Don't judge what I can do by what you think I can't: Ten years of achievements using Australia's Disability Discrimination Act
- Amicus curiae and intervention function
- Temporary exemptions
- Action plans
- Promotion of awareness and compliance
- Public inquiries
- Other research and policy work
- Public transport
- Access to buildings
- Goods and services
- Insurance and superannuation
This publication marks ten years since the Disability Discrimination Act (DDA) came into force in March 1993.
During these ten years, thousands of individuals and organisations have used the DDA to create change, either by making complaints of discrimination, using the law as a basis for negotiating broad social change or educating organisations on their responsibilities.
There is no doubt there have been many achievements.
- Thousands of disability discrimination complaints have been dealt with.
- Standards for accessible public transport have been adopted and already widely implemented.
- Telecommunications access has improved for deaf people and other people with disabilities.
- Negotiations on standards for improved access to buildings and education are in the final stages, and there are many practical instances of improved access in these areas.
- Captioning of television programs has increased, with further increases being negotiated.
- There has been widespread adoption by the banking and financial service industry of standards for disability access to ATMs, internet banking, EFTPOS and phone banking.
- Hundreds of service providers, particularly local governments and universities, have developed voluntary action plans for improved disability access.
It also has to be acknowledged that there are areas where individuals and advocates have expressed concern and frustration over the limits to the law, and where progress has been more difficult than was hoped when the legislation was passed.
There is clearly still a long way to go towards an equal and accessible
Australia that enables people with disabilities to participate fully in
the life of our nation. But, as with any long journey, it is useful and
encouraging to look at what progress we have made so far, before returning
our attention to the road ahead.
This publication presents an overview of the history and aims of the DDA, along with the Commission's view of how the different mechanisms within the DDA have worked over the past 10 years to achieve change. It is not a formal review of the effectiveness of the DDA or the Commission's work, but an attempt to highlight changes worthy of recognition.
There are examples of achievements so far in each of the main areas of DDA coverage. There are also a number of personal accounts from individuals who have used the different mechanisms within the DDA to achieve change for themselves or on behalf of others.
Further material on the DDA and its implementation is available on our website, www.humanrights.gov.au/disability_rights. I encourage anyone who is interested in disability discrimination issues to visit this site.
I would like to acknowledge the work of current and former colleagues and staff at the Human Rights and Equal Opportunity Commission towards these results - in particular, the late Elizabeth Hastings, Disability Discrimination Commissioner from 1992 to 1997, and Susan Halliday and Chris Sidoti who acted as Disability Discrimination Commissioner before me. Of course, many achievements have also involved our colleagues in State and Territory equal opportunity bodies, other areas of government, business and the non-government and Community Legal Centre sectors.
Most of all, however, I would like to acknowledge those individuals and organisations in the disability community who have seen the value in using the DDA as a tool for achieving equality and those who have contributed to change by their actions.
Dr Sev Ozdowski OAM
Acting Disability Discrimination Commissioner
As in many other countries, the 1981 International Year for people with disabilities, and disability community activism stimulated by the international year, focused attention in Australia on needs for increased recognition and protection of human rights for people with disabilities.
In the early 1980s each of the States which already had anti-discrimination legislation, covering grounds such as race and sex discrimination, added coverage of disability discrimination.
1981 also saw the passage of the Human Rights Commission Act which first established a national human rights commission. This Act defined the new Commission's jurisdiction 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 replaced it in 1986) gave recognition in federal law to the human rights of people with disabilities, but only in a very incomplete way. These laws did not create any enforceable rights or duties - only an Ombudsman-type power for the Commission to investigate. Also, they only applied to acts or practices of the federal government, not (except in relation to employment discrimination) to matters within State government administration or the private sector.
Through the 1980s disability organisations called for stronger protection of human rights for people with disabilities at the national level, a call which was also endorsed by the Human Rights and Equal Opportunity Commission (now known as the Australian Human Rights Commission, or the Commission).
In 1991 the Federal Government agreed to consider development of national disability discrimination legislation. Initially this was part of a strategy to improve opportunities and participation in the area of employment. It was quickly recognised, however, that the legislation would need to be broader in its focus than this - because of the range of barriers facing people with disabilities in daily life which needed addressing, and because it was clearly not possible to achieve equal opportunity in employment without also addressing barriers in related areas such as education and training, access to transport, and access to buildings.
The Bill for Australia's Disability Discrimination Act ("the DDA") was introduced in the Federal Parliament on 26 May 1992. The then Deputy Prime Minister, Mr Howe, said:
"The Bill will assist all people with disabilities to exercise their rights as Australian citizens and represents a landmark in achieving human rights for all Australians. People with disabilities are entitled to the same rights and the same opportunities as all other Australian citizens. However, our society currently falls well short of realising this ideal. People are still subjected to discrimination purely on the basis of disability - discrimination which, I am sure all honourable members would agree, is socially damaging, morally unacceptable and a cost to the whole community The Disability Discrimination Bill will be instrumental in continuing social change and will have far-reaching and long-awaited effects for people with disabilities."
Mr Howe emphasised the complaint based nature of the proposed legislation and expected that this "would promote gradual structural reforms and attitudinal change". He noted that disability discrimination legislation was already in place or proposed in all States and Territories. However, national legislation was seen as necessary to achieve consistent and comprehensive coverage.
The Bill was passed by both Houses of Parliament with bipartisan support on 15 October 1992. Australia's first Disability Discrimination Commissioner, Elizabeth Hastings, commenced work in December 1992. The major provisions of the legislation, including those making discrimination unlawful came into effect on 1 March 1993.
The objects of the DDA are:
- 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 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. The definition also includes people who may have a disease causing organism in their body and people with an imputed disability (being treated as if you have a disability). 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 employment, access to premises, education, sport, clubs and associations, accommodation, administration of Commonwealth laws and programs, and in provision of goods, services and facilities, including public transport, finance and banking, insurance and superannuation.
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. Indirect discrimination happens where a "one size fits all" rule or situation unreasonably excludes or disadvantages people with disabilities in practice.So, for example, a building with entrance only by steps indirectly discriminates against people who use wheelchairs or have other mobility impairments if level access or lifts or ramps could reasonably have been provided.
When the DDA was being developed it was recognized that simply passing a law to prohibit discrimination would not be sufficient to ensure that discrimination was eliminated or reduced. The effectiveness of any anti-discrimination law depends on the ability of people and organizations to use it. So the legislation provided for a range of implementation mechanisms:
- investigation and attempted conciliation of complaints of unlawful discrimination, and reference of complaints to the courts where resolution by conciliation cannot be achieved;
- provision for the Commission to deal with a matter on its own initiative as if a complaint had been made;
- a role for the Commission to intervene as a party in court proceedings raising disability discrimination issues (and, more recently, for the Disability Discrimination Commissioner to seek leave to appear as an amicus curiae, or friend of the court, without taking sides as a party in a case);
- development of standards on what is required for non-discriminatory access, and to set timetables for achieving it, including in employment, accommodation, education, public transport services and access to premises;
- granting by the Commission of temporary exemptions from the legislation, to manage the transition from inaccessible to accessible systems and facilities;
- voluntary development of action plans by service providers to achieve the objects of the legislation;
- conducting inquiries, including when requested by the Attorney-General;
- promotion of awareness of and compliance with the legislation by the Commission, including publishing guidelines for avoiding discrimination.
There have been over 5500 complaints lodged under the DDA.
Not all of these complaints have been successful. The Commission has been rigorous in applying its power to decide not to deal with complaints which are outside its responsibilities, do not raise a substantial issue of unlawful discrimination under the DDA or, in its view, could be better dealt with by some other statutory authority.
Of those complaints which have been dealt with, a large majority have been settled by conciliation (although precise figures are difficult to give for the whole period due to changes in data collection methods).
Summaries of selected complaint outcomes are presented later in this publication. While settlements of complaints through conciliation are generally made without admission of liability, and therefore are not legal precedents, these summaries do show some of the results being achieved by the DDA in practice. (Further details of conciliated settlements, Commission decisions and court decisions under the DDA are available on the Commission's web site.)
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 can ask Commission staff to assist. Complaints can now also be made by email.
In some circumstances the Commission can also assist complainants to find other supports they might need, like an interpreter or advocate. A network of disability discrimination legal services was funded by the federal Attorney-General's Department from the outset of the legislation and there are also specific legal services focused on mental illness, HIV/AIDS and intellectual disability.
Surveys of people who have used the complaints mechanism indicate that most people find the Commission's conciliation service accessible and valuable.
Some have also found the process to be stressful and time consuming and at times unable to deliver the sort of outcome they were looking for. Some of these concerns can be, and are being, met by continually improving the quality of the service.
When the Disability Discrimination Act was introduced there was provision for the Commission to pursue discrimination issues as if a complaint had been lodged. This power was seen as highly important by disability community organisations, partly because of their own limited resources.
However, the "self-start" power as originally drafted had some technical defects which meant that in practice it went unused. It was removed when the machinery provisions of the DDA and other federal anti-discrimination legislation were revised in 1999. In any future revision of the legislation it would be timely to consider how an enforcement role such as this could be reinstituted.
The effectiveness of the DDA as an advocacy tool from the perspective of a disability organization is described in this article contributed by Aileen McFadzean, National Advocacy Officer for Blind Citizens Australia:
Discrimination against people with disabilities, intentional and unintentional, is the cause of much of the disadvantage that people who are blind or vision impaired experience. Blind Citizens Australia (BCA) was aware well before the enactment of the DDA of the need for national anti-discrimination legislation specifically for people with disabilities. Our members participated actively in the consultation processes which developed the legislation and campaigned strongly for its enactment into law.
BCA has embraced the DDA as a tool to achieve significant change for people with disabilities in Australia. As a national organisation, BCA's individual advocacy service is of course nationwide. We have advocated for people who are blind or vision impaired in all the States and Territories, including remote areas. With an extremely limited budget, where necessary, we travel to support people requiring advocacy support. BCA employs a solicitor whose primary brief is to support complainants in discrimination matters.
