be socially and economically justifiable and should continue to focus on areas of activity and not on particular groups of people with disabilities.” In response, the Government said it would narrow the Migration Act exemption by “clarif[ying] that incidental administrative processes are not exempted from…the Disability Discrimination Act.” Whether the new wording “anything that is permitted or required to be done” really narrows the scope of the exemption is debatable (there seems to have been only one case from 1997 dealing with section 52 so we do not yet know what the courts think of the revision). Incidentally, a similar provision in the Age Discrimination Act 2004 retains the broader wording.

A significant development prior to the 2009 amendments was Australia’s ratification of the Convention on the Rights of Persons with Disabilities in July 2008. The Convention requires States parties to “prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds,” with no exceptions. It also specifically refers to “immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement.” It is well established that Australia owes human rights obligations not just to citizens, but to “all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained….”

With this in mind, retention of section 52 in 2009 was clearly unjustified. Instead of going through the Migration Act to ensure it complied with the Convention, the government decided it would maintain an exemption clause which explicitly acknowledges the Act’s “discriminatory provisions,” yet says they are unaffected by disability discrimination laws.

Why was the section 52 exemption created in the first place? On the face of it, section 47, which says the DDA does not apply to “anything done by a person in direct compliance” with another law or court order, ought to be sufficient to protect immigration officials (and possibly contractors) from disability discrimination claims. However, the courts have suggested that this provision is to be interpreted narrowly. The only other relevant blanket exemptions are for charities (religious or otherwise) and the armed forces – both areas in which there has been significant controversy over discrimination. Would the government enact provisions just to head off potentially awkward litigation? History (and not just recent history) suggests so.

The nation’s most senior anti-discrimination authority, the President of the Australian Human Rights Commission, reminded us just last month (after she was barred from visiting Manus Island) that our treatment of asylum seekers breaches any number of Australia’s international obligations. The 2010 parliamentary inquiry into immigration health requirements also heard from witnesses describing significant inconsistencies with international law. It is inexcusable for Australia to implement its obligations so selectively – no exemption from anti‑discrimination laws should be automatic or unreviewable, as section 52 of the DDA is.

No one who saw the Four Corners report on our offshore processing centres could be in any doubt that these camps on Nauru and Manus Island are disturbing legal black holes. More than a decade after the Howard Government’s discredited ‘Pacific Solution,’ they are again causing untold further damage to those who have already suffered. Their very existence is irreconcilable with the aims of our anti‑discrimination legislation which the government proudly claims as the flagship of our system of human rights protection.

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