Round table on Disability Action Plans with State Government Departments
Thursday November 3 2005
Dr Sev Ozdowski OAM
Acting Disability Discrimination Commissioner
We are here to discuss disability action plans for State government departments and agencies.
I want to start, though, by talking for a few minutes about the broader legislative context under the Disability Discrimination Act and about what all of this is for in terms of achieving access and inclusion.
In recent years we have seen real progress in recognition that disability is an inherent part of the diversity of the community.
Some of us are women and some are men; some of us brought new names and accents in recent decades and some of us have Australian ancestry reaching back tens of thousands of years; and some of us have one or more disabilities.
I think it is important to remind ourselves that for all Australians, and for the governments which serve us, disability is, or should be, about "us", not "them".
Well known Australian Bureau of Statistics figures tell us that around 20% of Australia 's people have some level of disability.
More fine-grained and more recent analysis indicates that the numbers are likely to be substantially larger - considering evidence that either of hearing impairment or mental health issues affect 20% of our population by themselves.
Another eight per cent of the community act as carers for family or friends with disabilities on daily basis. We also know that these numbers are growing and will grow further as our population ages.
And so, what I would ask every employer and manager to consider is that effective accommodation of disability has to be seen as part of the challenges of managing as an employer or as a provider of programs and services for the workforce and for the community as it already is in practice - not some political, theoretical, legal, external, impractical agenda that can be put to the bottom of an all too full pile of priorities.
A history of exclusion
When you look at the statistics it is remarkable to think that for so long people with disabilities were pushed to the margins, or not thought of at all in major social decisions.
That we built systems for public transport, or education, or healthcare, or telecommunications, or information and entertainment, or political participation, which excluded people with disabilities.
That we built disabling environments even in our buildings and streetscapes.
That we did not have the supports in place to enable people with intellectual or psychiatric disabilities to live effectively in the community and participate equally in community life, and instead allowed exclusion and prejudice to reinforce each other.
Inclusion as a major national reform agenda
The change from exclusion and marginalisation, towards inclusion and participation for people with disabilities is one of the most significant economic and social reform agendas of the last 20 years or so.
After all, what microeconomic reform could be more significant than moving to make fuller use of the abilities of a fifth of our people, and enabling them to participate more effectively in employment and education and other fields?
Because exclusion or overlooking of people with disabilities has been deeply built into many aspects of the way our society works, building an inclusive and equal society presents large scale and long term tasks - in changing laws and policies and programs and also in changing attitudes and expectations.
The role of discrimination law
This reform agenda is not one which can be implemented simply by passing laws.
Still, it is clear that laws against discrimination have been an important part of the changes in Australian society over the last few decades.
In the early 1980s, States which already had anti-discrimination legislation, covering grounds such as race and sex discrimination, began adding coverage of disability. This was largely in response to community activism around the International Year of Disabled Person in 1981.
Last but certainly not least, Tasmania passed its own Anti-Discrimination Act in 1998.
Meanwhile at the Federal level in 1992 the Disability Discrimination Act was passed.
I am happy to take any questions you have about the DDA. HREOC's website information seeks to explain the law in simple and non-technical terms, as well as providing responses to complex and technical questions. Simple suggestions and complex questions are equally welcome to help us do better in presenting and promoting the law.
But I expect that you are already familiar with the basics about the DDA, and that, like me, you are more interested in how to implement equality and take advantage of diversity in practice than in discussion of discrimination law for its own sake.
For today's discussion, perhaps it is enough to emphasise that the DDA defines both discrimination and disability in very general terms.
The concept of discrimination includes both direct and indirect discrimination, subject in both cases to the important limitation that distinctions based on the inherent requirements of the job are not unlawful. The DDA encompasses, although it does not yet explicitly spell out, a requirement to make reasonable adjustments to remove features of the workplace which have discriminatory effects.
Including an express duty to make reasonable adjustments in the DDA, as the Government has decided to do in response to the Productivity Commission's review of the legislation, will provide helpful clarification but will not change the current legal effect of the DDA.
Disability is defined very broadly, to include physical, intellectual, sensory, or psychiatric disabilities; disabilities that are permanent, episodic or temporary.
Whether a person's disability is severe, moderate or apparently trivial, discrimination on the basis of that disability is covered by the DDA.
Different features of the DDA
There are a number of differences between the Disability Discrimination Act and other federal anti-discrimination laws - the Racial Discrimination Act, the Sex Discrimination Act and the recent Age Discrimination Act.