The enactment of the DDA means that rather than relying on State and Territory equal opportunity legislation, which didn't always exist universally, we have been able to focus on the DDA to drive our advocacy efforts including our systemic advocacy to change the agenda. This has enabled us to develop a good working relationship with the Australian Human Rights Commission (the Commission) which is well-positioned to manage the investigation and conciliation of complaints in which the complainant might be in one state, the respondent in another and BCA's advocate in a different one again. It has also facilitated our strategic and systemic advocacy relating to matters under Commonwealth control, which forms the bulk of these advocacy efforts.
BCA has had a continual flow of complaints to the Commission since 1994. One of our first complaints was against the Australian Government Publishing Service for failing to produce the DDA in Braille. We provided support to the complainant in one of the first cases to be decided under the DDA, McNeill v. The Department of Social Security an employment discrimination case. We also strongly supported Bruce Maguire in his complaints against the Sydney Olympic Games Organising Committee (SOCOG) in relation to the availability in Braille of the Sydney Olympic Games ticket book and souvenir book and the accessibility of the Olympic Games web site. The successful outcomes in these cases have been seminal to improving the ability of people who are blind or vision impaired to access information in their preferred accessible format. The outcome of the web site complaint created an impetus for people to ensure the accessibility of their web sites.
BCA has used the DDA to bring actions against government departments and private service providers including financial institutions and utilities relating to the provision of non-discriminatory goods and services. We have pressed for bills, statements and correspondence and public issue documents to be provided in accessible formats and have largely been successful in this endeavour. We have pursued education discrimination cases to help students who are blind and vision impaired achieve their academic potential and we advocate vigorously for Education Standards under the DDA to become law.
We have a continual flow of employment discrimination matters for which we push for individual outcomes and used as illustrations to support our quest for employment services which recognise the fact that employment discrimination is rife and is a key factor in long-term unemployment and poor training opportunities for people with disabilities.
We have advocated for people who have been denied service in restaurants and taxis and rental accommodation because they are accompanied by dog guides and used the DDA to make our streets and buildings more accessible. We have strongly supported the development of DDA Standards and were pleased to have co-ordinated the DDA Standards Project between 1996 and 2000.
We want people who are blind or vision impaired to be able to vote independently and have access to political information to better inform their voting choices. We want people who are blind to be able to sit on juries, exercising their civil responsibilities. We need to keep ahead of developing and developed technologies such as web sites and ATMs to ensure that people who are blind or vision impaired have access to the range of communication options available to sighted people. We want to ensure that the use of new technologies such as touch pads and visual displays in everyday consumer items does not mean that blind people can no longer use them. There is so much more we need and want to achieve.
Although the DDA has not transformed the life experience of all people with disabilities, it has provided a mechanism with which to fight some forms of injustice. We have achieved some systemic change and we have advocated for individuals for whom life may not have changed much, but who have at least received some redress for discriminatory treatment. We use successful outcomes where possible as precedents to make the next win a bit easier. Our advocacy service is bubbling furiously and it is the DDA which is providing the heat.
Experience with one unusually difficult but ultimately successful complaint is described in this article submitted by Mr Jeff Heath, an advocate from South Australia:
As a child I saw a movie that depicted the training of knights. In one scene, the young hero was warned that the sword of a knight should remain in its scabbard, "For if it is unsheathed, it has to be used - to kill!"
Most people recognise that the DDA is a powerful weapon. The urge to use it can be strong. However it's my observation that most discrimination as unintentional and the result of ignorance. As a result, I'm of the view that the legislation, like the sword, should be saved as a tool of last resort. This policy has stood me in good stead. When I complain, I always try to offer solutions. I'm polite, but firm. I avoid becoming emotional. As a result, the people I'm dealing with have to stay focused on resolving the problem, not be side tracked by aggressive behaviour.
My resolve was put to the test when, in 1980, I took out a post box at the Adelaide Post Office. I needed daily access, but found that the ramp was dangerously steep and needed to be replaced. Over the coming years I wrote letters, had meetings, and even generated some media interest, but still the ramp remained treacherously steep - and virtually unusable by anyone.
While one of the problems was the lack of interest by the management, there was a very real structural problem - the floor was supported by a vaulted ceiling. Cutting into it, had the potential to see the first floor end up in the basement. A host of options were proposed, considered, and found to be impracticable.
By the mid 90's, I decided that if a remedy was to be found, extra leverage would be needed. Following my initial DDA complaint, a bevy of Australia Post engineers set to work. By 1998 a workable proposal was formulated, only to be rejected by the Adelaide Council and the state Heritage office.
I was not happy. In 1999 I lodged a complaint under the DDA against the three protagonists - the city, the state Government and one of Australia's largest corporations. For nearly 12 months we held meetings, conciliation hearings and briefings, but nothing was resolved and we were at an impasse.
The Commissioner wrote to me that there was nothing more they could do. If I wanted to continue it would have to be via the Federal Court. This is a hard decision and should not be taken lightly. I was not eligible for legal aid so I had to represent myself. At one hearing, it was me against four barristers. Between hearings, I had to respond to threatening letters from lawyers.
To my surprise it still took five court appearances and nearly another year to find a resolution. Finally, 22 years after making my first complaint, entering the Adelaide GPO is easy, dignified and safe for people who use wheelchairs, parents with babies and toddlers in pushers - and postal workers with trolleys full of mail.
Using the formal complaint process is not the only way people have used the DDA to achieve change. Many individuals refer regularly to the DDA in their discussion with service providers at a local level. An example of this approach was provided by Mr John McKenna from Victoria:
So far I have only used the formal complaint system once. The case went in my favour, but I don't necessarily regard it as a victory, more so, a great lesson for all.
I do, however, promote the DDA regularly in another way which would not be recorded in any statistics. During discussions with business owners, or whoever I might happen to cross paths with, we naturally talk about the business benefits and also the fact that whatever the solution to an access problem might be, it can result in a win-win situation. At the end of the day, if discussion doesn't lead to change it is so important for me to know with confidence that I can show people what their responsibilities are under the DDA.
I am not saying you get change by simply waving the DDA, (although that has happened on occasion), but having it there and knowing I can use it helps me in my approach to creating change.
Removal of tribunal role
When the DDA was first passed, the Commission acted as a tribunal to make decisions in cases where conciliated settlement could not be reached, with the courts becoming involved only if these decisions were not complied with. However, this power was removed in 2000 for constitutional reasons.
Concerns were expressed by many disability organizations that the loss of the Commission's specialist tribunal role, and the potential for costs to be awarded against unsuccessful complainants in court, would in effect mean the end of the DDA as an effective tool for pursuing rights.
However, no general trend has been seen so far which suggests the courts are taking a narrower approach to interpreting the DDA than the Commission did as a tribunal
Although there have been a small number of cases where unsuccessful complainants have had a costs order made against them, to this point there does not appear to have been a negative impact on complaints going forward. Nor has there been an increase in the rate of respondents refusing to settle cases and forcing complainants to risk the outcome in court.
The Commission may intervene in (become a party to) court proceedings
that involve disability discrimination issues, where it considers it appropriate
to do so and where the court hearing the proceedings gives leave.
The Commission becomes aware of proceedings in which it may intervene through being notified by the parties, the court itself or through maintaining a watching brief on relevant matters that are before the courts.
All requests or recommendations for the Commission to intervene in proceedings are put to the Commission for its consideration.
The amicus curiae function means a 'friend of the court'. It does not involve the Commission appearing as an advocate for parties to complaints.
The role does, however, allow the Commissioner to present views on the interpretation of the DDA and how it should apply in particular situations. This includes putting information before the court which the Commission has gathered through public inquiry processes or through other processes of consultation with the disability community and other experts.
So far, opportunities to appear as amicus or intervene in court proceedings under the DDA have been limited. In several cases where the Commissioner had indicated an interest in joining the proceedings the matter has settled before going to hearing.
The Commissioner is interested in working more closely with disability community organisations in exercising this function, and during 2003 will be seeking suggestions for criteria and priorities to be applied in deciding in which cases to become involved.
The DDA permits "disability standards" to be made by the Attorney-General in specified areas, presently accommodation, administration of Commonwealth laws and programs, education, employment and public transport. When the Act was being developed it was recognised that general anti-discrimination provisions alone would not be sufficient to achieve equality in many areas.
Building accessible buildings or transport systems, for example, involves decisions on many detailed design issues. People responsible for these facilities will be more ready to invest effort and money in making changes if the law gives them some certainty about what is needed and some security while they implement the changes required.
In other areas such as employment and education, it is more difficult to set detailed specifications on every issue that could arise, but standards could still perform valuable functions by setting out in more detail the principles or processes to be applied in achieving equal opportunity.
The process of developing disability standards involves negotiation and consultation with groups that have an interest in the area. Concern has been expressed about the resources of the disability community to negotiate on an equal footing. While acknowledging those concerns the Commission supports the adoption of disability standards as offering potential for consistent change across Australia.
The Attorney-General has given strong support to the standards development process, including providing resources to a disability community Standards Project to facilitate community input. However, progress with standards has been slower than hoped.
The first disability standard to come into force, on accessible public transport, was approved by the Parliament slightly over ten years after the Act itself was passed.
At the Human Rights Awards ceremony in December 2002, Commissioner Ozdowski presented an award marking the DDA tenth anniversary to the community representatives in the transport standards process (pictured above). He said:
The accessible public transport standards stand out among other achievements in implementing the Disability Discrimination Act because of the scale of the changes involved, guiding billions of dollars of investment; because of the benefits to be gained by the whole community including people with disabilities; because of the degree of implementation the standards have already achieved in practice around Australia; and because of the positive precedent they have set for achieving co-operative solutions in other areas of work under the Disability Discrimination Act.
A standard on education has been drafted, but awaits a decision by the Ministerial Council on Employment, Education, Training and Youth Affairs.
