Disability discrimination legislation in Australia from an international human rights perspective: History, achievements and prospects

Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner
Social Relations of Disability Network seminar,
University of NSW, 8 April 2002

This is the version for presentation. See also related background paper (MSWord)

Sev Ozdowski

Introduction

Allow me to commence by acknowledging the traditional custodians of the land on which we meet, the Eora peoples.

I want to talk today about the relationship between the lofty principles of international law on human rights and the practical realities for people with a disability in Australia.

As a more specific part of the human rights agenda, I want to talk about achievements and prospects in implementing the Disability Discrimination Act.

And I want to float some ideas for achieving more into the future.

Disability in international human rights law

International human rights law has not always adequately acknowledged people with a disability as part of what the "human" in human rights means.

No-one in this audience, I expect, needs reminding that disability is an inherent part of the human condition. In all parts of the world, and in all sections of the community, disability is another pervasive dimension of human diversity like gender, race and culture.

This is true even where there are not the additional causes of disability that exist in many places: because of war and the after effects of war, or because of poverty and poor health. Even in Australia, indigenous people often experience third world rates of disability - for example the epidemic of deafness among Aboriginal young people.

In the last two decades there has been increasing international attention to human rights for people with disabilities. But to date this has not resulted in a specific binding international treaty, as there is on racial discrimination, or discrimination against women, or the Convention on the Rights of the Child. (This last Convention does at least specifically recognise children with disabilities, something which Australian negotiators including my predecessor Brian Burdekin helped to achieve.)

Late last year consideration was revived in the United Nations of developing a Convention, a binding treaty, on discrimination against people with disabilities. One major set of issues to consider is whether a convention on disability should deal only with discrimination issues, or whether it should seek to cover human rights issues more broadly for people with disabilities. But potentially, such a treaty could have a major impact by increasing the level of accountability for achievement by nations and governments on disability rights issues.

I will be following this process closely and doing what I can to ensure that information on it is widely available, including through HREOC's web site.

The International Year and action in the 1980s

Let me go back, though, to earlier stages of the impact of international human rights developments on disability and human rights in Australia.

As in many other countries, the 1981 International Year for people with disabilities provided a pivotal point for community activism and government responses.

In the early 1980s those States which already had anti-discrimination legislation, covering grounds such as race and sex discrimination, added coverage of disability. Other later State and Territory discrimination laws followed suit.

I have to say, though, that the results of these laws since then have been fairly limited on disability issues, if we are looking not only for redress of individual grievances but for broad societal change.

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 Declaration on the Rights of Disabled Persons and the Declaration on the Rights of Mentally Retarded Persons.

This Act, and the Human Rights and Equal Opportunity Commission Act which followed in 1986, incorporated the rights listed in these Declarations into federal law - but only very indirectly and incompletely. These laws only applied to actions of the federal government, not to matters within State government administration or the private sector (except in the employment area). Also, they did not create any enforceable rights or duties - only a power for the Commission to investigate complaints, seek to resolve them by conciliation, and report to Parliament on matters that could not be resolved.

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 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, however, was to create any enforceable right for people who require support, assistance or other services to receive it.

There is considerable evidence in 2002 of continuing 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.

Towards national discrimination legislation

Many of the most pressing human rights and disability issues go well beyond the scope of discrimination laws.

But in the decade following the International Year, national legislation on disability discrimination was identified as a priority by NGO networks, by official disability advisory bodies and by the human rights commission itself.

The federal parliament lacks specific power to legislate regarding human rights, disability or discrimination. But it does have power over external affairs, which includes legislating to implement treaties and on matters of international concern.

In the development of the DDA, HREOC and others argued successfully that the general non discrimination provisions of the human rights Covenants, together with other evidence of international concern on human rights and disability, meant that the Australian parliament had power to pass broad ranging legislation on disability discrimination.

But even though existing human rights treaties - which in most cases fail to acknowledge disability expressly - can be stretched to cover most disability issues, they do not provide much specific guidance or accountability for achieving human rights for people with disabilities in practice.