Unjustifiable hardship defence
In recognition of the fact that eliminating disability discrimination can sometimes be more difficult and expensive than eliminating other areas of discrimination, the DDA provides a defence of "unjustifiable hardship".
The DDA has a power for the Human Rights and Equal Opportunity Commission to grant temporary exemptions, for up to five years at a time, to help in managing the transition to equal and accessible systems and facilities.
The Sex Discrimination Act contains a similar power, but it has had a different and more important and positive role within the DDA, in managing broad social change.
People seeking to build accessible transport systems, or information and communications facilities, or buildings, need more to guide them than a general obligation not to discriminate. It is a far more complex business than eliminating sexual harassment for example - not that that has proved easy either, but where in the end the message is a fairly simple one: Just don't do it.
So, in recognition of the different context provided by disability discrimination and the more complex and long range tasks in eliminating it, the DDA provides for development of standards. Compliance with a standard is a complete defence to complaints under the general anti-discrimination provisions of the DDA.
Early in the life of the DDA there was some community concern about standards as being wrong in principle, as taking away people's rights to pursue individualised outcomes through the complaint process under general anti-discrimination provisions.
I think it is fair to say though that this general concern about standards displacing rights under general anti-discrimination provisions has largely dissipated as people have seen the results achieved through the transport standards: and through the exemption and action plan processes which led to them.
Governments and infrastructure providers are clearly prepared to do more if they can have some certainty about what is required to achieve compliance with their obligations. My predecessor as Commissioner, Elizabeth Hastings, was saying exactly this back in the 1990s, and we have been proved right.
Disability community concern now, rightly, focuses not on opposition to standards per se, but on what the content of standards should be.
In the area of building standards there is intense debate as we enter what are hopefully the final stages of development of a disability standard on access to premises.
I say hopefully, because this process has been running since 1996.
The debate now is about what exceptions should be provided to access requirements affecting small business, particularly in 2 and 3 storey buildings.
Issues of expense to industry are real and need to be taken seriously. On the other hand, of course, in suburban and regional Australia these buildings constitute most of the building stock, where people are employed and services are provided.
I have been arguing that any exceptions need to be as narrowly targeted as possible, to avoid excluding people unnecessarily from access to services and from employment opportunities, particularly in regional areas. I recently published on our website some views on the impact of the draft building standards on small business if you are interested in looking at those.
The stakes are high, since the point of standards is that they are not just guidelines. They will define conclusively what access people are and are not entitled to expect.
But I remain confident that the standards will move access forward from where we are now.
Even if the standards do provide that small 2 and 3 storey buildings in general need not be accessible, there are likely to be separate provisions for some situations where an exemption is less justified. One obvious area of this kind would be premises used for administration of government programs.
In my view also, there does need to be more consideration thoughout government of requirements in contracts to ensure that accessibility is delivered and that government provides real leadership in inclusive employment and service delivery.
Recognition of other codes and standards
The process of developing standards under the DDA itself is not the only possible means of giving certainty on what rights and obligations mean and how they should be implemented.
In response to a review of the DDA by the Productivity Commission, the Government decided early this year that the Human Rights and Equal Opportunity Commission should have power to certify other codes or standards for the purpose of compliance with the DDA. We have been asked to provide Government with views on how this might be implemented, and we will be doing that in the near future.
Standards to be recognised under such a function could include codes developed by industry bodies; or by joint industry/consumer bodies. It could also include standards developed by other regulatory bodies.
Potentially, it might include recognition of international standards (such as the World Wide Web Consortium guidelines on accessible websites) or overseas standards (like those from the United States Access Board on accessible information and communications technology for the purposes of government procurement).
This is all for the future as it awaits discussion within the Commission and with Government, including on issues of what effect certification should have and what processes of consultation and assessment might be appropriate to include.
To return to our central topic for today, the other distinctive feature contained in the DDA but not in other Federal, or state, discrimination laws is the provision for voluntary development of action plans.
Who can lodge action plans
At present the DDA states that an Action Plan may be lodged by a "service provider".
The Government has accepted a recommendation from the Productivity Commission to amend this to clarify that action plans can be developed and registered by any organisation or person covered by the Act.