Work has been under way for several years on a standard on access to premises in conjunction with the Australian Building Codes Board and representatives from interested groups. Current estimates are that completion of this work will take at least another year.
Draft employment standards were produced in 1998 but further work has been postponed because of a lack of consensus on whether to proceed with regulatory standards or only with guidelines.
Some of the delay in producing standards results from the approach adopted, and supported by the Commission, of developing standards with the widest possible consensus, including relevant industry bodies, the disability community and Federal and State governments.
Some delays (in particular in the adoption of the public transport standards) have arisen from the unanticipated complexity of Regulation Impact Statement requirements which necessitate a rigorous cost/benefit analysis of the impact of the proposals.
There appears to be no easy way to accelerate the process of standards development.
An issue for possible future consideration, however, is that setting of standards is only allowed in some of the areas covered by the DDA. Extension of the provision for making of standards to other areas would permit additional standards to be made if this was decided to be appropriate.
The temporary exemption power can be used as a tool to promote equality where organisations are seeking some protection from complaints while acting to overcome barriers to access. The Commission has not been prepared to grant an exemption to organisations who simply want to avoid doing anything to comply with the DDA.
The number of exemption applications to date has been quite small, except in the public transport area, where exemptions have been a critical part of the progress that has been achieved.
The limited take up of the exemption mechanism so far may reflect a concern that applying for an exemption could give a negative impression, even though the intention is not to escape responsibility for compliance, but actually to deliver better outcomes in a planned way. It may be that a positive power to certify compliance plans or codes as complying with the DDA should be considered for the future.
Exemption processes are open to public participation. Some significant exemption decisions are summarised below:
South Australian transport
In 1994 the Commission granted a twelve month exemption regarding wheelchair access to Adelaide buses. This was to allow trials of accessible vehicles and to develop strategies for accessible transport more generally. In 1995 a further twelve month exemption was granted on condition that an action plan provided to the Commission was implemented.
Western Australian transport
A similar twelve month exemption was granted in 1995 to Western Australian public transport authorities on the condition that they commence implementation of a wide ranging action plan provided by them to the Commission.
In 1999 Melbourne's tram operators were granted a five year exemption regarding physical access to trams, conditional on implementation of an action plan, which meant accessible low floor trams were introduced much sooner than previously planned. Overall fleet replacement will take 27 years, but substantial numbers of accessible trams have already started service in Melbourne, and infrastructure changes to match them are also occurring.
In 2000 the Commission granted a five year exemption to Kendell Airlines in relation to three aspects of access to small aircraft. The first of these was wheelchair access to aircraft seats where this is prevented by limited aisle width. The second aspect was access to aircraft or seats for passengers requiring lifting, where this cannot be performed safely due to space constraints. The third aspect concerned requirements for a passenger to be accompanied by an assistant. The exemption was conditional on reporting within 12 months on progress in a range of areas including deployment of aisle chairs to all ports and fitting of moveable armrests to improve access.
Olympic Roads and Transport Authority
In June 2000 the Commission granted an exemption, on application from the Olympic Roads and Transport Authority (ORTA), to protect bus operators and other parties concerned from liability which might otherwise arise from the temporary transfer of accessible buses from other services to Olympic and Paralympic related services. The Commission's view was that accessible vehicles are likely to be introduced sooner if operators who acquire them can choose for themselves where to use them.
An exemption for six months was granted to Queensland Rail in February 2002 regarding installation of tactile ground surface indicators. The exemption was granted to permit discussions between relevant interested and expert parties, to clarify safety and other issues affecting design and installation of the indicators. These discussions were successfully concluded in December 2002.
The DDA states that service providers may lodge voluntary Disability Action Plans with the Commission. Having an Action Plan does not give a complete defence against complaints but it can be taken into account in dealing with a complaint.
The Commission believes that developing an Action Plan is a good way for organisations to plan and prioritise their movement towards compliance with the legislation.
The Commission has put considerable effort into promoting the development of Action Plans. However, the number of organisations which have lodged Action Plans remains small in comparison to the number of organisations which could do so.
As at January 2003, 253 plans had been lodged with the Commission. The plans are from 29 business enterprises, 25 non-government organisations, 31 Commonwealth government departments, 36 State and Territory government departments, 91 local government organisations and 42 education providers. The register of Action Plans, and those plans provided electronically to the Commission, are available on the Commission's website. A number of organisations have also submitted revised plans or implementation reports.
In some cases Action Plans have been developed as part of settlement of a complaint.
There has been particularly strong take-up of Action Plans from local government and from universities. It has been clear that staff within these organisations have welcomed the opportunity that the development of an Action Plan gives to make significant changes.
An article contributed by the Municipal Association of Victoria describes
the response to action plans in local government:
Victorian Local Government's response to the DDA 1992
A recent survey of councils across Victoria showed that disability access and inclusion is now firmly on the agenda in the local government sector. The Municipal Association of Victoria collated information from 69 councils about adopting and implementing Disability Action Plans at a local level. A total of 86% of all councils in Victoria reported they will have a Disability Action Plan in place by mid 2003, compared with the 1999 figure of 31%, demonstrating significant steps forward for this sphere of government in recent years.
A typical Action Plan covers the broad range of Council activities that go far beyond the traditional notion of "roads, rates and rubbish." Strategies cover the areas of governance, corporate management, information and communication, infrastructure, planning and development, community planning & services, economic development, human resources and environmental management.
There is a healthy integration of Disability Action Plans into the mainstream planning process of councils. Many report a link with their Council/corporate Plans, Municipal Strategic Statements, Municipal Public Health Plans and others. This is important because it underlines the "whole of council" approach to access and inclusion and should facilitate implementation and accountability.
Councils also reported an increase in participation of people with a disability. 38 councils have Disability Advisory Committees, with a further 16 actively forming Disability Advisory Committees. 19 councils (26% of total) report other ways of involving people with disabilities in local policy and planning.
Factors contributing to progress:
- Increasing awareness in the community of the Disability Discrimination Act and an increasing willingness of people affected by disability to lobby local councils.
- Greater understanding that as the current generation ages it will have higher expectations of councils with respect to accessibility than previous generations.
- General trend towards recognising and valuing diversity in local communities
- State government support for local councils in this area.
- Success of local government initiatives including the Victorian Local Government Disability Network, the Victorian Local Government Accessible Communities Awards and, most recently, linking members of Disability Advisory Committees through Linking Local Action.
The Victorian Department of Human Services has made a major policy shift in working towards community inclusion as well as providing direct disability support services. For example, its Rural Access Program has placed full time, qualified access staff in Shires, providing an important boost to access work in rural and regional areas. It has also funded a Disability Access Project, based at Municipal Association of Victoria, promoting good policy and practice in councils.
- Overcoming significant expenditure issues, particularly in upgrading access to physical infrastructure, council premises and open space. External funding for such projects is difficult to source.
- Overcoming staffing issues in a world of competing claims on limited council resources. Where a council does not employ an appropriate staff member, tangible outcomes for people with disabilities can be limited.
- Maintaining awareness among councillors, managers and officers on disability rights and discrimination. Where significant cultural change is required, the "influencing" work of access workers will take years to come to fruition.
Municipal Association of Victoria plans to continue promoting full DDA compliance with councils and to encourage strategic partnerships with other stakeholders.
In the public transport area, several exemptions have been granted on the condition that actions set out in an Action Plan should be implemented. Where service providers are able to identify meaningful and measurable targets for moving towards non discriminatory service, there appears to be considerable further potential for this type of approach.
The first edition of the federal government's Commonwealth Disability Strategy included a policy requirement for Commonwealth agencies and departments to develop action plans under the DDA. While there was not complete compliance with this policy, the number of Commonwealth agencies and departments which do have Action Plans is relatively high.
It has also been encouraging that State and Territory departments have been prepared to lodge action plans under Federal legislation. NSW and Western Australian government agencies are required to produce disability plans under their own Disability Services Acts and some of these agencies have provided these plans to the Commission under the DDA.
In 2000 South Australia also adopted a whole of government disability strategy which provides for preparation of action plans under the DDA by government agencies.
While the number of plans from major businesses remains small, the Commission has been very pleased to receive plans from major banks, telecommunications providers and transport operators.
The Commission does not have the resources to perform any detailed evaluation of the effectiveness or quality of Action Plans received, except where an action plan has been part of the conditions on a temporary exemption.
The principal accountability mechanism for Action Plans have been to make them available for public scrutiny (through the internet wherever possible) and to encourage service providers to include public participation in development of Action Plans and in their own reviews of implementation.
The NSW Attorney-General's Department provided the following article for this publication on their experience with disability action plans:
Improving Access to Justice for People with Disabilities in NSW
The NSW Attorney General's Department has been implementing Disability Strategic Plans for five years. These plans are making all of the Department's services and programs accessible to people with disabilities.
Critical to the success of this approach is the Disability Advisory Council. Chaired by the Director General, the Council consists of 13 community members, of which at least half have disabilities. The Council advises and assists the Department in monitoring and evaluating its plans.
The Department has provided disability awareness educational opportunities for all Judicial Officers. A staff based team has reviewed various courtroom procedures and incorporated their findings into the court's plans. Physical access to all of the State's 161 courthouses has been audited and the results integrated into the Department's 10 year Asset Maintenance Program. New protocols for requesting interpreters and in-court infra-red assistive hearing devices have helped clients as well as legal practitioners and judicial officers.
Staff with disabilities have also benefited through improved access, employment policy revisions and establishment of a "staff with disabilities" network.
One of the major efforts driven by the Disability Strategic Plan has been the commitment of $550,000 for a Flexible Service Delivery (FSD) program. This provides training, resources, equipment (such as TTYs) and a management framework for front-line staff to better respond to clients with a disability. FSD does not create disability specialists at each location, but training for all staff in accessible mainstream service provision. FSD was delivered to 23 sites across the state in 2001/2002. In 2002/2003 eighteen more sites will participate.
