2nd Victorian state conference for disability direct support workers: Opening address

Dr Sev Ozdowski OAM
Acting Disability Discrimination Commissioner

Melbourne, 28 November 2002

Sev Ozdowski

Introduction

Allow me to commence by paying my respects to the people of the Wurundjeri nation, the traditional custodians of the land on which we meet.

I congratulate the organisers of this second Direct Support Worker Conference, following from what I understand was a very successful event last year.

I thank the Australian Society for the Study of Intellectual Disability and the other conference sponsors for the opportunity to speak here.

I hope that you are not expecting from me a speech full of stirring rhetoric, to inspire you before you settle into detailed and practical discussions throughout the rest of this conference.

Stirring rhetoric is not really my style - I prefer practical information. Anyway, I do not think you need me to talk to you about

  • the inherent dignity and rights of every human being
  • the need for disability to be recognised as a normal part of the experience of being human; or
  • the importance of enabling people with disabilities to participate equally in the life of our society.

I expect that, as people engaged with direct support for people with disabilities, you are as fully aware of these things as I am.

I do have direct knowledge of some of the challenges that can face people with intellectual disabilities and their families.

But my own work for many years on human rights has been at the level of national or statewide policy - with Australia's first Human Rights Commission in the 1980s, and with issues of multicultural policy for the Commonwealth and South Australia from then until taking up the role of federal Human Rights Commissioner and acting Disability Discrimination Commissioner.

Rather than needing any inspiration for your conference proceedings from an opening address, I expect you are looking forward with some impatience to getting into the very wide ranging paper and workshop sessions on the program.

But despite that, I am not going to surrender the microphone just yet.

Discrimination law and people with intellectual disabilities

As some of you would know, I was in Melbourne two months ago for the Inclusion International conference. At that conference I spoke about

  • the limited use made by people with an intellectual disability of anti-discrimination laws in Australia; and
  • prospects for more effective use of anti-discrimination law to advance human rights for people with disabilities.

I want to discuss those themes a little further today.

This is not because I think that discrimination law is the answer to everything or to all the issues you will be discussing.

But it does offer important opportunities to change systems and the social contexts in which people with disabilities live, in the course of your work for and with individual people with disabilities.

Of course this intersection between individual and systemic advocacy is relevant to many areas of work whether or not they are directly covered by discrimination law. I hope that what I have to say may contribute to your discussions throughout the conference.

But unashamedly I want to use this opportunity to ask you to think about ways that more use could be made of the Disability Discrimination Act and equivalent provisions in State laws.

Events since the International Year

The history of disability discrimination laws in Australia goes back to the International Year for people with disabilities in 1981.

In response to community activism around the themes of the International Year, those States which already had anti-discrimination legislation, covering grounds such as race and sex discrimination, began to add coverage of disability discrimination.

These were important symbolic statements, even if for a long while they remained little more than symbolic.

1981 also saw the passage of the federal Human Rights Commission Act. The new Commission's jurisdiction was defined by reference to a number of international instruments - including the international Declaration on the Rights of Disabled Persons and the Declaration on the Rights of Mentally Retarded Persons. That was an important start at the federal level, even though very little legal power went with it.

Unmet needs

Disability Services Acts were also passed later in the 1980s. These 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.

What they did not do was to create any enforceable right for people who require support, assistance or other services to receive it.

We are all aware that in 2002 there is substantial unmet need for disability services, support and assistance - in areas including personal assistance and care, respite support for family carers, accommodation, interpreting services, education aides, and access to assistive technology.

As a result of this, we are still very far from having full and equal enjoyment of all human rights assured for people with disabilities in Australia.

Participation in employment and education, and opportunities in many other areas of life, are still being unnecessarily limited. And families and carers are still having to cope without adequate support in many cases.

At the Inclusion International conference I tried to highlight the point that in Australia this is not really a matter of us not having sufficient resources as a society. It is a matter of whether social participation or even a barely decent life for people with disabilities and their families is a priority for us as a society or not.

But it is also important to remind ourselves of how much has been achieved by people with disabilities and their advocates in recent years, in particular since the International Year of Disabled Persons.

