Tuesday 2 August 2011


Graeme Innes AM, Disability Discrimination Commissioner

Accessible procurement and promotion of equality in employment

or: It's the same old song but with a different meaning now that policy's moved on

Presentation to Department of Finance and Deregulation staff
Graeme Innes
Canberra, 2 August 2011

I begin by acknowledging the traditional owners of the land on which we meet.

I really welcome the opportunity to speak today with friends and colleagues at the Department of Finance and Deregulation.

The Australian Human Rights Commission Act tells us that the Commission's functions should be performed "efficiently and with the greatest possible benefit to the people of Australia". That is also a good summary of the goals of the Department of Finance, in public expenditure, public administration and policy and regulation.

That provision in the Australian Human Rights Commission Act emerged from a joint review conducted by the Commission, the Attorney-General's Department and Finance in the 1990s. 20 years on, the Attorney-General's Department and the Department of Finance are conducting a joint review of federal discrimination laws through a Better Regulation Ministerial Partnership. This is one of the key elements of the Human Rights Framework, which the government announced last year.

In launching the discrimination law review project, the Ministers emphasised the twin goals of improved effectiveness and improved efficiency in pursuing better regulation. They emphasised the need for anti-discrimination legislation to be:

  • more effective in removing barriers to greater inclusion and participation in society; and
  • more efficient, through clearer legislation, reducing compliance costs and regulatory burden.

The Department of Finance obviously has a critical and welcome contribution to make to the success of this current project in pursuing these twin aims of efficiency and effectiveness, and linking micro and macro-economic and social goals in the equality area. I'll talk more about those goals in a minute.

Before that, another of the elements of the Human Rights Framework is the development of a new National Human Rights Action Plan. Human rights action plans are a concept which Australia originated back in the 1990s, to try to move human rights beyond a world of finger pointing and self-justification, and towards more grown up public policy approaches. They involve setting objectives and strategies for progress over time, and accountability for results.

The Attorney-General's department currently has a draft Baseline Study on the state of human rights in Australia out for comment. I'm not sure what level of involvement Finance has had in this process, but the more involvement we could have from you as the experts in accountability, the better.

One of the people involved in the 1990s review of the Commission was a young Finance officer named Jane Halton, who of course is now Secretary of the Department of Health and Ageing. So associating with the Human Rights Commission is not necessarily a bad career move.

Amongst the people here, and in this Department, I and the Australian Human Rights Commission have had a particularly productive relationship with colleagues in the Australian Government Information Management Office (AGIMO), as we work to promote greater accessibility of government information and information systems. I hope I'm not damaging the prospects for Jacqui and her small, but very capable, accessibility team in saying that. AGIMO is working, even if with quite modest resources, to provide leadership within the Commonwealth, within State and Territory Government networks, and outwards to business and the Australian community.

It’s timely for us to look at how we can broaden the relationships between the work of the Commission and the work of Finance, in particular in relation to opportunity and participation for people with disability.

In the context of the National Disability Strategy, which was adopted by the Council of Australian Governments (COAG) earlier this year, the sort of leadership role being played by AGIMO is one which should be provided across quite a number of other areas of government, including within Finance itself.

In the National Disability Strategy, the Prime Minister, Premiers and Chief Ministers declared, on behalf of all areas and levels of government, a shared vision for an inclusive Australian society that enables people with disability to fulfil their potential as equal citizens. The Strategy highlights economic, social and human rights imperatives for the achievement of this vision.

The economic imperatives are only just being picked up in public discourse. Too often, and for too long, people with disability have been either simply overlooked and excluded, or regarded as objects of pity or charity, instead of being sufficiently recognised as people with contributions to make. Within government, though, we have been seeing a different story emerging, with people with disability in Australia at last being recognised as an under-utilised source of economic and social potential.

I pay particular tribute in this respect to one of your portfolio Ministers, the Assistant Treasurer Bill Shorten. Bill has highlighted disability as "the last frontier of practical civil rights" and also as a major economic issue. The work of the Disability Investment Group, which he commissioned, has led to the Productivity Commission inquiry on a National Disability Insurance Scheme, which delivered its final report to government just this week. I acknowledge and welcome the degree of bipartisan support so far in this area, from non-government parties and independents at the Commonwealth level, and from State and Territory leaders across the political spectrum. A National Disability Insurance Scheme could play a huge and transformative role in enabling full and equal economic and social participation by people with disability and their families. Within the multi-billion dollar disability services sector, there's also the potential for gains in efficiency and effectiveness, through unleashing the power of consumer choice in more competitive markets than we've had in that sector to date.