The Standard Rules on disability

By the time that Australia's DDA was being developed, Standard Rules on the Equalization of Opportunities for Persons with Disabilities were progressing through the United Nations system, and these were adopted by the General Assembly late in 1993.
The Standard Rules cover issues of awareness-raising, medical care, rehabilitation, support services, income maintenance and social security, as well as discrimination and equal access issues in areas such as education, employment, and accessibility of buildings, communications and information.

Unlike the Declarations drafted in the 1970s, the Standard Rules go on to provide some guidance on the measures needed to achieve their objects. I do not have time to go through these provisions in detail here, but I do want to encourage renewed attention to what is in the Standard Rules.

Accountability, reporting and auditing

The Standard Rules do not have the same level of reporting and monitoring machinery that the formal human rights treaties have. However, there has been some modest international monitoring of their implementation, through reports from a United Nations Special Rapporteur and from governments.

As I have noted, one of the motivations for development of a binding international Convention or treaty on disability discrimination is to increase the level of accountability.

But the history of attempts to develop an international treaty on disability is already a long one, and the latest attempt is not guaranteed to succeed. So we need to ask, is it necessary to wait for a Convention to be developed, and ratified by Australia, before we can see improved public accountability for human rights outcomes for people with disabilities?

I do not think so.

Last December I met with disability peak organisations for a two day summit meeting. One of the major issues was monitoring of implementation of the Standard Rules. Participants at the summit discussed some of the difficulties in meaningful auditing or benchmarking of human rights outcomes. But there was agreement that at the least we need to have collected together more accessibly what information there is, on what is being achieved and what remains to be done.

Of course, there is the issue of how much time and resources to spend in describing the present reality in various ways - when the point, after all, is to change it.

But I do want publicly to commit HREOC to doing all that it can to increasing effective accountability for performance against the Standard Rules.

One obvious possibility is for HREOC to receive and publish regular NGO reports on its own web site and seek to achieve publicity for and responses to these. Depending on resources, there may be other roles we can also play. I will be consulting other organisations on these issues over the coming months. I am aware for example that People With Disabilities here in NSW has been doing some work on monitoring of the Standard Rules, which I look forward to discussing with them and others as we follow up from our summit meeting of last year.

The Disability Discrimination Act

I want to turn now from the broad canvas of human rights to the more specific issues covered by disability discrimination legislation. This is where the main focus of HREOC's disability rights work has been over the last decade - although we have also done some important work outside of the scope of the DDA, for example on sterilisation issues.

One reason for this focus is that the discrimination acts provide an enforceable legal foundation for rights. Outside the areas covered by these specific laws HREOC is limited to political and publicity approaches - inquiries, reports, submissions, press conferences and so on.

These approaches can also be made to be very effective.

But a major part of the purpose of the passage of the DDA was to provide people with disabilities with enforceable rights to deal with discrimination, assisted by a national human rights commission, rather than that commission being only able to issue reports which frankly might or might not ever be implemented.

Previous experience in Australia and internationally showed that open ended discrimination provisions alone, relying only on complaints by individuals with disabilities, would be ineffective in achieving broad progress towards equality.
So the legislation provides for a range of implementation mechanisms in addition to provision for complaints, including development of more detailed standards on what is required for non-discriminatory access.

Implementation and achievements

The record of achievements from 1993 on can be summed up as encouraging, but uneven and incomplete.

It is clear that we have done better at identifying and implementing broad strategic approaches on access issues -physical and communications access - than on other forms of discrimination.

Much of this has been achieved through linking the provision for complaints with other mechanisms and strategic approaches - standards development, temporary exemptions, and conduct of public inquiries in particular. Where there has been less success in linking complaints with other and broader strategic approaches, there is more question about how effective the Disability Discrimination Act has been in achieving its overall aims.

Employment discrimination

This applies regarding employment in particular.

National disability discrimination legislation was conceived largely as part of a strategy to improve employment participation for people with disabilities. There is not much evidence, however, that this strategy has succeeded. Such information as is available suggests that rates of unemployment, and underemployment, among people with disabilities remain much higher than for people without a disability.

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. However, most cases are resolved on an individual basis and have not contributed greatly to broad policy approaches by employers.

There is scope in the Disability Discrimination Act for development of standards on employment, and considerable time and effort has been spent in attempting to develop such standards. However, it has not been possible to reach agreement on standards to introduce.