The Government response stated:
The Government is supportive of flexible approaches which encourage industry and service providers to take proactive steps to eliminate disability discrimination. Action plans have proven to be an effective method of encouraging service providers to take steps to achieve compliance with the DDA. Extending the ability to make action plans to all areas covered by the DDA, including the area of employment, provides another option to facilitate administration of the Act.
I should note though that that it is already possible for an organisation which does decide to lodge an action plan with us to include its strategies as an employer as well as in its capacity as a service provider.
What I would like to do this afternoon is present the Commission's views on the value and benefits of developing and lodging Action Plans with the Commission.
I also want to acknowledge that having a formal 'stand alone' Action Plan registered with the Commission is not a pre-requisite to going about the task of eliminating discriminatory barriers to your goods and services.
There are clearly many reasons why an organisation might want to commit to eliminating barriers, but choose not to follow the same path as others and I will comment on some of them later.
The Commission has over 300 plans registered on its website. There is particularly good representation from local Government, tertiary education, and the financial services and telecommunications sectors.
In addition to those registered plans the Commission is aware of many hundreds of plans addressing access issues that are not formally lodged with us. This is particularly so in the State and Territory Government area. In some States access plans are mandatory under State law or policy, but registration with the Commission is not required.
We do not have many Action Plans registered from Tasmanian government.
There are 2 State Government departments, the Department of Vocational Education and Training and Forestry Tasmania, and a further 5 Tasmanian local governments: Hobart, Glenorchy, Launceston, Devonport, and Kingborough.
For brief comparisons, 15 South Australian State departments or agencies have registered action plans. As well as the Department of Premier and Cabinet, these include the Transport department and transport agencies; a health service and a majpr women and children's hospital.
NSW has 13 registered action plans from State departments or agencies, including transport; police and Attorney-General's Department.
In Victoria there has been a particular focus on action plans in local government and 52 local government areas have registered plans with us.
Why do organizations develop Action Plans?
Our experience has shown that Action Plans are developed for a number of reasons including:
1. Organisational leaders initiate their development because of a desire to 'do the right thing' or as part of the organisations general corporate citizenship commitments
2. Key individuals within organisations see an Action Plan as an appropriate means of managing risk
3. State or Commonwealth Government policy decisions lead to a requirement that they are developed
4. Organisations develop them as a result of agreements reached in the conciliation process arising from complaints
5. Advocates with a passion for equity within the organisation successfully lobby for their development
6. Community advocacy organisations advocate with key organisations that they be developed
7. Organisations develop them as part of an application for Temporary Exemptions, or
8. Organisations develop them as a means of managing change over a period of time
Those of you who have used our guides will be familiar with the Commission's views on the benefits of developing an Action Plan.
For people with disabilities and their families, friends and associates the benefits are obvious. Barriers to participation and opportunities are progressively removed without the need for individuals to lodge complaints.
For an organisation to benefit from the work involved in developing an Action Plan, however, the plan must do more than merely meet the requirements of section 61.
I would suggest it must be effective in meeting the objects of the DDA and the expectations of your organisation.
A well-constructed and implemented Action Plan provides benefits to an organisation by:
- eliminating discrimination in an active way
- improving services to existing consumers or customers
- enhancing organisational image
- reducing the likelihood of complaints being made
- increasing the likelihood of being able to successfully defend complaints
- increasing the likelihood of avoiding costly legal action
- allowing for a planned and managed change in business or services
- opening up new markets and attracting new consumers or customers.
Ultimately an Action Plan will be effective in the event of a complaint if it convinces potential complainants, or if necessary the courts, that it:
- demonstrates commitment to eliminating discrimination
- shows clear evidence of effective consultation with stakeholders
- has priorities which are appropriate and relevant
- provides continuing consultation, evaluation and review
- has clear timelines and implementation strategies and
- is in fact being implemented.
Developing an effective Action Plan
Essentially the process of developing an effective DDA Action Plan can be divided into five elements:
- understanding your organisational environment
- creating a favourable climate for implementation
- undertaking effective consultation
- developing an effective evaluation, monitoring and review strategy and
- structuring and writing your plan clearly and accessibly.
What are the benefits of registering an Action Plan?
The Commission sees a number of benefits from registering a plan:
1. The process provides an opportunity for internal education and promotion of the plan
2. Registering makes a positive public statement about commitments to eliminating barriers
3. A public statement enhances the image of the organisation
4. It may have an effect on possible complainants, and
5. From the Commission's perspective it increases the visibility of the DDA and allows for better public and internal accountability.