The Government's response is being led by FAHCSIA, but I'm sure Finance and Treasury will have critical contributions to make, including in examining how a scheme with vast long term economic, as well as social, benefits can be financed within an environment of what we hope to be relatively short term fiscal constraints.

This same recognition of disability as a serious economic issue is contained in the National Disability Strategy, which includes the following:

The 2010 Intergenerational Report has highlighted that population ageing will put significant pressures on the economy. As the workforce becomes a smaller proportion of Australian society, harnessing the potential of the working age population will become increasingly important. This applies equally to people with disability, who would be able to take up job opportunities with appropriate support.

The Strategy is part of a prudent response to one of the most pressing challenges which faces Australia over the next forty years.

I was immensely encouraged to read words like that in a strategy now adopted at COAG level. But in some ways it was even more encouraging to see the same views presented in the incoming government briefs from Treasury and from Finance.

Social policy advocates within and outside of government are quite rightly seeking to link social policy agendas to major economic agendas. But in relation to opportunity and participation for people with disability, this linkage is not just a matter of "they would say that wouldn't they" from the social policy areas. Rather, it's a linkage also made in the highest level advice from the government's professional economic advisers.

Treasury's overview paper, setting out priorities for an incoming government, repeatedly stresses issues of equity and participation as a means of enhancing economic performance and potential, particularly in the context of a near full employment economy. Like the National Disability Strategy, Treasury's incoming government brief also emphasises the need for policy measures to address the long term impact on the Budget of changing demographics over the next 40 years, as highlighted in the 2010 Intergenerational Report, and that:

Participation and, most particularly, productivity enhancing policies are key to ameliorating the economic impacts of ageing.

Similarly, the Department of Finance's own incoming government brief noted that agendas to enhance productivity and participation were among the key economic challenges, and that as well as improving economic growth and social cohesion, higher participation rates have the potential to assist in addressing social disadvantage by providing stronger links to the labour force.

Measures to enhance workforce participation and productivity during people's period of working life clearly need to include enhancing productivity and participation for people with disabilities, and people with family or carer responsibilities.

The review of federal discrimination law for increased effectiveness in achieving its objects is highly relevant to this agenda - not only in addressing equality in employment itself, but also in areas that contribute to effective participation in employment, and to formation and maintenance of skills and capabilities. In launching the Intergenerational Report, the Treasurer emphasized the importance of the Racial Discrimination and Sex Discrimination Acts, among an earlier generation of economic reforms. The Productivity Commission has made the same point about the Disability Discrimination Act.

The comments in Treasury's advice highlighted above, as well as Finance's own advice, should encourage us to apply a macro, as well as a micro-lens, and pursue reforms which make discrimination law more effective in promoting more equal participation and opportunity, rather than concentrating solely on achieving greater efficiency and reducing regulatory burdens. As far as possible, of course, we would hope to see the goals of efficiency and effectiveness promoted together. Legislation which is clearer, and thus easier to understand and comply with, is an obvious example. But there may be some specific instances where some degree of apparent increase in regulatory burden for some institutions, through enhanced compliance measures, is justified on broader economic policy grounds. This is pretty much the case, as I understand it, for carbon pricing, for example.

Of course, governments don't only seek to influence what happens in society by passing laws and regulations. There are a host of other policy interventions which departments and agencies will be called upon to develop, and implement, as the National Disability Strategy rolls out, and as we pursue the goal of more equal economic and social participation for people with disability. I have publicly expressed strong support for the direction of current reforms around the disability support pension, designed to encourage and assist greater employment participation. That support, of course, is predicated on government and business doing all they can to ensure that people with disability who seek to participate and contribute economically do get the opportunity to do so.

The reality in recent years, however, has been that in its own employment practice the Australian Government has been leading in the wrong direction. Within the federal public service itself, the proportion of people with disability is even lower now than it was 20 years ago.

For those of you who haven't had time to catch up on your reading of Senate Estimates transcripts, let me quote myself at the most recent hearings:

I do think 'massive fail' is the absolutely correct expression. The efforts of the Public Service in this area have been, and I have described them this way before, shameful. The government cannot go out and try to sell employment of people with disability to the private sector, if they are not performing in that area themselves.

