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DISABILITY DISCRIMINATION DEVELOPMENTS

Dr Sev Ozdowski OAM,
Acting Disability Discrimination Commissioner

AUSTRALIAN INDUSTRY GROUP: NATIONAL PIR (Personnel and Industrial Relations) CONFERENCE
Hyatt Hotel, Canberra
Tuesday 26 October 2004

 Sev Ozdowski

Acknowledgments and introduction

Heather Ridout, Chief Executive Australian Industry Group;

Thank you for inviting me to speak today.

Allow me to begin by acknowledging the traditional owners of the land on which we meet - the Ngunnawal people.

I make this acknowledgment in all my public presentations around Australia, not only because I believe that it is good manners to do so, but also because recognising the indigenous history of this land is an important element in recognising the truth of our diversity as a people.

Last night I enjoyed speaking with many of you during the conference dinner. I understand that you are very interested in the Government's proposed industrial relations reform agenda.

This is not my area of authority or expertise. But I would like to caution against any assumption that the Human Rights Commission will always automatically be against measures just because they are supported by employers.

Speaking quite personally for a moment I still remember my surprise, not to say anger, at being required to join the student union at the University of New England in the 1970s and pay some $200 out of my $4000 scholarship for something I did not want or need. But, I was told, no ticket no PhD, so I paid.

Of course as you all know there is more to freedom of choice than absence of direct coercion. In the context of measures to increase workplace flexibility I should mention that the Commission remains very interested in seeing further development of flexible work practices in the direction of work practices which accommodate workers with family or carer responsibilities, and workers with disabilities.

I will not comment further today on the industrial relations agenda, other than to say that I know that our own Minister the Attorney-General is strongly committed to equality of opportunity, as witnessed by the recent introduction of age discrimination legislation, and the continuing support of the Minister and the Government for development of standards under the Disability Discrimination Act in the areas of education and access to premises.

Employment a major focus of HREOC resources

You have invited me here to speak on disability issues in my capacity as Acting Disability Discrimination Commissioner, and I will move on to those issues in a moment.

As you would be aware, though, the Human Rights and Equal Opportunity Commission also deals with other aspects of workplace diversity, in areas such as race, sex and age discrimination. I have also started to work on guidelines relating to discrimination in employment and criminal record.

In fact employment will become a more major focus for HREOC resources with the launch of a range of new resources for employers in November 2004.

The 'Good Practice, Good Business' Employer's Pack will provide employers with a range of resources to assist them in addressing discrimination and harassment in the workplace, including:

Disability resources

The Commission also has a range of materials relating more specifically to disability. These are available on www.humanrights.gov.au and I have also made some available in their paper forms for distribution at this conference.

At a general level these include a review which I published last year of the operation of the DDA in its first ten years, and an introductory pamphlet on the DDA.
We have tried to make available material which explains the law in simple and non-technical terms: for example the pamphlet summarises discrimination and disability as follows:

"Discrimination happens when a person is treated less fairly than a person without a disability. It also happens when someone is treated less fairly because they are a relative, friend, carer, co-worker or associate of a person with a disability. ... The definition of disability used in the Act is broad, It includes physical, intellectual, psychiatric, sensory, neurological and learning disabilities. It also includes physical disfigurement and the presence in the body of disease-causing organisms such as the HIV virus. The Act covers disabilities that people have now, had in the past, may have in the future or which they are believed to have."

The pamphlet also includes some material on equal opportunity for people with disabilities in the workplace. We have a range of much more detailed resources in the employment section of the disability rights area of the Commission's website.

But I do not want to talk today about the details of the law so much as about day to day realities.

Disability and diversity

Recognition of our diversity is particularly important in discussing issues in relation to disability.

Because there still often seems to be a lack of recognition that people with a disability are an inherent part of the diversity of the Australian community, including in the workforce.

In discussions with people engaged in diversity and equal opportunity policy and practice, there is often a focus on cultural diversity - and people with funny accents like mine; or on issues affecting women and workers with family responsibilities; but much more rarely on disability.

People with disabilities are part of your workforce now

Even without discussing disabilities acquired through workplace injuries, just the high rate of mental health conditions now increasingly recognised as occurring in the community - as many as one in five of us during our lives - makes it almost inevitable that every employer at some point will deal with, or fail to deal with, disability issues.

Similarly, there are recent indications that the rate of significant hearing loss in the community may be as high as 20%.

Add to this the increasing number of people recognised as having difficulties in learning or reading, and it should be clear that we are not only talking about smaller groups of people with more readily recognised disabilities, such as people who are completely deaf or blind or who use a wheelchair or have an intellectual disability.

So in talking about disability in relation to any employment issue, we are really talking about recognising and dealing with the diversity of the workforce and community as it is now, not proposing some untested radical social experiment.

Under-investment in people with disabilities as employees

Of course, advocates of equal opportunity are interested in achieving change, in the direction of increasing opportunities - as a matter of human rights as well as in terms of sustainable and long term economic policy.

Unemployment rates for people with disabilities are twice those for the rest of the community, while workforce participation rates are 30% less.