Staff based teams at each location have developed local service improvement plans, informed by consultations with the local disability community. Staff have:
- produced brochures for clients with disabilities in hard copy and on websites,
- revised the font used on formal Departmental letters;
- cleared public foyers of potential access barriers;
- improved building signage;
- improved access to court lists;
- negotiated accessible parking with local government;
- written court procedures in plain English for clients with cognitive disabilities;
- liaised with Mental Health teams;
- changed the protocols of automatic queuing systems to ensure access.
A popular manual has been developed which offers practical tips on how to better serve people with disabilities. A number of other organisations have shown interest in the manual and overall training program. Over 57% of staff have been trained in disability awareness.
The Department is currently drafting its third disability strategic plan for 2003-2005, which will continue to focus on practical and measurable outcomes to minimise discrimination in the Department's services and programs and improve access to the justice system.
In the first year of the DDA a substantial part of the Commission's work and budget was dedicated to a community information and education campaign. This was aimed at people with a disability and at organisations with responsibilities under the legislation. The campaign poster is featured on the cover of this publication.
This campaign was carefully planned to make effective use of a limited budget. Much more impact, however, has been seen from some high profile complaint outcomes, such as Scott v Telstra in relation to telecommunications, Finney v The Hills Grammar School regarding education, and Maguire v SOCOG regarding information accessibility.
The Commission has produced advisory notes or guidelines in a number of areas covered by the DDA: access to premises, insurance, public transport, and world wide web access.
The development of the World Wide Web has greatly increased the Commission's ability to publish information and advice. This has included "frequently asked questions" material, the text of speeches, Commission and court decisions, and links to other sources of information and advice. These materials are also made available in print or other formats on request.
Almost 50,000 page views per month are now registered for the disability rights section of the Commission's web site.
The Commissioner and Commission staff also promote awareness and compliance through participation in many formal and informal educational events, conferences, public forums, workshops and consultations.
In addition, there is significant community education and awareness activity on rights and responsibilities undertaken by disability community groups, State and Territory anti-discrimination bodies, industry and government organisations and in particular through the network of Disability Discrimination Legal Services.
One of the major means for promoting awareness and compliance with the DDA has been the conduct of public inquiries. These have been conducted at the Commission's own initiative; in response to selected complaints raising systemic issues; on exemption applications; and at the request of the Attorney General.
The public inquiry process does not guarantee a successful outcome, but it can have several benefits. It enables broad community participation in discussion of important policy issues. It may enhance the prospects for agreed resolution of issues (including issues which have been or could be the subject of complaints) by gathering a wider range of information, perspectives and options. It may also secure publicity both for discrimination issues and for positive outcomes.
Public inquiries under the DDA have been conducted with modest resources, using the internet as far as possible to gather and publish submissions, and supplementing this with face to face hearings where required to gain more information or pursue resolution of issues.
Public inquiries in this area are described in an article contributed by Dr John Byrne, a leading advocate for the disability community in these processes:
Captioning of television and cinema is a significant access issue for people who are deaf or have impaired hearing. Public inquiries by the Commission under the Disability Discrimination Act have been effective in improving access.
I am profoundly deaf and remember the introduction of television to Australia in the 1950's. For deaf people, initial excitement quickly gave way to frustration. Other frustrations included cinema, plays and opera. Like other deaf people, I have had to rely on entertainment with a high visual content, like sport, ballet and captioned foreign language films.
Closed captioning of television commenced in 1982, when the Australian Caption Centre was formed. Lobbying resulted in a slow increase in captioning of free to air television. The television industry always considered our requests politely but outcomes were limited. In 2001 the majority of free to air television programs on all stations were still uncaptioned as were all pay television programs and English language films in cinemas.
In her review of the first five years of the DDA in December 1997, the inaugural Disability Discrimination Commissioner Elizabeth Hastings commented that deaf people had been slow to make use of the DDA to increase captioning and that greater use could increase progress with captioning issues.
In 1998 the Commission conducted a captioning inquiry that was not a result of a complaint.
The comments of Elizabeth Hastings and the Commission 1998 inquiry influenced people in the deaf community. Complaints began to be lodged with the Commission about lack of captioning of cinema, free to air television, pay television and television provided in hotel rooms and places of entertainment.
The Commission noted that some of these complaints raised complex issues and had wide implications. With the agreement of the complainants and service providers, the Commission used public inquiries as an aid to conciliation of some of the complaints.
Separate inquiries have been held for cinema, for free to air television and for pay television. The inquiries allowed all interested people and organisations to contribute through papers and discussion that were then placed on the Commission web site. Meetings included industry representatives, representatives from organisations that serve the deaf and hearing impaired community and expertise from the Australian Caption Centre.
I have attended many of the meetings of all three inquiries. All meetings have been treated very seriously by all involved and negotiations have occurred in good faith. The effect of the DDA has been to ensure that negotiations use a human rights model rather than a charity model. If an inquiry were to end without resolution, the industry and consumer representatives realise that the matter is then likely to proceed to the Federal Court.
The cinema captioning inquiry led to introduction of captioned new release English language films in the capital cities of all Australian states and territories from May 2001. Australia is the world leader in captioned cinema. For example only half of the states of the USA show captioned movies each week. Industry and consumer representatives have continued to meet regularly since May 2001 to plan and manage the expansion of captioned cinema.
The free to air television inquiry resulted in an offer from the industry to significantly increase captioning and to make a joint approach to the Federal Government to make captioning capacity mandatory on all imported television sets. An offer is expected in the near future from the pay television industry.
Public inquiries have been valuable in improving access to captioning and may also have value for other access issues for deaf people and people with other disabilities. The best starting point for a public inquiry is a complaint about discrimination to the Commission.
I have been deaf since I was a child and have been lobbying for forty years for improvements to access, including access to employment, education and health services. I consider much more progress has occurred in the decade since passage of the DDA than occurred in the previous thirty years. State legislation including Disability Service Acts and Equal Opportunity Acts have also contributed. Current legislation provides an excellent basis for further progress over the next decade.
Medicare Benefits for Psychiatric Services
In 1996 regulations were introduced that meant the Medicare rebate for psychiatric consultations was halved after a patient's 50th visit in any one year. The regulations were intended to address over-servicing but concerns were expressed about their impact on people with high support needs. The Commission investigated whether the regulations were inconsistent with or contrary to the objects of the Disability Discrimination Act.
The results of this examination were reported to the Attorney-General in November 1997. The restrictions which were introduced in the 1996 Budget on Medicare benefits in relation to certain psychiatric services were found to have a discriminatory impact on people with a psychiatric disability. However, as a result of modifications to the regulations following further consultations, the Commission concluded that the regulations were no longer inconsistent with the objects of the DDA. The restrictions which remained were comparable to those which apply to Medicare benefits in relation to a range of other areas of medical treatment, rather than discriminatorily singling out psychiatric treatment and psychiatric patients. It appears that the Commission's involvement assisted in achieving these improvements.
Public transport: Sydney Cityrail station access
In July 1999 the Commission received a representative complaint under the DDA on behalf of people who use wheelchairs regarding access to Summer Hill railway station. It sought implementation of accessibility at that station in 1999-2000.
After issuing a public notice of inquiry and taking submissions, Acting Disability Discrimination Commissioner Susan Halliday exercised the power to decline to deal further with the complaint. (Since April 2000 this power is vested in the Commission President). She found the complaint was adequately remedied by an acceptable overall rate of achievement of accessibility of stations, whether or not the particular station complained about had priority on the list of stations to be made accessible.
Mobile phones and hearing aids
Interference from some digital mobile phones can be so severe that some people who use hearing aids are unable to use these phones. In September 1999 the Commission announced a public inquiry into the issue, prompted by a representative complaint under the DDA on behalf of people who use hearing aids or cochlear implants. This inquiry was successfully concluded in April 2001 with the announcement by Telstra, Optus and Vodafone of schemes to provide remedies.
Barriers preventing people with disabilities exercising their right to vote independently and in secret have less day to day impact than barriers in some other areas of life. However, equal electoral access clearly has great significance for equality of citizenship.
A number of complaints have been conciliated with agreement to improve electoral access in particular locations. In an effort to secure broader progress, a public inquiry into an individual complaint regarding a range of barriers to accessibility in local government elections was conducted in 1999. This led to agreement in 2000 by the Australian Electoral Council - of which all Electoral Commissions are members - to establish a committee, involving the Commission and community representation, to develop a standard definition for access, and set benchmarks for its achievement over a period of years. Formal progress through this committee process has not been as effective as anticipated. However, electoral authorities have continued to pursue improved accessibility in practice, including trials for electronic voting.
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 and older people.
The report on this reference was tabled in Federal Parliament by the Attorney-General in June 2000.
The report welcomed advances made by internet service providers, banks and the Federal Government in combating serious access problems faced by older Australians and people with disabilities. The inquiry found that some older people and people with disabilities face a number of problems in using financial services in bill-paying and phone-based facilities as well as barriers to accessing the world-wide web.
Following the inquiry the Commission has been assisting government and industry bodies to develop initiatives in this area, including through an Accessible Ecommerce Forum sponsored by the Commission and the Australian Bankers' Association.
A major outcome has been agreement by the Australian Bankers' Association to develop a series of industry accessibility standards, on internet banking, phone banking, EFTPOS facilities and automatic teller machines. These standards, developed in consultation with community representatives, were launched in April 2002. Individual banks have now begun to release plans for implementation of these standards.
The Commission conducted a public inquiry on aspects of wheelchair accessible
taxi services during the second half of 2001. Over 90 submissions were
received from industry, government and the disability community. Public
hearings were held in western Sydney, Melbourne, Newcastle and Perth.
A final report was released in March 2002.
The Inquiry found evidence that response times were significantly longer for passengers requiring wheelchair accessible taxis than other passengers making taxi bookings in some parts of Australia. It was not possible to judge conclusively whether numbers of accessible vehicles in taxi fleets overall need to increase to achieve equitable service, because most jurisdictions did not have, or had only very recently established, adequate performance monitoring for accessible taxis. Discussions with transport regulators on improved performance monitoring are continuing.
