Disability and human rights
|Dr Sev Ozdowski OAM,
Human Rights Commissioner and Acting Disability Discrimination Commissioner
Thursday 14 November
Allow me to commence by acknowledging the traditional custodians of the
land on which we meet, the Wallumattagal clan of the Eora peoples.
Let me also acknowledge my fellow speakers, as well as other distinguished guests and friends.
I have to admit that when I saw the list of speakers for this session, I thought there was some danger that you might end up hearing pretty much the same ground covered at least twice.
Like Neville Roach, I worked for many years on multicultural affairs
issues, before my appointment as Human Rights Commissioner. Back in 1995
I was the author of the Commonwealth Access and Equity Evaluation report.
I still have a very strong interest in recognition and respect for Australia's cultural and linguistic diversity. This is a matter of making the most of our resources as a nation, as well as being a matter of human rights. But I will not go over those issues further today.
And of course, Chris Sidoti who will be speaking after me today was Human Rights Commissioner before me. I know that during his term as Commissioner and since, he has been much engaged with issues concerning refugees and asylum seekers and also issues of children's rights. These issues are also a major priority for me as Human Rights Commissioner. You may be aware that I am currently conducting a national inquiry regarding children in immigration detention. But I have not yet provided the report of that inquiry to government and parliament, and so I do not think I should say too much on refugee issues today.
So you are safe from hearing similar speeches on this subject this morning after all.
Translation of international human rights into national protection
Alongside the children in detention inquiry, another major focus for my work at present is on promoting a National Human Rights Dialogue.
I would like to see a renewal of debate about the possibility of a Bill of Rights for Australia, which could translate the major international human rights standards into a form that has meaning and effect here in Australia. I think we need more public and political debate about the human rights we value as a nation and as individuals and about what we might do to ensure that these rights are sufficiently protected.
I also think that international human rights law and mechanisms are important and need further development. In particular I welcome the current consideration within the United Nations of developing a Convention, a binding treaty, specifically on human rights and disability.
Human rights in practice
But I do not want to spend most of my time today talking about the principles
of human rights as embodied in international conventions or constitutions.Let
me quote from a speech Chris Sidoti gave some years ago, when like me
he was also Acting Disability Discrimination Commissioner:
"Human rights do not have their main significance in the words set out in declarations and conventions, or in legal or diplomatic or academic interpretation and construction of those words. The important thing is whether human rights - the freedom and equality which all the pages of conventions and declarations seek to describe - are a reality in the daily lives of a nation's people."
I want to concentrate on some practical aspects of human rights today, dealing in particular with equality and access for people with disabilities.
Australian commitment in principle
Australians do have a strong core national value of basic justice, equality and fairness, expressed vividly in the 'fair go' ideal.
I do not mean that we can congratulate ourselves that in this country exclusion of people by race or religion or gender is a thing of the past in practice. But as a society we have rejected discrimination in principle.
Very few people would now argue that women should not have the right to choose to be in the paid workforce; or for example that women should still be required to resign from the federal public service when they marry, as was the case into the 1960s.
Despite concerns, which I share, about a reappearance of expressions of racial and religious intolerance in recent years, I think there is still broad community acceptance that we are a culturally and racially diverse society.
Law and community attitudes
It is clear that laws against discrimination have been an important part
of the changes in Australian society over the last few decades.
Even if we do not have constitutional guarantees of equality and human rights like the United States or Canada or New Zealand or now the United Kingdom, we do have substantial national legislation against discrimination.
(That legislation is not comprehensive at the national level. For example it does not yet cover age discrimination or discrimination based on sexuality - although national age discrimination legislation is now being considered. )
We have had racial discrimination legislation since 1975 and sex discrimination legislation since 1984.
Disability discrimination legislation
Since 1993 we have also had national legislation against disability discrimination. (I should acknowledge that in some parts of Australia there was State legislation against disability discrimination some years earlier. )
The Disability Discrimination Act was passed in October 1992 and came into force in March 1993.
So what impact has the Disability Discrimination Act had so far?
Perhaps it is like what Chou En Lai is reported to have said when he was asked in the 1970s about the impact of the French Revolution: "It's too soon to tell".
But I think it is clear that, as with race and sex discrimination, we have seen some major shifts in social and institutional attitudes about disability.
I think it is becoming more broadly accepted that people with disabilities are inherently members of the Australian community rather than a separate group to be pitied, segregated or ignored. Segregated life is no longer thought of by most people as the best and inevitable thing for everyone who happens to have a disability - although not all of the resources to make community living a success for as many people as possible have followed this change in attitudes.
These changes in attitudes are hugely important. Time and again voices from the disability community remind us that attitudinal barriers can block access and opportunity just as effectively as physical barriers can.
Paradoxically, though, I think that the Disability Discrimination Act has had a bigger impact because we have not tried to change community attitudes head on. The Commission has not spent most of its money on advertising campaigns attempting to change attitudes, or lecturing people about what to think or say.
Australians do not seem to take very well to that sort of thing anyway.
What we have tried to do more directly is to make a difference to things that affect the ability of people with disabilities to participate in major parts of the life of our society.
There often seems to be a big impact on attitudes and awareness once other members of the community experience people with disabilities participating alongside them in mainstream activities - education, employment, and just the basic activities of using transport and buildings and so on .
Access to public transport
One of the big changes which I take particular pleasure in, in part because the Human Rights and Equal Opportunity Commission has contributed directly to it, has been that public transport systems now accept that people with disabilities are part of the "public" that they should serve.
