Disability Enterprises Annual meeting
| Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner 30 July 2004 |
 |
Introduction
Allow me to begin by acknowledging the traditional owners of the land on which we stand and pay my respects to their elders both past and present.
It is my custom to make this acknowledgement at public events because I think recognising Australia's indigenous history is an important element in recognising the truth of our diversity as a people.
Of course, another important element of that diversity is that people with a disability are an inherent part of the Australian community.
I think this simple fact is becoming more widely recognised than it used
to be.
It can be frustrating, though, to see how little political and media attention
is still given to disability issues affecting millions of Australians
in their daily life - and how much attention instead can be given to debates
about things like new genetic knowledge and medical technologies, which
are praised or feared for supposedly offering a world of physically and
mentally perfect people.
This sort of discussion strikes me as unreal and pretty much beside the point. It seems to me that, whatever we do with genetics or medical technology, the dangers and uncertainties of life, and for that matter the certainties of life such as the ageing process, mean that disability will continue to be an inherent part of the human experience.
Whatever developments there may be in future in research on repairing
spinal chord injuries, for example, people with all sorts of physical
and sensory disabilities need accessible buildings and environments now.
In fact more of us will need accessible facilities in the future as the
population ages.
Australian Bureau of Statistics figures tell us that around one in five
Australians has a disability.
If anything those figures seem to be an underestimate, taking into account more recent evidence indicating that either hearing impairment or some experience of mental health problems would account for one in five Australians by themselves.
On average, almost anyone should expect to have immediate family experience of disability and should expect a significant chance of experiencing disability directly during life.
In view of this, it really is quite bizarre how often disability has
been, and still is, overlooked in thinking about "normal" families,
communities, schools and so on. How often disability is thought of, it
if is thought of at all, as about "them", not "us".
How often systems and facilities and places and programs and places in
our society are still designed as if everyone is from the imaginary world
where disability does not exist and everyone is "normal".
I am not going to say much today about the experience of disability in
my own life or my own family.
But I will say that over the last few decades there has been a lot of change from a society where individuals or families affected by disability were pretty much on their own.
The history of your own organisation, as I understand it, is one which commenced with the purely voluntary efforts of families, but has moved to a position where a level of government support is received, in recognition of the fact that the services your organisation provides really are necessary to support basic rights of members of our community.
Support and accommodation for children and young adults with high support needs and their parents still are all too easily thought of or ignored as specialised issues.
But, as I have tried to argue, disability is not a minority issue; it is a universal part of human experience - and what could be more universal than the needs and human rights of our children?
Human rights in theory and practice
I have been invited here to speak to you today about issues in turning human rights in theory into human rights in practice.
Your own organisation is working very much at the practical end of human rights. I hope you may get something of value from quite a different perspective.
My work with the Human Rights and Equal Opportunity Commission involves national policy work based on international human rights principles which have - in part- been given effect in national legislation.
The 1981 International Year for people with disabilities provided a focus for disability community activism. One response from government was to include the United Nations Declaration on the Rights of Disabled Persons and the Declaration on the Rights of Mentally Retarded Persons in the jurisdiction of the Human Rights Commission established that year.
But the legislation did not create any real rights in a legal sense - only a power for the Commission to investigate complaints where actions of the Federal Government were involved.
As you probably know, some of the content of international declarations on disability was given more definite legal form in the Disability Services Acts which were passed later in the 1980s.
These Acts set standards for how specific services for people with disabilities should operate - including provisions for dealing with complaints of abuse and for participation in how services operate.
It would also be no news to this audience however that there is considerable
unmet need in Australia for disability services, support and assistance
- in areas including personal assistance and care, respite support for
family carers, accommodation, interpreting services, education aides,
access to assistive technology, and support in meeting additional costs
presented by disability in participating in employment, education and
other areas of life.
There remains no general enforceable legal right for people with disabilities
and their families to receive the support, assistance and other services
they require.
It is not only people with disabilities and their families who lack the
protection of broad human rights laws - Australia does not have anything
like a bill of rights and so human rights are much more dependent on political
processes than I think most people realise.
