Workshop on using the Disability Discrimination Act effectively
David Mason, Director, Disability Rights policy, HREOC
Disability with attitude conference: University of Western Sydney, 17
February 2001
Let me first pass on regrets from Sev Ozdowski that he was not able to be here as planned. He very much wanted to attend this as the first major disability conference since he commenced duty as Disability Discrimination Commissioner at the end of last year - but he had surgery this week that meant he could not travel.
I am not going to present a long paper on strategic approaches to disability discrimination. We only have limited time today and this is intended as far as possible to be a practical workshop where we get practical work done.
What I would want to say about history and strategy is contained in the first half of Elizabeth Hastings' "Foundations" paper from 1997 and in Graeme Innes papers late last year to the Physical Disability Council of Australia and to the "Constructing law and disability" conference. If you have not read them yet I suggest you do. They are on our web site of course, and available in other formats on request
But I do need to give a brief introduction.
When the DDA was being drafted in 1991, complaint processes were seen by government, community and HREOC as insufficient to achieve large scale change. Some of the evidence for this was the general ineffectiveness of the disability provisions of State discrimination laws up to that point in achieving much systemic change. On the basis of United States experience, standards were seen as the main feature of the DDA which would make a difference - by allowing industry wide or issue wide results to be negotiated with broad community and industry participation instead of complaint outcomes only involving and applying to the immediate parties to those complaints.
10 years on, no standards are in place. Transport standards are - we are assured - very close to authorisation, and there may be some progress on building issues this year, but the picture on other issues is not very encouraging. The community and the Commission alike have devoted a large share of our time and energy over the last 7 years to negotiations towards standards in several areas. I still regard standards as important where they can be achieved but - even more than Elizabeth Hastings did in 1997 - I think there needs to be a reassessment of priorities in where time and effort are directed.
Often, the driving force that brings other interests to the table to negotiate standards, and keeps the negotiations moving forward, is complaints or the threat of complaints. The same is true for the "mini-standards" processes we have applied to a few issues using the power to grant a temporary exemption on conditions. And of course there are some issues - like telecommunications or many other areas of service delivery - where DDA standards are not legally provided for; and other issues where standards may be legally possible but have not been achieved and may not be achieved in the near future. On these issues complaints remain not just the initial strategy but the only game in town.
So we need to give more attention to effective use of the complaints process.
Not that complaints have been ignored in our efforts so far. The Commission's disability complaints team has always had as many staff as the policy section, and currently has several more. The DDA legal services - whose funding we helped to negotiate - have twice as many staff between them as I have available for standards and other policy work.
The issues as I see them are:
- how many systemically important complaints are being made and
- what is being done with them when they are made.
We receive between 300 and 400 complaints under the DDA each year. One way to look at those numbers is to say, wow, that's more than usually come in under the Sex or Racial Discrimination Acts, clearly people with disabilities are aware of the legislation and how to use it. But that's not the conclusion I draw.
400 complaints are really nothing in proportion to the number of complaints that could be made. Almost any one person with a disability could come up with that many discriminatory barriers or incidents experienced in a year. Then multiply that number by 3 million people . At times it seems that we see more emails and conference papers complaining about the effectiveness of the DDA or of HREOC, than we see complaints under the DDA to actually put the legislation into effect.
Of the complaints that are made, most are brought by "ordinary" individuals, often seeking a purely individual remedy. Of course there is nothing wrong with people making those complaints. My point is that most complaints are not made by or through organisations or by well informed activists as part of a strategy of eliminating discrimination on a large scale.
40% of complaints are brought about employment issues for example. A small number of these raise major systemic issues. But most do not. Many are from people in effect seeking review of workers compensation decisions - of limited significance to anyone beyond the individual concerned.
I have to say also that very small numbers of complaints are brought through the Disability Legal Advocacy Services, and few enough of those complaints that do come from these services appear to have been selected for any major systemic impact rather than on the basis of who happens to come through the door.
I want to start some discussion about why we are not seeing more complaints being made, and more complaints which are designed to have some strategic impact, and what do we do about it. I hope we can get beyond general expressions of dissatisfaction or loss of faith or whatever about the Commission and the legislation - we've seen those - and start looking at what the Commission or others should be doing differently.
One initiative already underway to address limits of individualised private processes in dealing with broad community issues is the public inquiry approach to complaints. A summary paper on public inquiries has been circulated here. Much more extensive material including the proceedings of inquiries so far is available on our web site. Suggestions for further development or refinement of this process would be welcome.
But to conduct inquiries into complaints, HREOC - or any other discrimination agency which might pick up this approach in future - needs to be receiving suitable complaints in the first place. Also, the public inquiry approach is not going to be appropriate or available for anywhere near every complaint and I'm sure isn't the only initiative we ought to be considering.
So, what else?
More information and training? Lots of money and time has been invested in information provision about the DDA and how to use it. I'm thinking of the Manual for advocates and the large amount of information available through our web site. The limited results in terms of complaints received in return suggest that more of the same is not the only answer we need to think about.
More advocacy? I think we do need to look at effective use of existing the DDALAS resources by the community. This is not something that HREOC can control or direct, however.
Making it easier to complain: Something which is more within HREOC's power to change, though, may be making it easier to complain. I'd like to get reactions today - or by email over the next few weeks if you want to think about it a bit more - to a few ideas. I'd also like any additional ideas in this area which we ought to be putting forward for consideration by the President and the staff within the Commission who have responsibility for complaint handling:
1. Email complaints: Would you, or your organisation or its members, be more likely to make complaints by email than the current procedure of lodging written complaints by post?
2. Would "fill in the blanks" complaint forms for different issues - like a "defect notice" for premises access issues - result in more complaints, or more effective complaints, than the present single standard HREOC complaints form (which is not compulsory to use but is the only form we provide)?
3. Is your organisation interested in assistance in developing a standard "just sign here" complaint on a few priority issues?
4. Is your organisation interested in a more "hands on" workshop session on how to turn priority issues into complaints?
5. Do you or your organisation have access to a web site or other means where you could - if you wished - publicise the fact that you have made a complaint and what's in it?
6. What else is holding people back from more active use of disability discrimination complaints?