I went on to acknowledge that your former Secretary and present Public Service Commissioner, Steven Sedgwick, is clearly committed to improving performance in this area. I have been discussing a range of ideas with the Public Service Commissioner, based on my own small agency's experience, and our work on the national inquiry we conducted on employment and disability in 2004.

In particular, as I noted at Estimates, I have been encouraging all governments to follow the lead of the ACT government in setting targets for disability recruitment. I have been opposed to quotas for employment of people with disabilities for most of my life, but I have come to the view that we are so far behind on employment of people with disability that the only way to redress the balance is to set some quotas or targets.

Obviously, questions will be raised about how this approach fits with the merit principle. We do need to ask, though - merit defined how, and merit to do what?

The public service exists to serve the needs of a diverse community. It has become more widely accepted in recent years that diversity within the APS brings with it an important set of capabilities. Having the benefit of the skills and perspectives of women, or people from culturally and linguistically diverse backgrounds, or Aboriginal and Torres Strait Islander peoples. The same is true of disability. Not only in terms of the APS not missing out on people with disability who have general skills, but often some particular capabilities and additional insights to bring to tasks of policy development and implementation.

Let me give an example very close to home. My own presence in a leadership role within the Australian Human Rights Commission has contributed very directly to the Commission having not only a policy role on information accessibility, but a fair degree of practical competence in the area, which we have sought to share with the rest of government and the wider community. And it has meant that we moved earlier to adopt electronic publication as our principal medium, with consequent savings in printing, storing and ultimately disposing of mountains of paper reports.

Incidentally, it also meant that when the Commission moved offices last month, the disability team had far less paper to move and store per person than any other area. I haven't argued yet that we should apply some sort of internal efficiency dividend, but perhaps you might assist me with that argument.

In talking about targets for disability employment, one size may not fit all across the APS. Individual government departments and agencies may need to set their own quotas and targets, and then develop processes to achieve those targets.

Another approach might be to set a single target, and then adjust the efficiency dividend upwards for those organisations not meeting the target, and down for those organisations exceeding it. In effect, this could be close to having an internal market within the APS for "equality credits". There might also be credits for those who show they are making a significant contribution to equality outcomes for other agencies. My own Commission, the APSC, and Finance itself, might want to apply for credits there.

The director of my policy team tells me that Coase's theorem assures us that in such a scheme agencies would then trade to achieve the most efficient outcome, regardless of initial allocations of who starts with the most and the least employees with disability.

I met with a group of secretaries and deputy secretaries a few months back, and the issue of targets and/or quotas was discussed in some detail, although without the refinement of the "Equality Trading Scheme".

Different views were expressed as to viability. But the government simply cannot sell employment of people with disability to the private sector if it is not performing itself.

People with a disability are not getting jobs, and discrimination is continuing, despite:

  • people with disability wanting to work (many of whom are highly qualified);
  • employers professing a willingness to employ people with disability; and
  • processes supposedly in place to achieve this aim; including
  • all of us who are public sector managers having items in our duty statements about ability to implement equal employment opportunity.

I've been using a few real life stories to highlight this situation.

  • The first is of a woman with a significant disability, who recently graduated with the university medal in law. She couldn't even get an interview in the public service, let alone a job.
  • The second is about a computer programmer with Asperger's Syndrome. He is a great programmer but a poor communicator. He can't get a job because he fails at interviews every time. But how many interviews do computer programmers do during their day-to-day job? Dare I suggest, the same might even be true for many jobs involving expertise in economics and financial management? Why test someone on something he or she will never have to do again?
  • The third story is my own experience -- I completed 30 interviews with law firms in my first year after graduating with a law degree. I didn't get any of those jobs. I was finally employed as a clerical assistant - the lowest level administration position in the NSW public service. I was the only clerical assistant with a law degree. My job was answering the phone, and telling people the winning lotto numbers. I was made redundant from that job by an answering machine.

I use these examples to highlight that we shouldn't just be thinking of people with disability as candidates for APS1 positions, but at all levels. Disability representation has declined at all levels over the last 20 years - the dismal statistical results are not explained simply by a disappearance of lower level positions.

And this has come in a period where technological developments ought to have been expected to be reducing, or eliminating, many barriers to equally effective participation by people with disability.