The DDA
One major set of legal rights we do have though is provided by discrimination laws like the Disability Discrimination Act which was passed in 1992.
Areas covered
The DDA makes it against the law to discriminate in the following areas
of life :
- Employment
- Education
- Access to premises used by the public
- Provision of goods, services and facilities
- Accommodation
- Buying land
- Activities of clubs and associations
- Sport, and
- Administration of Commonwealth Government laws and programs.
Definition of disability
The definition of "disability" in the DDA is intended to be
broad and includes physical, intellectual, psychiatric, sensory, neurological,
and learning disabilities.
The DDA covers a disability which people:
- Have now,
- Had in the past (for example: a past episode of mental illness),
- May have in the future (for example: a family history of a disability which a person may also develop), or
- Are believed to have (for example: if people think someone has a disability or illness because they are a carer for someone who has that disability or illness).
The DDA also covers people with a disability who may be discriminated against because:
- They are accompanied by an assistant, interpreter or reader,
- They are accompanied by a trained animal, such as a guide or hearing dog, or
- They use equipment or an aid, such as a wheelchair or a hearing aid.
Carers and other associates are covered
The DDA also protects associates of people with a disability such as family, friends, carers and co-workers if they are discriminated against because of that relationship. For example, it would be unlawful discrimination if:
- A parent is refused a job because the employer assumes he or she will need time off work to look after a child with a disability
- People are refused access to a restaurant because they are with a friend who has a disability;
- Lack of physical access for a family member prevents a carer and other family members from enjoying a night out together, if access could have been provided without unjustifiable hardship
- A carer of a person with a disability is refused accommodation because of his or her association with the person with a disability.
Complaint process
The main mechanism provided by the DDA for dealing with discrimination is the complaint process. Complaints can be made:
- by a person directly affected by discrimination (for example if you have experienced discrimination yourself as a carer)
- by a person acting on behalf of another person who has been discriminated against (for example a carer can complaint about discrimination experienced by the person they are caring for)
- by a person on behalf or him or herself and on behalf of other people who have experienced the same discrimination (this is what is meant by a representative complaint or class action); or
- by an organisation acting on behalf of members or constituents who have been discriminated against .
Compared to other legal processes, there are very few formal requirements for discrimination complaints. Complaints do need to be put in writing but people who have difficulty with this can ask Commission staff to assist. Complaints can now also be made by email.
In some circumstances the Commission can also assist complainants to
find other supports they might need, like an interpreter or advocate.
A network of disability discrimination legal services was funded by the
federal Attorney-General's Department from the outset of the legislation
and there are also specific legal services focused on mental illness,
HIV/AIDS and intellectual disability.
There is also expertise on disability discrimination issues in some of
the more general community legal centres around Australia. Your own Blue
Mountains community legal centre deserves a mention in this respect and
I encourage you to develop contacts with them if you have not already
done so.
HREOC will investigate any complaints received that are within its area
of responsibility. If it appears that disability discrimination has occurred,
the person or organisation will be asked to participate in a conference
with a conciliator and the complainant in order to help resolve the matter
to the satisfaction of both parties. This is called conciliation. Depending
on the complaint, conciliation may result in:
- changes in policies or practices
- job reinstatement or promotion
- an apology
- withdrawal of the complaint
- payment of damages, and/or
- some other outcome.
Where a complaint cannot be resolved by conciliation, you can take your
complaint to the Federal Court for an enforceable ruling if you choose
to.
Only a very small proportion of complaints end up in the Federal Court. Of the complaints which are found to be within our jurisdiction a large majority are resolved by conciliation.
Achievements using Australia's Disability Discrimination
Act
The record of achievements using the DDA is encouraging, although clearly much more remains to be done.
Transport
Access to public transport has been a striking area of success under the Disability Discrimination Act. From a small handful of initial complaints, HREOC and disability community representatives were able to negotiate agreement by all Transport Ministers to a strategy including accessibility of all new public transport facilities and services throughout Australia, and accessibility of existing services and facilities within 20 years (with a small number of exceptions). Standards for accessibility entered force during 2002. Many public transport operators had been applying the draft Standards in effect for several years before that.