We have had better success with some of the pieces that employment opportunity is made of: whether people can get to work, whether they can get into the building, whether they can use information and communications technologies and whether they can acquire skills and training needed for employment.

These are all long term strategies. Development by employers of more specific and immediate strategies to achieve equal employment opportunity is also needed. However, the Disability Discrimination Act does not contain any explicit requirement even for larger employers to develop, implement and report on positive strategies to achieve equal opportunity for people with disabilities.

Frankly, I would prefer to see employers applying for temporary exemptions under the legislation, in return for adoption of policies and programs to achieve greater equality of opportunity - rather than just doing nothing unless there is a complaint.
Even a crude measure such as an agreed quota for increasing representation of people with disabilities in the workplace (over a five year period for example) might possibly be more effective than more theoretically sophisticated discrimination laws and policies.

Just having people with disabilities actually in the workplace, demonstrating their own abilities and asserting their own requirements, is more likely to improve awareness of the needs and capabilities of people with disabilities than anything else.

Access to premises

In addition to being a barrier to employment, physical access continues to be a constant and pervasive barrier for people with disabilities in many aspects of their life.

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.

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 ability to negotiate standards has been crucial in engaging the mainstream building regulator in upgrading the access provisions of its own code - since in return we can offer the prospect of endorsement of that code as a standard for discrimination law purposes.

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. At that point, we hope that accessibility in new or redeveloped buildings will finally become a matter of routine (other than in the most exceptional cases).

Telecommunications

Access to telecommunications services and equipment is obviously another critical area, for access to employment, education, and social participation. Surprisingly limited use has been made of the legislation by the organised disability community in Australia in relation to telecommunications issues.

Despite this, the Disability Discrimination Act has had a major impact on telecommunications services in Australia. An individual complaint by Mr Scott, a deaf man who needed a telephone typewriter (TTY) rather than a standard handset, led not only to a settlement for TTYs to be provided to deaf or speech impaired people on the same terms as standard handsets for other consumers, but also to incorporation of disability access requirements into the Telecommunications Act definition of the standard telephone service for Australia.

This is still only a part of the full picture of equal access to telecommunications - but discussions are continuing between HREOC, industry, consumers and telecommunications regulators on improvement of accessibility across the full range of telecommunications services.

Some of these discussions have been assisted by complaints under the legislation. In particular, complaints regarding access to mobile phones for people who use hearing aids were investigated by a public and open process. This allowed people beyond the immediate parties to the complaint to contribute their perspectives. It also created a degree of public exposure for the issue. The process in this case led to each of the major service providers adopting schemes to improve access and consumer information.

We have applied the same approach successfully to cinema captioning and we are presently trying the same approach to television captioning.

Banking standards

Not all inquiries or all industry/consumer negotiations convened by HREOC have to flow directly from complaints under the Disability Discrimination Act.

In 1999-2000, at the request of the Attorney-General the Commission conducted a public inquiry on accessibility of electronic commerce and other new service and information technologies for people with disabilities as well as for older people.

Out of that inquiry, the Commission secured agreement by the Australian Bankers Association to voluntarily develop a series of industry accessibility standards, on internet banking, phone banking, EFTPOS facilities and automatic teller machines. Those standards, developed in consultation with community representatives, will be launched next week. The proof of course will be in their implementation, and I expect the community will take as close an interest in this as we will.

Education

What has been achieved through the Disability Discrimination Act is probably more sharply disputed in the education area than any other. Experience on the basis of complaint statistics is quite encouraging. And yet, there is a widespread view in the community that the DDA has not been as effective on education issues as it should be.

To me this only emphasises the need for progress with standards and other systemic measures.

I know that some sections of the disability community have concerns regarding the current draft disability standards on education. I would urge upon you however the view that even standards which might be less than perfect can still move us forward from a position where mechanisms for large scale systemic change are lacking.

Public transport

A clear contrast is provided by the area of public transport, which has been the most striking area of success under the Disability Discrimination Act. In this area there has been effective strategic use of complaints linked with each of the other major mechanisms which the Act provides for - standards, exemptions and action plans.