Since before the passage of the DDA the Commission has had a strong interest in the issue of people with disabilities being unnecessarily or unlawfully subjected to sterilising surgery. It has sought to promote appropriate safeguards and provision of alternatives to families.
Following the publication of a commissioned report, Sterilisation of Girls and Young Women in Australia in 1997, the Commission has held meetings with the Department of Health and Family Services and the Attorney-General's Department to discuss strategies to address the problem of unlawful sterilisations. In 1998 the Commission negotiated changes to the Medicare Benefits Schedule book. This included a note attached to the fee schedule for relevant procedures reminding practitioners that, unless authorised by the Family Court (or in some States an authorised Tribunal or Board), it is unlawful to sterilise a person under eighteen unless the procedure is a by-product of surgery appropriately carried out to treat malfunction or disease. The note also reminds practitioners of the role of the Family Court in providing authorisation.
In 2001 a follow up report to the 1997 report on these issues was released, and in 2002 the advocacy organisation Women With Disabilities Australia issued their own report. Discussions with the Attorney-Generals Department have continued on appropriate education strategies and legal reform in this area.
Accommodation and abuse
The Commission has long been concerned with the need for more effective measures of protection and remedy against abuse of people with disabilities in institutional settings, and measures to ensure that people with a disability have accommodation options consistent with Australia's human rights commitments.
The Commission conducted substantial background research in this area in 1997. This work did not identify any options under the DDA likely to be more effective than the continued pursuit of available mechanisms under other laws. However, this is an issue where further attention by the Commission may be required.
Mental health projects
The Commission conducted a small program of consultations in the mental health sector in mid-1998 to identify areas where the Commission could best make a contribution with modest levels of resources currently available. The first project emerging from these consultations, a discussion paper on 'living wills' or advance directives, was issued for public comment in late 1998. A range of interesting and important submissions is available with the discussion paper on the Commission's internet site. The Commission has not had the resources for some time to follow up this work. However, Commissioner Ozdowski hopes to conduct further research in the psychiatric disability area commencing in 2003.
Achievements in this area are described in this article contributed by
Maurice Corcoran who has had a leading role in disability community action
on public transport:
The Road to Accessible Public Transport in Australia
People with physical disabilities have been denied access to public transport in Australia and have had as a replacement segregated, purpose-built 'taxi services'. These taxi services have been limited in numbers and generally been under resourced, therefore have been unable to provide an equivalent means of transport to that which the general public enjoy.
There are many Australians who are not able to access our public transport systems. The 1998 Australian Bureau of Statistics survey of Disability, Ageing and Carers found that 1,050,700 reported difficulty using public transport, including boarding conveyances and access to stops or stations.
This situation is now changing as the result of three important pieces of work:
1. The Disability Advisory Council of Australia researched and prepared an extensive report in 1994, (Target 2015 - A Vision for the Future) which was both an audit of transport in Australia and a proposal for implementing accessible transport over a 20 year timeframe;
2. Disability activists lodging successful claims of discrimination under the DDA;
3. The development of national Disability Standards for Accessible Public Transport which included extensive consultations and detailed analysis via a regulatory Impact Assessment.
As a direct result of complaints under the DDA, State and Federal transport Departments have for the past 6 years begun developing integrated accessible transport systems. In 1994 Transport Ministers recognised that accessibility of our transport systems needed to be addressed nationally and established a national taskforce. The taskforce included representatives of people with disabilities; transport service providers; the Federal Attorney-General; the Australian Human Rights Commission (previously known as Human Rights and Equal Opportunity Commission); and State and Federal Transport Departments.
A set of National Disability Standards and Guidelines were developed under the direction of the taskforce to assist in the implementation of accessible transport across Australia. The Standards cover all modes of public transport including taxis, trains, trams, buses, ferries and airlines. It also covers infrastructure such train stations, bus stations and stops, interchanges and airports.
In June 1996 these Standards were first approved by the ATC as a 'technically feasible' way of making public transport accessible and were then subjected to a Regulatory Impact Statement (RIS) process. The RIS investigated the costs and benefits associated with the Standards and estimated the implementation costs to be $3,744 million and benefits of $2,655 million, which equates to net cost of $1,089m over a twenty year timeframe.
The RIS also identified significant savings by varying the compliance timetable for buses and extending the time for compliance for trains and trams. The RIS and the Standards were presented back to the ATC in June 1999 and were again approved subject to the exclusion of dedicated school buses, charter services and ferries in open waters and on the proviso that there be a technical review.
The Standards were finally tabled in Federal Parliament on August 19, 2002 and they became law on the 23rd October 2002.
Although the process has been frustratingly slow, the process has engaged all stakeholders and has been vital for the joint ownership of the standards. The Standards are being used across Australia by operators, manufacturers and people with disabilities as a means to check on what and how access provisions can be applied to public transport. The Standards are by no means perfect, with all stakeholders having to make some compromises along the way but they are a starting point and the best possible outcome in the present economic and political climate.
As a result of States and Territories using the Standards over the past 6 years we already have 25% of all metropolitan buses accessible now or approximately 1,200 in operation around Australia. A number of States have 100% accessibility to trains already and there is considerable work underway on infrastructure upgrades all over Australia.
The Australian Human Rights Commission and in particular the Disability Rights Unit can be justly proud of the outcomes that have been achieved so far through the Standards and what is still to be implemented over the next 25 years. I would also like to acknowledge all members of the National taskforce who developed the Standards and in particular Margo Hodge, Kevin Murfitt, the disability sector representatives and Angus Downie, an independent appointment. Their work was recently acknowledged by the Commission with a special award to celebrate the 10th anniversary of the DDA.
Lastly I would like to acknowledge the hundreds of organisations, individuals with disabilities and associates who attended forums, wrote submissions and lobbied for accessible transport. Without all of this work and commitment the Standards would not have been achieved.
Transport complaint outcomes
Three people who use wheelchairs complained in 1994 about new inaccessible buses being purchased. The Commission made an interim order to prevent the purchase proceeding. The complaint was settled with the SA Government agreeing to develop an Action Plan; obtaining 3 wheelchair accessible buses to begin trials; and announcing that as from July 1995, the first low floor - fully accessible buses with ramps would come into operation at the rate of one per week. It was agreed that these buses would form the basis of a pilot scheme for accessible public transport.
Accessibility of Perth public transport
A number of people with disabilities complained that tender documents for public bus services in Perth failed to specify accessibility as a requirement. Agreement was reached to establish an Action Plan under the DDA by November 1995; for any bus contracts prior to this to specify accessibility as a requirement; and for a temporary exemption to be applied for pending commencement of the action plan. This Action Plan was finalised on time after extensive consultation and launched in March 1996.
Access to NSW railway station
A student who uses a wheelchair complained that plans for a new railway station to serve Newcastle University did not provide for access. The Commission issued an interim order preventing tenders for construction going ahead until the complaint was resolved. The matter was settled when the Minister for Transport advised that this and all new railway stations would be accessible and that he would support a national strategy for access.
Access to Sydney buses
People with Disabilities (NSW) complained that the State Transit Authority (STA) had ordered 150 buses without requiring that they should be accessible to a person using a wheelchair. The complaint was settled on the basis that while the current order would proceed, some of the 50 buses ordered subsequently would undergo trials for accessibility as soon as possible, in conjunction with PWD (NSW).
A man who uses a wheelchair complained that ticket facilities at several major rail stations were inaccessible to him. The complaint was settled when the operator agreed to remove barriers at ticket booths and improve signage of access paths.
Boarding ramps for suburban trains
A man who uses a wheelchair complained that ramps for boarding and leaving suburban trains were not reliably provided so that on occasion he had been unable to board or been stranded on a train far past his destination. The complaint was settled when the rail operator adopted new operating procedures developed in consultation with disability organisations.
Taxi access for guide dog users
Two vision impaired people complained that taxis at a major airport were refusing to take passengers accompanied by guide dogs. The complaint was settled when the taxi regulatory authority concerned advised that they were drafting a general directive to all taxi operators informing them of the relevant provisions of the local anti discrimination law and passenger transport legislation as well as the DDA.
Oxygen on plane
A man with emphysema which requires him to use a supplementary oxygen supply on airplanes complained that he had not been allowed to use his privately-obtained oxygen supply which had cost him $27, but instead was required to buy and use oxygen supplied through the airline at a cost of $400. A conciliation agreement was reached for the airline to reimburse $400, issue a written apology for the incident and change its policy permitting passengers to use their own oxygen supply on its flights.
Airline terminal access
A man with a mobility impairment complained that a budget airline's terminal building was inaccessible because the entrance was by steps with no ramp access provided. The complaint was settled when the airline agreed to install ramps and review other access features.
Transit procedures reviewed
A man who uses a wheelchair complained that when changing planes at a foreign airport during an international flight, the airline had no proper procedure for the transit of a person in a wheelchair from one section of the airport to another. He claimed that the other passengers left the aircraft immediately after arrival, but he and his partner were obliged to wait while the aircraft was cleaned; he was then placed in a child sized wheelchair without footrests; loaded into what appeared to be a catering truck and driven across the tarmac in the dark; and given no opportunity to use a toilet before boarding the second aircraft. The matter was settled with an apology and an agreement to review procedures.
On plane wheelchair access
A woman who uses a wheelchair complained that although she had requested and was assured of the availability of an aisle wheelchair on the plane for an overseas holiday, this service was not made available. As a result she had to be carried to the toilet on the plane, was uncomfortable and felt humiliated, and because she feared drinking anything on the flight to avoid the use of the toilet she became dehydrated.
At a conciliation conference, the airline apologised, and agreed to refund the cost of the flights. It also advised that it has now provided aisle wheelchairs on all its large planes and is in the process of providing them for all its overseas flights.
