Address to Blind Citizens Australia Convention 1999
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Graeme Innes AM |
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Contents
- Introduction
- Changes within the Commission
- Legislative changes
- Access to Commission information and processes
- Standards
- Other compliance mechanisms
- Major current issues - e-commerce reference
- Concluding remarks
1. Introduction
I want to tell you a story- it's a true story, and many of you probably already know it.
Bruce Maguire, a man from Sydney who is blind, wanted the chance to apply for tickets to the Olympic Games. He asked SOCOG for the ticket book in Braille and was refused, even though all other Australians had access to the same book in print.
He applied for an interim determination (similar to an injunction) seeking to have the book produced for him in Braille, and-or to stop the ballot process going ahead until this occurred. The interim determination was granted, but because the Commission's decisions are not enforceable SOCOG simply ignored it.
Bruce continued with the complaint- with the support of BCA's advocate. A full hearing of the matter took place some 10 days ago, and Commissioner Carter found in Bruce's favour. He directed that Bruce be included in the second round of ticket purchases, even though he had not been included in the first, and that the ticket book be provided in Braille for that round.
To their credit, SOCOG have stated that they will comply with these directions. However, it should be noted that as this is a first-in first-served ticket purchase, and the Braille ticket book is not yet available, those of us who read in Braille rather than in print are again disadvantaged.
Bill Jolley tells me that the major theme for this conference is "Achieving through unity and partnerships" and that another focus is on changing what it means to be blind, through fighting discrimination, individually and systemically.
I hope you will find that what I have to say connects very strongly with those themes.
- I think we have some very solid achievements to point to which the Commission has contributed to through the Disability Discrimination Act, in particular access to public transport and telecommunications and changes to building access requirements, and some instances in education and employment. These achievements I think more than stand comparison with what has been achieved with other discrimination and human rights legislation in Australia, in relation to disability or more generally. But it is very clear that we need to keep a clear and constant focus on achieving more.
- A greater emphasis on partnerships is part of the strategy we are working on at the moment for increasing achievement of the objectives of the D.D.A.
- We are experimenting under the D.D.A. with approaches to complaints which we think offer increased effectiveness in dealing with some systemic discrimination issues.
- And I want to talk about work the Commission is doing of particular relevance to blind people through the reference the Attorney-General has given us on access to electronic commerce and new communications and service technologies.
2: Changes within the Commission
First, though, I should say something about some recent changes in the Commission and why I am standing here talking about the Commission as "we".
2.1 Deputy Commissioner role
The Commission decided last month to create a contract position for me as Deputy Disability Discrimination Commissioner, with particular responsibilities to
- assist with conduct of public inquiries on selected disability discrimination matters,
- advise on measures to promote compliance with the D.D.A., and
- assist with the conduct of the E-commerce reference.
Although I am very new to this role, some of you would be aware that I have a long history with the D.D.A., in its development in 1991 and 1992, and in its administration for a number of years as inquiry commissioner, as well as my history in disability issues with disability community organisations, government advisory and complaint handling bodies, and work for industry in developing disability access and equity strategies.
I know that the Commission and many other organisations have been concerned for some time by the need for more dedicated high level resources for disability discrimination issues. This appointment is a response to that need.
There is a neat symmetry in the fact that the savings in the Commission's disability budget which have allowed this appointment have come mainly through the emphasis which disability policy staff have put on electronic publication, with reduced costs in printing and distribution of ink on paper and other alternative formats. One of the things I want to do is ensure that both the Commission and other organisations do everything we need to ensure that we use digital technologies effectively to expand access for blind people and for other people with disabilities to the Commission's information and processes.
I do think though that a lot of work has already been done towards this, and in particular that more people need to be aware of the range of resources available on the disability rights section of the Commission's web site.