The picture is not all bad. In many ways there has been a huge amount of progress over the last 20 years.

Much of that has come from thousands off instances of individual advocacy and activism.

Some of it has come from changes in social attitudes.

In turn some of that has been influenced by legislation including the Disability Discrimination Act.

The Disability Discrimination Act

The Disability Discrimination Act was passed in 1992 and came into effect in March 1993.

Its objects were

  • to eliminate, as far as possible, disability discrimination in various areas of life;
  • to ensure, as far as practicable, that people with disabilities have the same rights to equality before the law as the rest of the community; and
  • to promote the recognition and acceptance within the community of the principle that people with disabilities have the same fundamental rights as the rest of the community.

Disability is broadly defined in the legislation to include physical, intellectual, sensory, neurological and psychiatric disabilities.

People like relatives, friends, and carers are also protected if they are discriminated against because of association with someone with a disability.

Discrimination is unlawful in education, employment, public transportation, sport, clubs and associations, accommodation, finance and banking, insurance and superannuation, access to premises and to goods, services and facilities, and in Commonwealth laws and programs.

Harassment on the basis of disability is specifically made unlawful in employment, education and the provision of goods and services.

The legislation covers both direct and indirect discrimination.

Direct discrimination happens when people with a disability are treated less favourably than people without the disability are treated or would be treated.

For example, we had a complaint under the DDA from a young woman with an intellectual disability who had been refused membership of a video hire store. The store appeared to have believed that because of her disability she would not be able to be responsible in returning videos. That complaint was settled with an apology and payment of compensation.

The Act also covers indirect discrimination, where people with a disability are not singled out for less favourable treatment but where a one size fits all rule or situation actually excludes or disadvantages people with disabilities.

So for example a building with entrance only by steps indirectly discriminates against people who us wheelchairs or have other mobility impairments.

Areas of achievement

Hundreds of complaints about this sort of situation have been resolved under the DDA. On a national scale we are close to finishing negotiations for upgrading of the access provisions of the Building Code and for these provisions to be recognised in a standard under the DDA so that accessible design will be more of a matter of routine than it is now.

Similarly you may have noticed an increasing proportion of railway stations, buses and even trams becoming accessible, here in Victoria and across Australia, in particular for people with mobility disabilities. In part that has been a result of complaints under the DDA and equivalent State and Territory laws, as well as a cooperative response from most of the transport industry through development of action plans and national standards to guide the change towards accessible systems.

Another example of indirect discrimination would be if a phone service provider only provides handsets for voice communication and not TTYs- telephone typewriters - or equivalent devices to enable text communication for people who are deaf or have speech impairments. One of the most significant cases under the DDA , Scott v Telstra, was about this situation.

This case led not only to Telstra expanding the services it provides for people with disabilities but also to disability access requirements being put into the Telecommunications Act to apply to all phone service providers, at least in relation to the standard telephone service.

Importance of complaints

You will see that I have been emphasising complaints as a means for achieving large scale changes, or at least for starting off other processes which lead to change.

It may seem unfair that it is up to people on the wrong end of discrimination to do something about it.

I understand the perception of many people in the community that once the law is there it should just be complied with.

But not many laws are like that - otherwise we would not need traffic police and speed cameras for example. Not many laws actually just implement themselves by being passed.

Alright then, but isn't it the Human Rights Commission's job, my job, to see that the DDA is enforced and implemented?

Certainly we have a role in promoting awareness of and compliance with the legislation.

This includes

  • negotiating standards for improving access and equality
  • conducting public inquiries on systemic issues like wheelchair accessible taxis and television and cinema captioning;
  • encouraging business and government organisations to be proactive in removing discrimination, for example by developing their own disability action plans.

But still, the ability of the Commission to initiate or achieve change by itself is very limited.

I have three and a half staff for all disability policy issues across Australia and my own role as Disability Discrimination Commissioner is an acting position on top of my role as Human Rights Commissioner.

I do not have power to initiate complaints or legal proceedings under the legislation myself, although a "self start" power of this kind was originally included in the DDA when it was passed.

Small numbers

We do receive hundreds of complaints each year under the DDA.