Accessibility of existing long distance rail carriages
A man who uses a wheelchair for mobility complained of restricted wheelchair accessibility on a rail operator's long distance services due to dimensions of doors, corridors and toilet doors. In conciliation the complainant accepted undertakings that while it would not be feasible to modify the carriages, the operator provided a narrow wheelchair which did allow access to the train and new carriages would be accessible.
In another complaint regarding long distance trains, a woman with mobility disabilities complained that accessible toilets were provided only in first class. In conciliation the operator agreed that economy passengers requiring accessible facilities would be provided with access to facilities in first class.
Adams v. Arizona Bay Pty. Ltd., Charlie Habib and Bunge Pty Ltd:
Discrimination and harassment was found in provision of taxi services to a person with a physical disability. The Commission said $5000 compensation should be paid.
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 recognition has come because of a general change in social attitudes and awareness. Much of it has been the result of tireless work by people with disabilities across the country, as experts, through local access committees and through use of complaint processes.
There have now been hundreds of disability discrimination complaints which have been resolved with an agreement to modify premises to make them accessible. One of the most significant complaints is described in this article by Mr Kevin Cocks, a leading member of the Queensland disability community:
As a person who acquired a physical disability in 1981, I suddenly became aware of the many barriers experienced by people with disability in everyday life. Many of these barriers evolved from belief systems that discriminated against people with disability. These attitudinal barriers often resulted in people having limited opportunities to participate in everyday community activities, events and life. In fact these barriers affected the broader population for example parents with prams, the elderly and those with temporary or hidden impairments such as a broken leg or bad back etc.
In Queensland people with disability had no legal avenue to pursue discriminatory practices until 1991 when the Queensland Anti-Discrimination Legislation (QADA) was enacted closely followed by the Commonwealth Disability Discrimination Act in 1992.
However with the introduction of anti-discrimination laws people with disability have been able to challenge proposed or existing, legislation policies, and practices that they believed to be discriminatory. This was the case in the 'Cocks V's the Queensland Government', or better known as 'the Convention Centre case'.
The issue relating to the convention centre was an age-old problem experienced by people who could not access premises by stairs. Stair access to buildings either completely excluded people with mobility disability from entering said premises or forced them to enter the building via "the tradesmen entrance" that is down the alley past the rubbish bins and in the back door. Not the most agreeable means to begin an outing with family and friends.
The Convention Centre case was one of the landmark decisions in terms of access to premises for people with disabilities. In that it has:
- Certainly demonstrated that the State and Federal anti discrimination legislation had teeth and that people with disability would use the legislation judiciously.
- Confirmed that the Building Code of the day (1992 edition) was a discriminatory document.
- Brought about an immediate update of the Building Code of Australia. The 'access required via the principle entrance' clause was added to Section D3 of the 1996 Edition of the Building Code.
- Focussed industry attention on the lawful requirements for equitable access to public premises. The Australian Building Codes Board are auspicing discussion, research and regulatory development. This has fed in to the development of an Access to Premises Standard under the DDA. Prior to Cocks vs Qld many developers and building owners were indifferent to the DDA and QADA.
- Engendered an update of the DDA to allow an access to premises standard to be developed. This was initially not one of the standards listed for development in the DDA.
- Placed all and sundry who design, certify or build public premises on notice that they could no longer use outdated belief systems to justify discriminatory practices.
- Encouraged other groups concerned with access to transport to pursue actions.
In closing I share an experience I had attending a conference not long after the opening of the convention centre. I was waiting for the lift when the doors opened I was met by a family of four mom, dad, and two kids. Dad had a broken leg and was on crutches mum was pushing a toddler in a pram and holding his brothers' hand. This was evidence of a non-discriminatory building, one which facilitated citizen participation and enjoyment.
A draft Access to Premises standard under the DDA is hoped to be available shortly. Meanwhile, the complaint process continues to achieve results as seen from the following summaries. As well as issues of physically inaccessible design and construction, complaints have also dealt with other types of discrimination, including access for blind and vision impaired people, smoke free access for asthmatic people, and access for guide dog users.
One small step, one giant leap
A woman who uses a wheelchair complained that access to her local shop was prevented by a single step at the entrance. The store agreed that the current practice of serving people with disabilities on the pavement outside was not adequate. The complaint was settled with the store building a ramp.
Prompt steps taken
A man with a vision impairment complained that he could not safely use steps on a pedestrian walkway in a major city, because he could not see the outline of the steps. The matter was settled when the responsible authority marked the edge of each step with a contrasting line within four weeks from being contacted by the Commission.
Getting customers through the door
Two groups of people with disabilities complained that the local shopping centre had inadequate access. An agreement was negotiated to improve entrances, signage, install a new lift and modify existing lift, improve car park and lighting, improve access to stairs and install tactile indicators, and relocate and improve toilets.
The pub with no barriers
A man with a physical disability complained that the only hotel in his town was not accessible to him because of a lack of ramp access and accessible toilets. The hotel agreed to provide access.
Accommodation of disability in footwear requirements
A man whose disability causes his feet to swell complained that he had been excluded from an inn because he was wearing open sandals, although he had explained his disability. The complaint was settled with an apology and $1000 compensation.
Licensed club access for person with speech impediment
A woman with a speech impediment complained that because her disability made her appear intoxicated, she had been refused service in a club even when she produced a doctor's letter explaining the situation. The complaint was settled when the club agreed to apologise and arranged for provision and acceptance of a card authenticating the woman's disability.
A woman who is being treated with chemotherapy for cancer and has lost her hair complained that a club would not allow her to enter with her hat on. The complaint was settled with an apology and an agreement to review the club policy on hats.
A better view
A man who has quadriplegia complained that the wheelchair accessible seating in a recently constructed tennis centre and aquatic centre had poor lines of sight, as railings at eye height obscured the view. The complaint was settled with alteration of the main balustrades to 800mm, with thin steel cables installed above for safety.
Swimming pool access
A woman who uses a wheelchair because of Multiple Sclerosis complained that her local swimming pool was not accessible to her. She could not get into the water except by being tipped out of her wheelchair and could only get out by being dragged up steps. The complaint was settled when the local council agreed to implement interim access measures including training pool attendants in safely assisting people with disabilities into and out of the pool, and to undertake modifications including installation of a hoist and upgrading of toilet and change rooms.
Accessible unisex toilets at pool
A mother complained on behalf of her son, who has a physical disability, about the lack of an accessible unisex toilet at the local swimming pool. Having to use the female toilets (in the presence of girls from his school class) when accompanied by a female carer was extremely embarrassing for him. After a conciliation conference the local council agreed to construct a unisex accessible toilet.
It's not accessible if its blocked
A woman complained on behalf of her father who uses a wheelchair that when the family attended a restaurant the "accessible" toilet was in fact inaccessible because tables and chairs had been stacked against it. The complaint was settled when the restaurant apologised, stating that the furniture had been moved for cleaning and the failure to move it back was a rare oversight.
or if you can't get to it
A man who uses a wheelchair complained that inaccessible features of function rooms operated by a local council had resulted in discrimination and humiliation when he attended a wedding there. Although he had been advised the rooms were accessible, the lift was a goods lift which was too narrow and did not operate easily even though staff attempted to assist. As a result he was unable to reach the toilet (which was on a different floor) in time, had to leave to change clothes and missed the wedding. The complaint was settled with an agreement to install a lift complying with standards for passenger use, as well as disability awareness training and payment of compensation.
Reaching the beach
A man whose wife uses a wheelchair for mobility complained that changes to the path to his neighbouring beach had removed access to the beach for his wife, who had previously been able to reach and enter the water with his assistance. In conciliation it was agreed that while it was not possible to provide fully independent wheelchair access to the water in the location concerned, at least assisted accessibility could be restored by making the steps less steep. The path leading to the steps would also be cleared and improved so that a wheelchair could be wheeled along it.
That's a guide dog, mate
Two friends complained that they had been required to leave a bar because one of them was accompanied by a guide dog. The complaint was settled with an apology, compensation of $3000 in total plus payment for expenses and a donation to charity.
Guide dog access to hospital
A man who is blind complained that he had been discriminated against by a public hospital refusing him access because he was accompanied by his guide dog when he went to visit a family member. The matter was settled when the hospital apologised, agreed to pay an amount of compensation for the incident which had occurred, and clarified its policy that guide dogs were permitted subject to a discretion to restrict access for the dog in the interests of patient care in which case secure supervision was to be provided for the dog and staff assistance provided instead for the person.
Failure to ensure access conditions fulfilled
A woman who uses a wheelchair complained that her local council, which had approved construction of a motel with disability access, had failed to note on final inspection that a number of features of the "accessible" suite did not in fact meet access conditions and that an accessible parking space was lacking. The matter was settled when the council advised that rectification of the access features had been arranged, and that staff had increased their vigilance on access issues.
Footpath accessibility improved
A man who uses a wheelchair complained that the placement of a new bus shelter and the condition of the adjoining footpath made access for him unsafe. The complaint was settled when the local government authority agreed to resurface the path.
Independent access to court house
A man who uses a wheelchair complained that recent upgrades to a capital city Magistrates Court, although costing over $30 million, had failed to provide for independent access for people with disabilities. In particular he complained that the entrance had three steps with a platform lift at the side which was not independently operable. The complaint was settled on the basis that the respondent would install ramp access and bring other access features into compliance with relevant Australian Standards, and take action to ensure that future capital works of this nature would not lead to similar problems.
Racecourse access improved
A man who uses a wheelchair complained that he was discriminated against by lack of accessible parking and adequate wheelchair access between the betting facilities and viewing area at a regional racecourse. The matter was settled with an agreement to designate an accessible parking space or spaces for trotting events; investigate means of providing appropriate wheelchair access between the betting area and a suitable viewing area, and in the interim to provide staff assistance on request.
Court provides parking
A man who has a disability making it difficult for him to walk long distances complained that he had been discriminated against when he was summonsed to appear at a court house which did not have any accessible parking near to its entrance. The matter was settled when the respondent advised that the local council had approved a proposal to provide two street parking spaces nearby for people with disabilities.