2.2 Susan Halliday appointment
My appointment as Deputy Commissioner comes at the same time as Susan Halliday takes over duties as Acting Disability Discrimination Commissioner. I think we should all thank her for agreeing to take on the role in addition to her duties as Sex Discrimination Commissioner. She brings particular assets in her experience in a number of roles in working constructively with industry bodies to address equality issues: both in her current Sex Discrimination Commissioner role; and in previous work with the Council for Equal Opportunity in Employment. She has also shown a willingness to be forthright in identifying unacceptable practices and policies.
I am looking forward to effective work together, both in advancing the profile of disability issues and in developing and negotiating ways forward with industry government and community.
2.3 Recognition of previous Commissioners
In this my first public address as Deputy Commissioner I should recognise the work of the late Elizabeth Hastings as the first Disability Discrimination Commissioner.
Her own assessment of the work done in her term is available on the Commission's web site (on the "human rights and disability" page of the disability rights section) as are a number of her speeches. These papers contain many insights of continuing worth and rightly continue to be popular in terms of the number of hits recorded on the site. I would particular mention
- her enthusiastic support for putting in place a policy for properly accountable and open process for consideration of applications for exemptions under the D.D.A.;
- her commitment to openness and accountability more generally, including the effort she put into producing and circulating regular reports of policy processes and complaint outcomes;
- and her recognition of the importance of communications access issues, including support for production by the Commission of advisory notes on accessibility of web pages, starting back in 1996.
I should also note Chris Sidoti's work as Acting Commissioner from the end of 1997 to the end of September this year. I know that Chris had some disappointment over how much he was able to achieve on disability issues among his commitments around Australia and elsewhere as Human Rights Commissioner. But in my view some of the initiatives begun during his term will be important in taking the D.D.A. forward to greater achievement from here on, particularly the public inquiry approach to investigation of complaints with major public interest content.
3. Legislative changes
I also need to talk about some recent legislative changes through the Human Rights Legislation Amendment Bill number 1.
3.1 HRLAB 1 a necessary response to the Brandy decision
When this legislation takes effect, at a date to be set during the next six months, it will amend the D.D.A as well as the Sex and Racial Discrimination Acts to provide that in matters which are not resolved by conciliation the Commission will no longer have a tribunal function. The next stage after the Commission's investigation and conciliation functions will be the Federal Court.
The first thing to remember about this change is that like it or not it was made necessary by the High Court's decision in the Brandy case, where the court found invalid the legislative scheme which had given the Commission's decisions enforceable effect. The lack of enforceability has clearly been contributing to an increase in recent times in the number of respondents who were prepared to ignore the Commission's decisions.
3.2 The death of the D.D.A?
The issue which has led to the legislation being described as the "death of the D.D.A." is the potential for costs in the Federal Court to be awarded against an unsuccessful claimant.
I am not here to debate whether any other approach was achievable, or the rights and wrongs of positions taken by political parties on the legislation. I am concerned though with whether the D.D.A. remains a viable vehicle for achieving access and equality.
I have to say that while I respect the views of those strongly opposed to the changes I believe that the D.D.A. will be dead only if the community is persuaded that it is dead and acts accordingly.
Recall, first, that even the potential for costs only applies to that small proportion of cases that go to hearing currently. If matters are resolved in the investigation and conciliation processes they never reach the court and no question of costs arises. There will be no fees or costs issues in making an initial complaint to the Commission any more than there are now.
Second, the potential for costs already applies where matters get to the Court because the Commission's unenforceable determination has not been complied with. As I have said, this is happening more often.
3.3 The end of Commission hearings - or is it?
So the major change is the loss of the Commission's hearing process, and the chance for this kind of public process to achieve results even when everyone involved knows that the Commission cannot give enforceable remedies.
But does the legislation really mean the end of Commission hearings on complaints? In legal terms at least, what is being lost is not the capacity to conduct hearings at all but the post-referral hearing function, which comes after the investigation and conciliation phases.
The Commission can investigate complaints by any appropriate means, and a public inquiry or public hearing may be an appropriate element of investigation of a complaint with significant public interest components.