But very few of these are made by or on behalf of people with intellectual disabilities.

In the year from July 2001 to June 2002, only 17 of 452 complaints under the Disability Discrimination Act involved intellectual disability.

The picture is much the same for the whole time since the Act came into force in 1993. Over that period the numbers are just 219 complaints involving intellectual disability, out of a total of 5397 complaints made.

Success stories

Even with these small numbers there have been some success stories. The Commission's web site features some of these.

For the tenth anniversary of the entry into force of the DDA next year I am planning to publish more stories of achievements so far, through the complaint process and other processes.

Here are a few stories that show that it is possible to get results through complaint processes:

School enrolment secured

A mother complained that after the family moved to a rural centre, she had been unsuccessfully seeking for two months to have her son, who has a number of disabilities including autism and an intellectual disability, enrolled in a local school. Within two days of the Commission contacting the student services team of the relevant education authority, an enrolment in a special education class within a local school had been secured on a trial basis, and the complaint was withdrawn when the trial was successful to the satisfaction of all parties (2000).

Responding to bullying

A mother complained that her son who has an autistic disorder had been discriminated against when he was suspended from school. She said her son was constantly bullied at school and reacted to bullying by being aggressive, and that the school had taken action only against her son and not the bullies. After a conciliation conference and further negotiations an agreement was reached for the boy to return to school with the support of an intervention plan, additional teacher aide time and individual education program, as well as for review of the school's suspension policy and strategies for dealing with bullying. (2001)

Education aide funding

The mother of a child with Downs Syndrome complained that her daughter had been discriminated against by a State educational authority providing education aide funding for only part of the school day. Her daughter has behavioural problems requiring supervision including running away.
Following the Commission's inquiry into this matter, the education authority advised that it had increased the level of funding for support services for the child such that the mother would no longer need to fund part of the aide's time herself. (2001)

Employment practices of Commonwealth contracted agency reviewed

A father complained on behalf of his son, who has an intellectual disability, that he had been refused employment by a recruitment agency providing staff to a Commonwealth Government Department because he needed an additional hour's instruction at the commencement of work although he would be able to work at the contracted rate thereafter. The Department agreed to review its diversity policy and ensure that all contractors were aware of their obligations under that policy (2000).

Barriers to using the legislation?

The fact remains though that far less has been achieved for people with intellectual disabilities using the Disability Discrimination Act than has been achieved for people with physical and sensory disabilities. That in turn is partly because the Act has been used less for or by people with intellectual disabilities.
In giving these examples of success stories I am not pretending that complaints always have a successful outcome.

I know too that even a successful complaint can be stressful.

I would very much welcome feedback on what other barriers may be holding people back from more effective use of available legal mechanisms, particularly discrimination law, to advance the rights of people with intellectual disabilities.

It does not cost anything to lodge a complaint. The issue of costs only arises if a complaint cannot be resolved by the Commission's conciliation process and the complainant decides to pursue the matter in court. It is always possible though to decide to withdraw a complaint before it gets to that point if you are worried about costs.

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 requirement can ask Human Rights and Equal Opportunity Commission staff to help. Complaints can now also be made by email.

The complaint should say what happened, when, where, who was involved, and give the names of anyone else who can say what happened.

The Commission can also assist complainants to find other supports they might need, like an interpreter or advocate. In particular there is a network of disability discrimination legal services funded by the federal government. These services have not been used in relation to intellectual disability issues as much as they could be.

Conclusion

I hope you will forgive me for focussing entirely on discrimination issues when, as can be seen from the conference program, there are many other areas affecting the human rights of people with disabilities to discuss.

But I think that use of the DDA does deserve more priority in discussions related to intellectual disability. I would like to promote discussion about

how can we see more complaints made, particularly complaints which are designed to have the largest possible some strategic impact; and
how we can make it easier for the community to use the power of the legislation.

Those are the questions I want to leave you with today.

I am asking for your involvement in ensuring that we use the tools that we already have as effectively as possible to advance the human rights of people with disabilities in Australia.

May I close by also wishing you success in all aspects of your discussions at this conference

Thank you.


Address

Australia