The ABS figures for 2000 indicate that when the general unemployment rate was 6%, the unemployment rate for people with disabilities was 13%. The general labour force participation rate for people of working age was 80% but the corresponding rate for people with disabilities was only 53%.

Mr Mark Bagshaw, that tireless proponent of the economic rationalist case for an inclusive society, has estimated that on these figures government was spending over $11 billion on paying people not to work - while the Australian community was losing $41 billion of lost potential productivity.

At the same time, he was only able to identify half a billion dollars spent on targeted measures to increase employment of people with disabilities - including frankly quite tiny amounts on the workplace modifications, wage subsidy and supported wage schemes.

More recently ACROD, the disability services industry association, has advised me that for every dollar spent on disability support payments there is five cents being spent on disability employment assistance.

Media coverage

Media coverage of these issues is disappointingly hard to achieve. But allow me to quote for a moment from an article in last week's Canberra Times.

"There are few examples of social exclusion so glaring as that experienced by people with a disability and their exclusion from the mainstream is reflected in many parts of the Australian community. It is time for a renewed effort to combat that segregation.

The Productivity Commission has found that people with a disability were less likely to finish school, to have a TAFE or university qualification and to be employed.

They are more likely to have a below average income, be on a pension, live in public housing and in prison. The average personal income for people with a disability is 44 per cent of the income of other Australians.

There are laws in place to discourage discrimination and room to improve those laws. But laws on their own will not be enough to reach the goal. We need to transform structures and attitudes to achieve a real integration and acceptance of people with a disability in our community.

The issue the re-elected Howard Government should address is how to improve the inclusion and participation of people with a disability, to help them fulfil their potential. The focus should be on helping people live better lives, not on budget-cutting exercises like reducing the Disability Support Pension. …
Part of the change needed is to adapt workplaces to better accommodate the employment of people with a disability. Work is important for self esteem and well being. A community's success is often measured in terms of employment levels and productivity. So improving the employment rates of people with a disability - where unemployment rates are 70 per cent higher than the general population - is very important."

Those remarks were from one of our longest serving parliamentarians, Senator Brian Harradine.

I do not think that he is a person whose opinions could easily dismissed by any politician, media commentator or other participant in our political processes as one of the trendy left wing "usual suspects" agreeing with the party line emanating from the Human Rights Commission.

Welfare reform and participation costs

Senator Harradine's article referred to possible changes to disability support pensions.

A number of commentators on the recent election result have noted that, with the changed composition of the Senate, welfare reform in relation to disability pensions may now progress.

Clearly there are real issues for government to address in this area.

But, like Senator Harradine, I am concerned that there is a risk of the issue being approached only in terms of pushing people back to work by reducing or taking away benefits for those assessed as capable of working.

I would hope that we might see a more sophisticated approach which also includes some discussion of how better to meet the costs of participation for people with disabilities, and costs of disability related adjustments for employers.

I would hope to see support from industry bodies for such an approach.

Possible public inquiry

You may be aware that I have been seeking views on the possibility of the Human Rights and Equal Opportunity Commission conducting an inquiry on issues affecting employment opportunity and outcomes for people with disabilities.

I hope to have a decision very shortly on whether and how an inquiry might proceed but I can say that comments received so far have strongly supported conducting such an inquiry.

I know that some employers may have more reservations about an inquiry than some other stakeholders.

So I am very anxious to avoid an inquiry being seen as a negative exercise, a witch-hunt to impose unjust financial burdens on employers or a venue for re-hearing of individual complaints. It would be more appropriate for an inquiry to examine systemic and structural issues rather than seeking to inquire into individual instances or allegations of discrimination - since these can be pursued through confidential complaint processes under the Disability Discrimination Act and largely equivalent State and Territory laws.

I would see an inquiry as an opportunity to identify instances or areas of successful or promising practice, as well as areas of barriers and difficulties.

It would also be an opportunity to examine and draw attention to any matters in which employers are not getting what they need from governments, in seeking to take better advantage of the skills and abilities of the whole of Australia's workforce including people with disabilities - whether that is in terms of

Some of these issues were discussed in the review by the Department of Family and Community Services last year of the Workplace Modifications Scheme. The process for that review included fairly extensive consultation and its report made what I think are important recommendations on a wide range of issues affecting employment of people with disabilities.

I would not want an inquiry to duplicate existing work but I believe there is a role for an inquiry in giving more publicity and priority to issues where there have been previous reviews but not always enough implementation.

I do not think that it is an option for us to carry on with business as usual in this area when the statistical picture on equal opportunity and participation appears to be so poor.

Indeed, in the Commonwealth Government's own employment the representation of people with disabilities seems actually to have gone backwards in the 12 years since the Disability Discrimination Act was passed and since the Senate Community Affairs Committee inquiry on employment of people with disabilities.

I have already raised the possibility of an inquiry informally with Australian Industry Group and with other employer bodies.