This is a very big change from ten years ago, when many public transport systems either ignored disability or argued that it should be dealt with by someone else.
The new railway planned to serve this area where we are meeting, including Macquarie University, will certainly include accessible station facilities, just as part of the ordinary planning process. Compare that with the construction of a station to serve Newcastle University, as recently as the mid 1990s, which only included disability access because a complaint was made under the Disability Discrimination Act.
That complaint and a few others persuaded ministers for transport around Australia that disability issues had to be built into the ordinary way of doing things - rather than coming as an expensive surprise.
Standards for accessible public transport under the Disability Discrimination Act were formally approved by the parliament last month. But since 1996 when transport ministers approved the standards in principle, they have already been guiding large scale changes in practice by many transport providers across Australia, including large investments in new vehicles and infrastructure.
Another area of change is in the design of the built environment.
Physical access continues to be a constant barrier for people with disabilities.But increasingly, there is recognition of the need for universal access.
Some of that change has been because of a general change in social attitudes and awareness.
Some of it has been the result of tireless campaigning by people with
disabilities across the country, through local access committees and through
use of complaint processes. 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.
But to make a really 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 thousands or even hundreds of thousands.
And just as with public transport, building access will be more readily achieved if people have certainty about what is required.
I know that this uncertainty has been a major issue for local government particularly since the Coffs Harbour case (Cooper v HREOC) back in 1999, and even before that the Queensland Convention Centre (Cocks v Qld) case in the early 1990s - which decided that compliance with the Building Code would not always be sufficient for compliance with discrimination law.
So the greatest impact of disability discrimination complaints about access to premises has been in providing the impetus for upgrading the access provisions of the Building Code of Australia by the Australian Building Codes Board.
The aim is that a standard under the DDA will make clear that compliance with an upgraded Building Code is sufficient for compliance with the DDA.
This has been a very long running process, but a draft standard under the Disability Discrimination Act should be available for consultation early in 2003. (The Australian Local Government Association has been participating in this process and ensuring that local government perspectives are represented.)
Local government has vital roles
Once we have this Standard in place local government will have a vital role in making it work by ensuring all new buildings and new building work meets the required level of access.
To repeat a point I made earlier, equality for people with disabilities in particular is not only a matter of words in international declarations or national legislation, but a very practical matter of what happens on the ground.
Whether the built environment is constructed so that someone with a disability can actually get through a door, or across a street, or not, depends largely on the unglamorous business of local systems of approval and inspection and certification.
On other issues too, such as accessible transport, local government has a critical role. It can facilitate construction of accessible stations, bus and tram stops and so on, and their linkage with other community facilities.
Or it can frustrate this work with lengthy approval processes and dubious heritage objections.
I am pleased to say that we have not seen much evidence of local government explicitly pandering to prejudice against people with disabilities, since the early 1990s when the City of Perth found itself in the High Court after it refused permission for a centre for HIV positive people.
But it is not only overt prejudice that can exclude people with disabilities.
In my view there is simply no excuse for seeking to maintain a public facility like a post office or a railway station in its "heritage" condition if that means keeping it as a working museum of a society that once accepted the exclusion of people with disabilities from mainstream life.
Any authority considering imposing such a result needs to consider its potential liability under the DDA for causing discrimination.
Local action plans
Overwhelmingly, though, the response of local government across Australia to the DDA has been positive.
In particular the take up of the voluntary Disability Action Plan concept by local government bodies around Australia has been one of the success stories of the Disability Discrimination Act.
Local government at its best has the advantage of closeness to the community, and can perhaps see from closer up the real diversity of the Australian people.
In most cases local government action plans have involved extensive local consultation, and have been notable for recognition of the breadth of roles which local government has in creating accessible and inclusive communities:
- in ensuring accessibility of its own services and facilities;
- in playing a local leadership role in increasing awareness and acceptance of the needs of residents and visitors with disabilities;
- in its role in regulating building and development; and
- as provider or facilitator of services targeted to people with disabilities to enhance social participation.
Some local governments and communities have taken the opportunity to go beyond the strict legal requirements of the DDA to explore issues like ensuring that at least a proportion of private housing is built to be adaptable to the needs of people with disabilities.
This will be an increasingly important issue as our population ages. To state the obvious, all of us are increasingly likely to have one or significant disabilities - in mobility, hearing, vision and so on - as we get older.
An example of a particularly commendable initiative is the work of the Municipal Association of Victoria which, with the support of the Victorian Government Department of Human Services, has been running an 'Accessible Communities' project. This project, among other things, has been encouraging and supporting local governments throughout Victoria to develop and implement Action Plans.
As a consequence around 60% of Victorian local governments currently have an Action Plan and by 2003 it is expected that over 85% will have developed one. The Commission is looking forward to participating in the Victorian Local Government Accessible Communities Awards later this month at which this achievement will be recognised.
Conclusion: request for information on achievements
I would be very glad to hear of similar initiatives and achievements in other areas that I may not be aware of.
As you may have seen from the Commission's web site recently I announced
that for the tenth anniversary of the Disability Discrimination Act, I
will be releasing a publication on achievements so far, and for that purpose
I asked people to contribute views and information on where we have got
to so far.
I am particularly interested in information on achievements and processes at the local level, which a small national Commission just will not know about in many cases unless people tell us.
Multiple instances of change locally may add up to very substantial changes nationally.
Changes which provide access and opportunity where people actually live and work are in the end the point of the international declarations and federal legislative and administrative structures.
I look forward to continuing to work together towards communities where people including people with disabilities live in freedom and equality - communities without prejudice.