Access to premises
Access in the built environment is another important area of achievement, but where much more also remains to be done. There have now been hundreds of disability discrimination complaints in Australia which have been resolved with an agreement to modify premises to make them accessible. However, to make a significant impact on access and opportunity, the numbers of buildings made accessible need to be not in the dozens or even hundreds each year, but in the hundreds of thousands.
We are now several years into the process of developing standards on access to premises. The stage has now been reached of hard bargaining about what the building industry can afford to do. I am hopeful however that within a few months national standards will be agreed and that accessibility in new or redeveloped buildings will finally become a matter of routine (other than in the most exceptional cases).
Education
Many more children with disabilities are now included in mainstream schools than was the case ten or twenty years ago. However there are still important problems to be addressed in ensuring that people with disabilities have truly equal access and opportunity in education. These include issues of accommodation of students with particular communication and information needs and how to accommodate students whose disability affects their behaviour.
Draft standards on education under the Disability Discrimination Act are now close to being adopted. These may assist in achieving further change towards more effectively inclusive education systems. The government announced last month that these standards would be tabled in Parliament later this year.
Employment discrimination
Access to employment opportunities is clearly a very important part of access to economic and social participation and opportunity. So it is disturbing that employment is one of the areas where there has been least progress since the adoption of the DDA.
More complaints are received on employment issues than any other area under the DDA. A high proportion of these complaints have been resolved by conciliation. But very obviously we cannot hope to achieve equal opportunity for millions of Australians with disabilities one complaint at a time.
Rates of unemployment, and underemployment, among people with disabilities remain much higher than for people without a disability.
I am currently considering whether a national inquiry in this area would help to move the issues forward. I will be issuing a consultation paper on this subject in the next few days.
Challenges and limits of achievement
I have to admit that we have been able to achieve less for some sections of the disability community so far than for others using the DDA.
In particular, people with intellectual or psychiatric disabilities have not had the same clear benefits as people with physical or sensory disabilities.
Issues which present ongoing and major challenges for human rights of people with disabilities in Australia include:
- equality in the legal system;
- access to effective mental health care and stigmatisation and discrimination against people with a psychiatric disability;
- the rights of people living in institutional environments;
- access to appropriate accommodation; and
- inadequate levels of support services for people with disabilities and their families.
Some of the limits of progress achieved on these issues relate to the fact that a discrimination law is not the same as a comprehensive law on rights and entitlements for people with disabilities and carers.
The legal concept of discrimination at least as we have it at present is not the same thing as services or programs being inadequate or missing despite the impact this can have on human rights.
Young people in nursing homes
An important example of an issue where discrimination law does not offer much help and where other political processes need to be used is the issue of young people with disabilities being placed in nursing home facilities because of a lack of sufficient age appropriate facilities to cater for their support needs.
No doubt this is an issue which people in this organisation are familiar
with given your own mission n providing appropriate accommodation and
support.
Can I encourage you though if you have not done so already to consider
making submissions to the Senate inquiry on aged care which has recently
expanded its terms of reference to include this issue.
A link to this inquiry is included from the disability rights page of our own website, which also contains a wide range of other material providing information and advice.
Conclusion
The goals I see for the next few years of the DDA are simple to state, however challenging they may be to achieve:
- To continue the expansion of opportunity and access for people with disabilities and the elimination of disability discrimination across Australia
- To keep moving forward in areas of success, such as transport and access to premises, while seeking more effective strategies in other areas such as employment and for sections of the disability community who are benefiting less than others from the legislation.
The Human Rights and Equal Opportunity Commission will continue to seek every opportunity to pursue these goals through the policy processes available to us, including public inquiries and negotiation of standards.
However, the main driver of change towards a more accessible and equal Australia remains complaints and advocacy by people with a disability and their families to pursue their own aspirations.
I would like to encourage everyone in the disability community to consider
how they might make use of the tools provided by the law in pursuing your
rightful, equal place in Australian society.