One important potential part of an inquiry process would be for representative bodies - whether from industry or the disability community - to auspice discussions on issues of interest to their constituencies. These could be public or private, electronic or face to face, or a mix of each as each organisation concerned thought best.

Productivity Commission inquiry

The proposed enquiry would follow on from the recent Productivity Commission review of the DDA.

That review was broader - in that it dealt with all issues covered by the DDA - but also narrower - in that focussed on the legislation rather than on all the other factors which may affect employment in practice.

Speaking as a member of the Commission which administers the Disability Discrimination Act, I am in agreement with Senator Harradine in thinking it is all too easy to over-estimate the importance of legislation in achieving equality or any other social goal. That is why we are looking at an inquiry that goes beyond the law reform agenda which occupied most of the attention of the Productivity Commission inquiry.

At the same time, the Productivity Commission did make important findings and recommendations.

The Productivity Commission was asked by the Federal Government to review the effectiveness of the DDA and its costs and benefits. The review found that

I think this report confirms that a society which better includes Australians with disabilities will benefit all of us by being more productive as well as fairer.

Reasonable adjustment

I regard as particularly important the recommendations to make clearer the duty under the DDA to make reasonable adjustments to accommodate people with disabilities in employment and other areas, and also for governments to share in the costs of making adjustments.

I am not arguing, and I do not believe the Productivity Commission was arguing, for burdensome new obligations on employers either in procedures or in substance.

What I regard the inquiry as recommending is rather a clarification of requirements for reasonable adjustment which are already there in the DDA but not clearly stated or well defined.

The explanatory memorandum and second reading speech accompanying the introduction of the DDA clearly indicate that the Act was intended to require employers (and other parties with obligations under the legislation) to make reasonable adjustments to accommodate people with disabilities - subject to a range of important limitations, in particular by reference to the concepts of "unjustifiable hardship" and the "inherent requirements" of a particular job.

It must however be conceded that the drafting of the legislation does not give effect to this intended purpose anywhere near as clearly as might be desirable.

Section 5 of the DDA defines direct disability discrimination as occurring where a person with a disability is treated less favourably because of the disability than persons without the disability are or would be treated in circumstances which are the same or not materially different. Section 5(2) specifies that for this purpose, the fact that a person with a disability requires different accommodation or services circumstances is not a material difference.

In the case of Purvis v New South Wales last year the High Court found, among other things, that section 5(2) did not impose an obligation to make reasonable adjustments.

HREOC did not consider this decision would seriously undermine the effectiveness of the DDA - since our longstanding view has been that requirements under the DDA to make reasonable adjustments arise from DDA section 6, which (shortly stated) defines indirect discrimination as including any unreasonable requirements which disadvantage people with a disability.

In the context of employment, relevant requirements also arise from DDA section 15(4) which provides that it is not unlawful to dismiss or refuse to employ a person who, because of disability, cannot perform the inherent requirements of the job without additional services or facilities - but only if providing those services or facilities would impose unjustifiable hardship.

Some comments made in the wake of the Purvis decision, however, appeared to indicate a view that, because section 5(2) has been found by the High Court not to impose a general duty to make reasonable adjustments as part of the concept of direct discrimination, failure to make such adjustments will not contravene any provision of the DDA.

This included remarks made in the course of two court decisions: Fetherston v Peninsula Health in the Federal Magistrates Court and Forbes v Australian Federal Police in the Federal Court.

I do not know whether many employers would have seen these comments and been confused by them, or simply discounted them instead, taking into account the number of previous cases where the DDA has operated as intended and been interpreted to include a requirement to make reasonable adjustments where necessary subject to limits based on unjustifiable hardship and the inherent requirements of the job.

For example, in Daghlian v Australian Postal Corporation in 2003 the Federal Court found unlawful discrimination in requiring a counter worker who had a disability to work without a stool to sit on.

In Cosma v Qantas Airways Limited, also in 2003 the Court confirmed that there was a duty to make adjustments to enable an employee to perform the inherent requirements of the job, while also confirming that this did not extend to requiring permanent alteration of those requirements to suit the capacities of an injured employee.

The recent decision of the Full Federal Court in Clarke v Catholic Education Office makes clear that employers should not be misled into thinking that the DDA does not require reasonable adjustment.

All that the decision of the High Court in Purvis v NSW means in this context is that the legal basis of reasonable adjustment is found in the DDA's coverage of indirect rather than direct discrimination.

Clearly, though, it would be better for the legislation to spell out more clearly what is and is not required instead of having to go through these sorts of arguments in the courts.

Conclusion

I hope to see a response from government to this and other recommendations from the Productivity Commission review as soon as possible now that the election is settled.

But as I have said, reform of the details of discrimination law is clearly not the whole story in working towards a society which provides for more equal participation by all its members, and an economy which makes more productive use of available human resources, by more effectively including people with disabilities.

The public inquiry I am proposing is intended as I have said not as a hunt for the guilty but as a search for new and better ways of working together towards these goals. I would be very happy to take up any suggestions for co-operation through this process or in other means of advancing productive use of diversity and equal employment opportunity for Australians with disabilities.

Thank you