A framework for this approach was set out in a Practice Note on public inquiry into disability discrimination complaints, issued by the Commissioner in March 1999 and available on the Commission's internet site or in other formats on request. This approach will open the investigation of complaints, where appropriate, to broader public participation. Although such an approach has always been legally open, the time now appears more than ever ripe with
- the possibilities provided by the internet and other modern communications and the increasing range of disability community, business and government organisations having internet access
- a need to respond to concerns such as those identified by the National Alternative Dispute Resolution Advisory Committee regarding inappropriate "privatising" of disputes having public policy significance
- slow progress in resolution of disability issues through the standards process originally contemplated as the major mechanism for definition of rights and responsibilities under the Disability Discrimination Act.
Obviously the public approach to complaint investigation will not suit every issue or every complaint. Many complainants may prefer an entirely private dispute resolution approach and the Commission can hardly force them through a more extensive social policy inquiry if there are reasonable prospects for an appropriate resolution being achieved more simply or quickly through conciliation.
The public inquiry approach to investigation will be more readily applicable where there are no personal privacy issues to consider, particularly
- where the complaint is a representative rather than individual complaint or
- where the details of the complaint are already in the public arena.
We may need to consider further development of procedures to ensure that Privacy Act requirements are complied with so far as personal information is concerned, that all parties are clear in their expectations of what protection will or will not be provided to information, and that any possible prejudice to conciliation prospects is appropriately weighed against other objectives.
A public approach to investigation is not necessarily incompatible with resolution of complaints by conciliation. In fact one of the major benefits of this form of investigation may be to provide the parties to a complaint with a broader range of information and opinion on which to base options for conciliation than they or the Commission would otherwise have been aware of.
One of the advantages of taking a public approach to representative complaints is that it helps to deal with the basic issue of accountability and justice of ensuring that the people whose interests are being represented have an opportunity to know that the complaint exists and what is happening with it.
The main barrier to taking this approach is not one of legal power but of resources. The loss of the post-referral hearing function is being accompanied by a 1.5 million dollar budget reduction for the Commission, which is how much the tribunal function was estimated to cost to run. The number of pre-referral public hearings we can conduct will be very limited depending on what resources could be re-allocated from other Commission priorities - although it may be that the full time Commissioners would have more time for conducting processes of this kind once the legislation takes effect to transfer every day responsibility for complaint handling from them to the Commission President.
Not every public inquiry, however, needs to include a set piece hearing or series of hearings around Australia with all of the administrative, travel and staff costs that involves.
The procedure applied to consideration of applications for exemptions under the D.D.A. shows what can be done for little or no budget by making use of on line communications.
Exemptions can be and have been applied for by e-mail. Notices of inquiry on applications, and in some cases proposed decisions, are circulated mainly by e-mail and posted on the Commission's web site. The same is true of some other policy based inquiries such as the one into closed captioning.
In a number of these processes the majority of submissions have also been made electronically and made publicly available on the web site.
People making submissions are asked to identify any material which they wish to remain confidential. We do not promise to publish submissions made on paper, although improved scanning resources which we plan to put in place for other reasons will make it easier to publish paper submissions on line as and if desirable.
This means that the process of gathering material for a report provides a forum for debate and exchange and development of views and information, rather than the Commission's final report when finally available being the filter through which all input must pass.
4. Access to Commission information and processes
Recognising that electronic access provided properly can assist greatly in providing access for those of us who access information through Braille and speech, this conference is a good place to talk about some initiatives about increasing electronic access to the Commission's information and services more generally.
The Prime Minister announced some time ago that by 2001 all appropriate Commonwealth government information and services should be available on line.
The public inquiry approach to exemptions and to selected complaints are areas where the internet is providing opportunities for the Commission to improve its functioning as a national organisation for all Australia rather than only as a Sydney organisation and to conduct human rights work as a public participatory process.
The internet has also greatly assisted our efforts to provide the community with up to date information on disability projects and complaints.