Heritage doors no barrier
A woman with a physical disability complained that she was unable to use a local Commonwealth Government office due to steps at the entrance and inside the premises, and heavy front doors. The respondent advised that ramp access was being arranged but they did not regard it as possible to replace the existing doors because of their heritage significance. The matter was settled when heritage approval for automatic doors was in fact obtained when it was finally asked for.
Smoke free access
A man with asthma and other disabilities complained that he was unable to use a Brisbane suburban shopping centre because smoking was permitted throughout. On receiving the complaint and a copy of the Commission's decision in Francey and Meeuwissen v. Hilton Hotels of Australia, the shopping centre advised that the centre would be non-smoking forthwith.
In another case, a man with a condition causing his airways to react to smoke complained that he was unable to use the bar at his local bowling club safely. Smoke removal fans had been installed but not used and maintained. The matter was settled when the club advised that the fans would be used and kept operational and non-smoking area rules would be enforced.
Gymnasium access worked out
A man who uses a wheelchair complained that a commercial development under construction in his small town included a first floor gymnasium with access only by stairs. The matter was settled when the respondent agreed to install a "Stair-Mate" device to enable people with mobility impairments to gain access to the gym, and to obtain training on disability issues.
Druett and Cooper v New South Wales
Two people with physical disabilities complained they had been discriminated against in 1994 by lack of provision of access for people who use wheelchairs to serve as jurors in certain courts in Sydney and at Coffs Harbour. The Commission found there had been a refusal to provide the service of assisting an eligible person to perform jury duty when Ms Druett was directed against her wishes to apply for exemption from duty. Damages of $5000 were awarded accordingly.
Ian Cooper v. Coffs Harbour City Council
A council was held not liable for permitting discrimination in approving an inaccessible development, on the basis that they had not acted unreasonably. However, this decision was reversed by the Federal Court which pointed out that liability for permitting an unlawful act was strict unless the council had acted on an honest and reasonable mistaken view of the facts. On rehearing the case the Commission found that "the Council did little if anything to properly inform itself of the relevant matters so that its belief could be supported on reasonable grounds" and was liable accordingly.
Ian Cooper and Others v. Holiday Coast Cinema Centres Pty Ltd
The complainants alleged unlawful discrimination in the building of a new cinema in an existing complex with access being only by stairs. The Commission found that to install platform lifts immediately would involve unjustifiable hardship in the present financial circumstances of the respondent, but to do so within five years would not. Accordingly the respondent should be required to provide access by 2002.
Brown v. Birss Nominees Pty Ltd
$1000 damages was awarded for refusal of access to a caravan park for a man with a hearing dog.
Francey and Meeuwissen v. Hilton Hotels
A requirement to be able to tolerate cigarette smoke was found unreasonable and discriminatory. $2000 damages was ordered and a further inquiry process conducted to identify what other measures might be feasible. However, after this inquiry smoke removal technology was not ordered since no feasible approach could be identified.
Sheehan v Tin Can Bay Country Club
Discrimination was found in requiring an assistance dog to be tethered, given evidence of the training and disposition of the dog.
Haar v Maldon Nominees
$3000 damages was awarded for discrimination in access to a restaurant for a guide dog user.
More complaints are received on employment issues than any other area under the DDA, and a high proportion of these complaints have been resolved by conciliation. Summaries of results of complaints through conciliation, Commission determinations and court decisions are set out below.
A major part of the initial stimulus for introduction of national disability discrimination legislation was as part of a strategy to improve employment opportunities for people with disabilities (and incidentally to reduce rates of dependence on the social security system. There is not much evidence however that this strategy has yet succeeded. Rates of unemployment and underemployment among people with disabilities remain much higher than for people without a disability.
Employment is one of the areas where development of disability standards is provided for. Considerable time and effort was spent from 1995 to 1998 by the Commission, other government agencies, and representatives of employers, trade unions and people with disabilities, in attempting to develop such standards.
It has not been possible to date to reach agreement on standards to introduce. One problem has been in finding a balance between standards which are too specific to be workable in all employment situations and standards which are too general to give much more guidance than the existing open ended discrimination provisions.
Although the draft standards in this area did not specify outcomes (such as "when does a sign language interpreter have to be provided" or "what restrictions are permissible on using machinery if a person has epilepsy" or "what adaptive equipment should be provided for a blind person"), they would have assisted by at least making the principles clearer.
In particular the draft Standards tried to make clearer the duty to make reasonable adjustments to accommodate a person's disability as part of the duty not to discriminate. If the Disability Discrimination Act were being drafted now the Commission would certainly seek to have more explicit provision to this effect included in the legislation itself.
However, in the United States, where more prescriptive and detailed regulatory requirements have been in place for some years under the Americans with Disabilities Act, the evidence is similarly that overall employment outcomes for people with disabilities have not improved significantly. So clearer or more specific legislative provisions do not seem to be the whole answer.
Equal opportunity in work is not only a matter of attitudes and practice in the workplace itself. It depends on equality in the pieces that work is made up of - skills formation, accessible communications and information systems, accessible premises, accessible transport and so on.
Positive results in future employment outcomes may be found from achievements in these areas. But more direct strategies to achieve equal employment opportunity are also necessary.
The Disability Discrimination Act does not contain any explicit requirement even for larger or public sector employers to develop, implement and report on positive strategies to achieve equal opportunity for people with disabilities.
There is also a need to look at whether employers have effective and sufficiently easy access to information on how to deal with disability accommodation issues.
There is still no equivalent in Australia for example to the U.S. Job Accommodation Network advisory service, which provides practical information and advice to employers on equipment or other modifications necessary to accommodate a person's disability in the workplace, other than the efforts of agencies like the Independent Living Centres and Technical Aid to the Disabled (seriously under resourced compared to the task to be performed).
The DDA cannot provide the whole of a strategy for achieving equal employment opportunity. In the context of current welfare reform discussions, many disability organisations have called for attention to the "other side" of mutual obligation: the obligation of government and community to do all they can to remove the barriers which presently exist to people with disabilities taking advantage of opportunities and contributing more fully in the economic life of Australia.
Employment conciliated outcomes
Unfairness easily seen
A woman complained that because she has only one eye she was refused a telemarketing job. The complaint was settled with payment of $1000 compensation.
Police applicant survives cancer and discrimination
A woman complained that her application to join a police service had been rejected because she had cancer of the cervix in the past. The complaint was settled with payment of $14000 compensation and an agreement to review medical criteria.
Hands free access
A woman with occupational over-use injury complained that a voice-activated computer system had not been installed despite approval from IT staff for this to occur. Instead she had been requested to transfer to different duties. The complaint was settled when the software was installed and $6000 compensation paid.
Diabetic bandleader marches on
A man with insulin dependent diabetes complained that he was to be discharged from his role as an Army bandleader. The complaint was settled when it was agreed that the man could continue in his duties subject to regular review of medical fitness.
Adjustment to work methods
A woman with a lower back problem complained that she had been refused a job involving house to house distribution and pick-up because she could not carry heavy boxes. She claimed the employer had failed to consider reasonable adjustment by allowing her to do the job carrying smaller amounts of material at a time. The complaint was settled when the employer agreed to review its selection procedure.
Mission impossible: eyesight tested without glasses
A woman complained that she had been refused a position involving inspection duties for a Commonwealth authority because she could not pass an eye test without her glasses. The complaint was settled when the authority agreed to offer her a position.
Dismissal while in hospital
A chef complained that when he experienced a severe anxiety attack and required seven days sick leave during which he was admitted to a psychiatric hospital, he was dismissed. The complaint was settled with payment of $55,000 compensation and provision of a reference.
Review of colour vision testing
A man complained after he was ruled ineligible for employment with a security agency because of colour blindness. The complaint was settled when the employer agreed to conduct more comprehensive testing with a focus on the requirements of the particular employment.
Sacked after MS diagnosis
A woman complained that she had been discriminated against when her employment as a manager was terminated two weeks after she advised her employer she had been diagnosed with multiple sclerosis. After a small amount of time off work for initial tests she had experienced only minor symptoms and continued to be able to perform the job. The employer appeared however to believe that because the effects of MS vary greatly from person to person this meant that no-one with MS could be relied on to continue working. The complaint was settled with payment of $6500.
Accommodation of deafness
A woman who is deaf complained of a lack of reasonable accommodation in the workplace including provision of TTY phones, alternatives to audible public address announcements, and lack of interpreters for important meetings. She also alleged harassment by a supervisor for signing with other deaf employees. The complaint was settled with an agreement to provide awareness training for staff and supervisors, to provide for text communication and to pay $5000 compensation.
In another case, a deaf person complained that a job search company had refused to arrange a sign language interpreter for an interview as requested. The complaint was settled when the company apologised and agreed in future that it would provide reasonable adjustment for deaf people including interpreting and that it would conduct staff training on accessibility.
Safety concerns resolved regarding deaf employee
A man with a hearing impairment complained that he had been discriminated against by being refused an interview for a window cleaning job. The employer had been concerned about the man's ability to fulfil safety requirements. The complaint was settled with an apology, payment of $2000 compensation and an undertaking to develop policies to ensure that the situation did not occur again.
Drivers licence requirement for social worker reviewed
A woman with a vision impairment complained that she had been discriminated against in not being considered for a job as a social worker because she did not have a drivers licence. The position involved making some home visits each week and the employer had considered that public transport would not be efficient for the purpose and use of taxis would impose an unjustifiable hardship given its recent investment in cars. After a conciliation conference the matter was settled on the basis that a driver's licence would be regarded as desirable rather than essential, since a review had indicated that two thirds of social workers holding drivers licences could be sufficient.
Need for additional training
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.