To take my own example again: When I was at university I was only able to perform thanks to a substantial amount of assistance from volunteers translating printed materials into braille and audio form. I just don't need that assistance any more. The form in which a person needs, or chooses, to interact with information - print, braille or audio - has become almost irrelevant in my own work, thanks to effective use of information and communications technologies. And yet, in Australia we still see immensely high unemployment and under-employment rates for people who are blind or have vision impairments.

I'm often asked why we see poor employment outcomes, even for people with disability who have high level educational and professional qualifications. My usual answer is that it comes down in the end to attitudes and expectations. That's why it’s so important for the public sector to show leadership within society, and why it's important for the leadership of the public service to show leadership on this issue. I expect that, like me, you would regard the Department of Finance as a whole as occupying a leadership position within government, by virtue of your distinctive expertise and mission.

One dimension of that leadership can be exercised on issues of accessible procurement. Where equipment, or systems, or facilities which are intended for use by service or program clients, or by public servants, aren't designed to be accessible, that reflects and reinforces a tacit decision that people with disability aren't part of the community served by the program, or aren't part of the workforce. In fact, of course, people with disability are inherently part of the community, and should be recognised as part of the workforce. So whether public procurement is for provision of services to the public or to support the work of public sector employees, equipment, or premises, or facilities, which are not accessible to, or usable by, people with disability are not fit for purpose, to put it in consumer affairs terms. Or, in terms more familiar in a procurement environment, failure to address accessibility issues in public procurement involves failure to secure value for public money.

I say that because it has been demonstrated over and over that it will avoid difficulty, delay and additional expense, if premises, equipment and facilities are designed to meet "universal design" principles, to accommodate the widest possible range of human needs, rather than having to make adjustments in work premises, facilities and equipment after the event, when an existing employee acquires a disability or a jobseeker or a client with a disability arrives. Or for that matter, after an unhappy Minister or Secretary calls the agency following unfavourable media publicity or a disability discrimination complaint.

Promoting universal design principles in procurement is one of the areas for action specifically identified in the Convention on the Rights of Persons with Disabilities, and now in the National Disability Strategy. The Commission has been promoting action on this issue for a while now. The report of the National Inquiry on Employment and Disability, which the Commission released over five years ago, contains a whole chapter on these issues. I won't go through it in detail now. I urge you to look at it. It is on the Commission's website. In summary, we recommended that the Federal Government follow the lead of the United States government and adopt a mandatory accessible procurement policy, including specifying performance criteria for what accessibility means; and also establish an information resource on accessible procurement comparable to the Canadian government's Accessible Procurement Toolkit.

The evidence from the US is that governments doing this will have a significant impact, as industry responds to clear market signals from a major purchaser. Relevant industry sectors in the United States do not have significant concerns about the mandatory accessible procurement policy which applies specifically to information and communications technology. For example, the US Telecommunications Industry and Association, and the Electronic Industries Foundation, have advised that:

  • accessible design can be implemented with only minor changes to a design or manufacturing process
  • improving accessibility does not necessarily increase development time and cost
  • the cost of accessible design is minor compared to the benefits gained.

Similarly, the US Information Technology Industry Council, in evidence to the Senate Foreign Relations Committee regarding European adoption of equivalent requirements to those under section 508 of the US Rehabilitation Act, stated:

We believe that Section 508 is a comprehensive and meaningful framework to support the industry's work in this area. We and our industry colleagues, applaud the U.S. Government's foresight in this issue.

In the Commission's employment inquiry report, we noted that the absence of government leadership here on accessible procurement risked Australian suppliers of ICT being left behind in international markets, where accessible procurement requirements were increasingly emerging.

I admit feeling some hesitation in quoting to you recommendations which were made over five years ago, both on accessible procurement, and on promotion of equality and opportunity in employment more generally. It feels a bit like being in a band doomed to keep playing greatest hits from years ago, rather than being able to move on to new material. But in fact, there is plenty of new material to cover now. And in pushing for leadership towards equality and inclusion for people with disability, I'm not appearing as a solo act, but as part of a line-up with some big names. To mention a few of the bands:

  • "Commissioner Sedgwick and the Renewed Commitments"
  • "Treasury, Finance and the economic imperatives"; and headlining,
  • "PM Gillard and the COAG 8", performing in full their concept album for whole of government, "A national disability strategy for Australia".

So, when I open the show with "Equality and the human rights dimensions", it's the same, same old song, but with a different meaning now that the policy context has moved on. To quote another old song, let's work together.

Thanks for the chance to speak with you today