What factors lead to an organisation not registering their plan
As we know not all organizations choose to register their plans with the Commission and, of those organisations I am aware of, the reasons for that include:
1. A concern that making public statements about eliminating barriers that exist might make the organisation a 'target' for complaints - I am not aware however that this has ever been the case in practice.
2. A concern that if implementation strategies are behind time or change because of organisational change the organization will loose 'public face'
3. A concern that the plan, if made public, might give some benefit to competitors
4. Some organisations integrate their access plans into broader organisational, employment or business plans that are not appropriate for registration as a stand alone
Models from other States: mandatory action plans
There have been a number of calls for action plans to be made mandatory instead of voluntary under the DDA, in particular for government agencies
New South Wales and Western Australia of course have legislative requirements for disability planning and reporting across government in their Disability Services Acts.
South Australia provides an alternative model, demonstrating that it is not necessary to wait for specific legislative reporting requirements to be introduced for government agencies. Policy commitments to planning and reporting can provide a strong framework for accountability and action if the commitment is clear and consistent.
I think there are some very important features apparent in the South Australian approach:
- The clear responsibilities placed on Chief Executive Officers for implementation of the policy framework;
- Self assessment as a tool not only for reporting but as a means of building awareness within agencies; and
- Open and honest reporting against meaningful indicators.
What impressed and encouraged me most about the scorecard which the South Australian Government has published on the web was the degree of frankness shown. Because we can only move forward in increasing access and equity for people with disabilities if governments and others with responsibilities are prepared to acknowledge how much there is to be done.
I would also like to quickly flag a couple of issues where further development of resources and policy may make a big difference in ensuring that action plans result in real change not just paper commitments:
Job Accommodation Network
First, the development of a central clearinghouse and/or advisory service on accommodation issues and solutions. Such a service exists within the United States government on making information and communications technology accessible, and more generally for all U.S. employers there are the online services of the Job Accommodation Network.
For public service organisations I think such a service will offer both a more convenient and less time consuming source of information and advice, and a means for sharing expertise and experience that organisations have built up for themselves.
For smaller employers, easier access to information on solutions to disability adjustment and inclusion issues could make the difference in many cases between feeling able to employ a person with a disability and feeling it is all too hard.
These are resources which HREOC has been advocating for many years. We were delighted to see these developments accepted in principle in the last Federal Budget. Our colleagues at DEWR are working on further development of such a facility. I urge people from State Government to take an interest in this process and co-operate in whatever way you can. Despite being from a Commonwealth agency I am very aware that not all wisdom and knowledge and experience resides in Canberra , including on disability issues.
Second, the United States government has legislative and policy requirements for accessibility or adaptability of equipment procured by government. I would like to see a similar national initiative here, and I anticipate making recommendations on this in the report of the National Inquiry on Employment and disability, but perhaps this is an area where a State government could also consider leading the way.
As you know, it can be more difficult, and involve delay and expense, to make adjustments in work premises, facilities and equipment after the event, when an existing employee acquires a disability or a jobseeker presents a request for an adjustment.
So as far as possible it is preferable if premises, equipment and facilities are designed to meet "universal design" principles, to accommodate the widest possible range of human needs.
This can involve designing systems and facilities to be directly accessible to or useable by people with disabilities; or to be readily adaptable to provide accessibility when needed; or to be compatible with widely used adaptive devices or equipment used by people with disabilities.
Submissions to our Inquiry have particularly stressed the importance of this issue in relation to information and communications technology. More and more of course these technologies are central to how we do our work as public servants.
Technologies change rapidly, which offers great possibilities for expanding access and useability for people with disabilities. But rapid change in information and communications frequently also carries dangers of people with disabilities being left behind; with adjustments and adaptations having to be worked out and made all over again for each new system.
In our own agency and even with the excellent I.T. staff we have, we have struggled with practical examples of this
. how to make TTY phones for deaf or speech impaired phones work with our new Internet based phone system?
. How to ensure that screen reader and voice output software for vision impaired staff works with systems for remote access to computer network?
These are issues which might defeat many a small employer and on which leadership and information on a whole of government basis might well improve things substantially.
At the end of the day an organisation must make its own decision about whether or not to formally register a plan - all I can say to you is that I am not aware of any negative consequences of doing so.
On a final note I would remind us all that at some point in our lives we will all benefit from changes to the way we provide goods and services. Action Plans provide organisations with a means of planning for that change in a way that best suits the organisation.