The disability policy unit publishes a slightly edited version of the Commissioner's project report after each Commission meeting. We offer this in print where required, but have been able to delete almost all of our paper mailing list, as almost all the key organisations we deal with now operate on line. The on line version of this disability rights update is getting towards 500 hits a month (and rising). Some of these we know represent many more than one user - for example the NSW Spastic Centres copy it onto their internal network for some thirteen hundred users.
We get this out the day after each Commission meeting for almost zero net cost, compared to the print newsletter which used to take 3 months to produce, 3 times a year, at a cost of $2000 on each issue plus substantial costs in administrative staff time.
Almost everything that we write at the Commission exists in electronic form. Our practice on disability issues has been based on the view that if advice or opinion in a letter or paper is worth writing in the first place, it is probably worth publishing the content of it. The FAQ material, for example, on the site, for example, has been distilled from letters and advice over the years. In the case of the very substantial FAQ on employment issues, it represents the Commission's view of the results of some years of discussion of employment standards, which for various reasons have not borne fruit in more authoritative standards or guidelines, but with the advantage that the on line document is able to be updated frequently to reflect results in complaint handling.
Although the DDA contemplates the Commission selling copies of DDA Action Plans for a prescribed fee, we have been able to avoid the administrative burden this would involve, and provide better access free, by making action plans available on the web where they are provided to us electronically (and we get hundreds of hits each month on this part of the site). Since we have provided action plans on line the paper demand has vanished to almost nothing, and accessibility for users of Braille and speech formats is far beyond what it would otherwise be.
The economy and efficiency of internet publication have also permitted publication of a more comprehensive collection of summaries of complaint outcomes, for conciliated outcomes and for decline and decline review decisions. Although the Disability Discrimination Act permits publication of complaint information in the performance of a function under the Act (such as promotion of awareness and compliance) these summaries are edited to avoid unnecessary disclosure of personal information and to facilitate the conciliation process.
Turning from complaint outputs to inputs, at the moment the Commission is considering how to respond to the requirements proposed by the Electronic Transactions Bill, which will require recognition of electronic communication as satisfying existing writing requirements from July 2001, including in our legislation unless it is specifically exempted.
There are a number of administrative and legal issues for the Commission to work through in considering whether and how to receive complaints electronically. Comment from this audience would be welcome on issues you see in this area.
5. Standards
Getting back to recent legislative changes through the Human Rights Legislation Amendment Bill number 1, one change which received less attention was the extension of the disability standards making power in the D.D.A. to cover access to premises.
I should pause here to recognise the role of Blind Citizens Australia in providing support for standards development processes, through auspicing and leading the disability community Standards Project.
Provision was made in the D.D.A. for development of standards to give more definition and certainty to rights and responsibilities. Everyone involved in the development of the Act accepted disability community representations that complaints based on general non-discrimination provisions rights would not alone be sufficient to achieve widespread elimination of disability discrimination.
Obviously then it is a great concern more than six years after the D.D.A. came into force not to have any Standards in place.
The standards process which is most advanced is the draft standard for accessible public transport, approved in principle by transport ministers in June 1996 and again in May this year with some modifications.
My understanding is that progress on these standards can be achieved on two conditions: that work is completed on some legal mechanisms to meet industry demand for more up front certainty about compliance with the standards, and that some decisions are made one way or another on a small number of issues about what is achievable and what can reasonably be required.
The Commission position throughout this exercise has been and continues to be that we support the adoption of standards that advance the objects of the D.D.A.
We will be doing what we can to assist and encourage the conclusion of the transport standards process in the next few months.
If the remaining barriers to adoption of standards on accessible public transport can be overcome, we can hope for progress on standards for access to premises and perhaps also on other more complex issues including education.
6. Compliance mechanisms
When the Act was introduced Disability Standards were envisaged as the main mechanism for managing the process of transition over time from discriminatory and inaccessible systems and environments to inclusive, accessible non-discriminatory systems and environments.