From a small handful of initial complaints, HREOC and disability community representatives were able to negotiate national agreement to a strategy including accessibility of all new public transport facilities and services, and accessibility of existing services and facilities within 20 years (with a small number of exceptions).

We hope to see the Standards in force within the next few months. Although this is about five years slower than anyone hoped, many public transport operators have in effect been applying the draft Standards for several years in moving on a large scale towards accessibility.

Providing specifications for what accessibility means, and a timetable for achieving it, have been critical in moving from individualised disputes to system wide change.

In several instances the key to forward movement, after a stimulus provided by complaints, has been the ability of the Commission to grant exemptions. Exemptions were granted to transport authorities while, and on condition that, they implement voluntary Action Plans under the Disability Discrimination Act, which they had developed in consultation with the disability community.

While we have had some criticism for our preparedness to use the exemption mechanism in some cases, I believe that overall our approach has clearly been right - if the objective is recognised as being systemic change, not just dealing with individual complaints for their own sake.

Limitations and lessons

We do not have a comprehensive, objective stocktake available on progress towards equality and accessibility for people with disabilities since the passing of the Disability Discrimination Act. There is enough evidence to show, though, that there have been some substantial achievements. However, experience has also highlighted some of the limitations of the legislation.

Lack of specific requirements for standard setting

Setting of detailed standards on accessibility has been identified as a key requirement in the disability area. So it is a serious concern, that almost ten years since the Disability Discrimination Act was passed no standards are yet in force.

In the United States, under the Americans with Disabilities Act and related provisions of other laws, regulations had to be made by particular dates. In Australia, without the backing of a definite legislative timetable, progress towards standard setting has had to be achieved by slow negotiations (and to some extent by the threat of complaints).

Lack of comprehensive provision for standards

Setting of standards is only provided for in some of the areas covered by the legislation. No good reason is apparent for this limitation.

Some progress has been made in areas such as telecommunications, television captioning and banking accessibility, through voluntary development of industry codes or through setting of standards by other regulators. But an explicit provision under the DDA for standards in these areas - or some other means for certifying these other codes as sufficient for DDA compliance - could have assisted in achieving broader and faster progress.

Limits of compliance and reporting functions

The legislation provides for organisations to submit voluntary action plans to achieve movement towards equal accessibility of services. But only two hundred or so action plans have been submitted to date, out of all the government departments, businesses and other organisations in Australia. The legislation also provides only very general indications of what a plan should contain, so the quality of plans varies widely.

The position is very different to that with affirmative action for women, where reporting is compulsory for employers of more than 100 people and where reports are made to an agency with substantial resources to assess the reports received.

Lack of HREOC enforcement or complaint initiation power

As I said earlier, the Commission has experimented with public inquiry approaches, either as part of the investigation of a complaint or in response to a pattern of complaints, to widen the strategic impact of the legislation. But this still requires that complaints be lodged by someone in the first place.

I would like to see more strategic use of the legislation by organisations and activists in the disability community. But when the Disability Discrimination Act was introduced there was also provision for the Disability Discrimination Commissioner to pursue discrimination issues as if a complaint had been lodged.

However, this "self-start" power had some technical defects which in practice made it unusable, and it was removed when the machinery provisions of the legislation were revised in 1999. It would be timely to consider how an enforcement role such as this could be reinstituted.

Limited impact for some disability groups

Finally, it has to be acknowledged 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.

Some of this relates to difficulties for those groups in making effective use of complaint processes, and reinforces the need for alternative strategies including a more proactive role for HREOC and for representative organizations.

It is also true that our policy has been to concentrate first on issues where broad gains can be achieved. These have been in areas of physical and communications accessibility rather than in more subtle or diffuse forms of discrimination. Delays in "finishing" these accessibility issues, at least to the extent of getting an initial round of standard setting complete, have postponed the shift in focus which we always intended would follow to more difficult agenda items.

There will still be plenty of challenging issues to deal with in disability discrimination, and beyond that in wider issues of human rights, even once (or if) we reach the point where the specific additional basket of accessibility issues presented by disability have been resolved. Regrettably, I and my Federal and State colleagues do not seem to be in any danger of being out of a job to do for many years to come.

Address

Australia