Given, however, the slow progress we have seen towards adoption of Standards, the Commission has taken the view that we have to explore all available mechanisms for the same purposes.
There has already been a certain amount of success in using the temporary exemption mechanism under the D.D.A. to encourage and recognise compliance programs, particularly in the public transport areas. Although it may seem like a paradox, using temporary exemptions to promote compliance, the ability of the Commission to set conditions on an exemption and to require reports on how those conditions have been met means that there is really scope for a series of medium term and specific purpose standard setting exercises.
One of the agendas we will be pursuing in coming months is the possible wider use of this mechanism as the basis for positive programs to achieve equality, not just in public transport but across the areas covered by the D.D.A.
You may also have seen the draft policy proposal circulated earlier this year on dealing with complaints involving local government approvals of access to premises issues. That proposal contemplated adopting policy on the use of the Commissioner's power to decline complaints where there is another more appropriate remedy or where a complaint has already been adequately dealt with. Submissions in response to that particular proposal take a variety of positions, but show little support for the details of the proposal. The overall concept of adopting explicit enforcement policy, however, seems to me worth more consideration as part of the process of looking at all available legal bases for promoting compliance with the D.D.A. and its objects.
7. Major current issues - e-commerce reference
I want to conclude by drawing to your attention a major current inquiry process of great relevance to Blind Citizens Australia and its members.
The Human Rights and Equal Opportunity Commission has been given a reference by the Attorney General to investigate the implications for older Australians and Australians with a disability of new technologies in electronic commerce and the provision of government and other services, and outline their specific needs in accessing services which use these technologies.
The Commission is to provide an interim report by 1 December 1999 and a final report by 31 March 2000.
The Commission is seeking comments on
- issues affecting equal access in a number of areas of information and services, including banking and financial services; other business services (such as retailing and travel services); government information and services, and participation in government processes, and education.
- different types of access barriers, and options and best practice in different types of solutions, including needs for additional information, explanation or human service beyond that currently provided by or in association with automated systems; difficulty in using the vision, sound or touch input or output formats provided for use of technology or in information required for use of the technology; needs for provision of education or training on use of technologies; economic barriers to access to some technologies; and legal impediments which may exist to use of digital technologies to promote equitable access to information or services in some settings.
- issues affecting equal access through a range of technologies, including world wide web and other internet use (whether accessed through computers, mobile or other telephones, or other devices); telecommunications based services (including automated bill payment and information services); and specific purpose devices such as Automatic Teller Machines, EFTPOS facilities (such as self service payment facilities at petrol pumps) or information kiosks.
A survey of accessibility of government and major business World Wide Web facilities will be a specific project within this reference.
The importance and timeliness of this reference is confirmed by the release of Tim Noonan's study for BCA on accessibility of E-commerce for people with disabilities, which is available through BCA's web site and is being launched at this conference. I urge you all to seize the opportunity presented by this reference to take forward the many issues of equal access and participation in this area.
8. Concluding remarks
Some of the morals from Bruce Maguire's story have been threads through this keynote speech.
Bruce could not have achieved what he has without his partnership with BCA, and the availability of legislative mechanisms in the DDA which the Human Rights Commission administers:
- Whilst quite effective, the legislative mechanisms are not perfect, and the Commission seeks to work - in partnership with people with a disability and the Australian community - to improve these mechanisms, both by legislative amendment and innovative use of the existing mechanisms.
- Whilst some of the legislative changes provide new challenges such as the possible awarding of costs, they also strengthen the legislation because decisions made will be enforceable. People with a disability will need to think strategically about which matters they take to hearing, and work in partnership on such hearings.
- Finally, Bruce's complaint has changed what it means to be blind because he has fought discrimination, not only against himself but against all Australians whose primary access to the written word is through Braille. Using the Commission's mechanisms, in which I will now have a key role, BCA has the opportunity to provide a more equal society for Australians who are blind and vision impaired. I encourage you to grasp that opportunity in the new millennium.