Adjustment to working hours
A woman who has Post Traumatic Stress Disorder following an accident complained that her employer had changed her hours of work which meant she now could not get a lift to work and would need to use public transport. This made her extremely fearful. The complaint was settled when the employer agreed that her previous working hours could be maintained and that there would be consultation before any changes.
Employment agency access
A man complained that an employment service had refused him service because of his disability. He said that the manager advised him that he could not be assisted and that he should go to a specialist disability job agency. He said that he was also advised that "we do not make adjustments here, you have to fit in the way it is". After a conciliation conference the agency agreed to resume employment services to the complainant and to pay him $1100 compensation.
Refusal to permit use of screen reader technology
A blind man complained that he had been discriminated against when he was not employed after the prospective employer advised him that it could not permit him to use his own screen reader technology (which translates electronic text to audible speech) because the computer program could contain viruses. This was in spite of assurances provided by an expert on behalf of the complainant. The matter was settled with payment of $6000 compensation.
Dismissal of vision impaired salesman
A man who has impaired vision complained that he had been discriminated against by being dismissed from his job as a salesperson. He claimed that the store manager had not discussed any problems with him and had declined offers of assistance from the Commonwealth Employment Service (who had assisted the employee into the position) with resolving any problems resulting from limited vision. More senior management conceded that the store manager should have taken action to try to correct any problems arising from the employee's sight deficiency and noted that they had improved their personnel management to avoid similar situations arising. The complaint was settled with an apology and $6000 compensation.
Refusal of interview when seen to have disability
A man with a mobility disability complained that he had been discriminated against when applying for an advertised position. The employer had told him when he applied in person that there was no position available. When he applied by telephone later that day, however, he was offered an interview. The matter was settled when the employer apologised and agreed to pay financial compensation.
Man with hernia has barrier lifted
A man had a job offer as a linesman withdrawn when hernias were discovered in a medical examination, although the physician advised that these should not interfere with job performance. The complaint was settled with an agreement by the employer to appoint the man to an equivalent position when another vacancy arose.
Concerns about post operative complications addressed
A woman who had had a stomach operation complained that she had been discriminated against when a Commonwealth Government authority rejected her for employment because of concerns about possible complications from the operation. The matter was settled with an agreement to consider a fresh application in the light of a specialist report refuting these concerns.
Franchise complaint settled
A man with a speech impediment complained that he had been treated rudely when seeking information about a franchise operation he was interested in joining. The matter was settled with an apology from the franchisor. (Note: The employment provisions of the DDA do not include franchisor-franchisee arrangements, but at least some franchise arrangements will be covered by section 27 of the DDA dealing with clubs and associations.)
Cosma v Qantas Airways
An employee unable to return to his pre-injury duties after a substantial rehabilitation period was found to be unable to perform the inherent requirements of the job, so no unlawful discrimination had occurred in terminating his employment. Ability to perform inherent requirements was to be measured against the pre-injury job, not against work which had been given during the rehabilitation program: otherwise there would be a disincentive to provide modified duties while attempting rehabilitation.
Darlington v CASCO
Reduction of hours because of injury was found discriminatory.
Crombie v. Commonwealth of Australia
Discrimination was found on the basis of colour blindness. The Commission decided that despite conflicting medical evidence the complainant could in fact perform the inherent requirements of the job. Compensation of $22,524 was awarded.
Ralph v Pemar Pty Ltd trading as Tuncurry Aluminium Windows
$3000 damages were awarded for less favourable treatment at work based on the complainant being an associate of a hepatitis C positive person (his girlfriend).
McDonald v. Hospital Superannuation Board
Discrimination was found against an employee with multiple sclerosis on the basis of derogatory comments found to have been made. Damages of $22,000 were awarded.
Rees v AusAID
A public servant with occupational overuse syndrome affecting her ability to use a computer keyboard complained she had been discriminated against in being refused promotion to a senior officer position. The Commission found that the complainant could have performed the requirements of the job if voice dictation equipment and software had been provided. The employer had not established that use of this software on its network would impose unjustifiable hardship.
Garity v Commonwealth Bank of Australia
Avision impaired employee was found to have been discriminated against in not being given equal access to promotional and training opportunities. $153,500 damages were awarded. This decision also emphasises the importance of the principle of reasonable accommodation in disability discrimination law.
Ryan v Neale Dennis and Dennis Deals Pty Ltd
A woman complained she had been discriminated against by being dismissed from a car detailing job after disclosing to her employer that her husband had died of AIDS. The Commission found she had been discriminated against as an associate of a person with a disability and on the basis of imputed disability and awarded $4000.
Woodhouse v. Wood Coffill Funerals Pty Ltd
The Commission found that a pallbearer who could not carry coffins safely because of his disability would have been able to perform this requirement if he were provided with a small amount of training, which would not have imposed unjustifiable hardship. He had been discriminated against by being dismissed and $16,730 damages were awarded. This decision also discusses the meaning of inherent requirements.
Humphries v. Department of Education Employment Training and Youth Affairs
The Commission found discrimination in failure to provide adequate equipment for a public servant with a vision impairment to be able to word process properly and to pursue promotion opportunities. The Federal Court later held that the Commission had made an error in basing its decision on direct discrimination rather than indirect. When the case was re-heard discrimination was again found and $12,000 damages were awarded.
W v. P Pty Ltd
The Commission found that a job applicant had been discriminated against when an interview was scheduled in an inaccessible building that had sixteen steps despite the complainant informing the respondent of her inability to access such a building. The complainant was awarded $2,130 damages in relation to this interview.
Melvin v. Northside Community Service Incorporated
The complainant was dismissed after ten years employment with the respondent as a child care worker. The dismissal was based on an optometrist's report that Ms Melvin was "legally blind". This did not however address her ability to perform job requirements. The Commission found that Ms Melvin had been unlawfully discriminated against. Evidence indicated she could in fact perform the inherent requirements of the job. Over $56,000 in damages was awarded.
McNeill v. Commonwealth of Australia
A public servant with a vision impairment whose probationary appointment was terminated complained that she had been discriminated against. She required additional equipment including a computer program that magnifies text on screen. Though most of this equipment was requested before or shortly after the complainant commenced work, it was not all fully operational until ten months later. The Commission upheld the complaint and ordered $50,900 compensation. The complainant would have been able to perform the job if the required equipment had been provided when needed.
X v. Department of Defence
The complainant was discharged from the Australian Defence Forces (ADF) after testing HIV positive. The Commission did not accept that an HIV positive soldier could not perform the inherent requirements of the job. However, the Federal Court overruled the decision on the meaning of inherent requirements, and returned the matter for rehearing. The High Court confirmed the Federal Court decision. All members of the High Court emphasised that the inherent requirements of a job include ability to work safely and are not restricted to performance of the physical tasks involved.
X v. Dr. McHugh, Auditor-General for the State of Tasmania
A man with a mental illness complained when his appointment was terminated after difficulties relating to colleagues and clients. The employer had been informed the man had a medical condition but not informed of its specific nature. The President held that the complainant had been discriminated against because of manifestations of a disability. He had not been given a fair chance to show he could carry out the inherent requirements of the job after he returned from sick leave.
Equal opportunity in education presents issues across all types of disability. Education is increasingly crucial to participation in social and economic life. But what has been achieved through the DDA is probably more sharply disputed regarding education than any other area.
Clearly there have been some good outcomes for parents and students who have persisted with complaints. Questions remain however about how far the DDA is achieving its purpose in education more broadly, and whether the costs in time and stress for all concerned could be reduced by more systemic approaches including adoption of standards.
Draft standards on education under the Disability Discrimination Act are currently being considered. The draft standards do not set out time-lines and specifications for making facilities and systems accessible. What they do try to do is set out some broad policy guidelines which assist education providers, as well as adults and children with disabilities seeking education, to be clearer about what does and does not constitute discrimination under the DDA.
In the Commission's view, the draft does not extend the application of the DDA, or of the State and Territory legislation which has applied in most places in Australia for at least as long as the DDA. It is to be hoped these standards progress during 2003.
Education complaint outcomes
Diabetes at school
A mother complained that a school had failed to take reasonable measures to accommodate her daughter's diabetes. The complaint was resolved with an agreement for a diabetes educator to present information to staff at the school, a meeting to be held with a Diabetes Nurse Educator to develop a management plan, and that every endeavour be made to ensure that the girl not be excluded from any program, activity or service provided by the school due to her diabetes.
Medical treatment at school negotiated
A parent of a child with a disability requiring treatment and medication during school hours complained that a public school would not administer treatments unless she signed an indemnity which she refused to do. The matter was settled when the education department advised that it had successfully concluded an agreement with staff representatives so that indemnities were no longer required.
Access to interpreter at school
Parents complained on behalf of their daughter who is profoundly deaf and attends the local primary school. They alleged the education department had failed to provide reasonable accommodation for the girl's disability because it had not employed an Auslan interpreter. The parents claimed their daughter's educational opportunities were being wasted as she could not participate in the curriculum at all without an interpreter. After a conciliation process the department created a new position for a full time Auslan interpreter.
Access to interpreters in tertiary education
A TAFE student with a hearing impairment received interpreter assistance for only four of his seven hours of face to face teaching, with the result that he was forced to withdraw from the course. In settlement of his complaint, the TAFE college provided a written apology and agreed that within six months it would develop a policy to ensure full participation by deaf students.
In another case, a deaf university student was provided with access to an Auslan interpreter for all lectures and tutorials during the student's four year course.
Complaint gets results for blind student
A blind university student complained that one of his lecturers did not provide lecture notes and class material in an accessible format and that the exam was multiple choice which disadvantaged him. He also complained that the lecturer embarrassed him in class by stating that it would take a long time to present material because he had to read everything aloud for the complainant's benefit. The complaint was resolved with a plan of action which included revising the format of the exam and providing the complainant with consideration in relation to his exam results. The complainant sat the exam successfully.
Access to course materials
A student with a vision impairment complained that course materials, while provided in electronic format, were not able to be accessed by the student's screen reader. This meant the student did not have access to course materials at the beginning of the course. The complaint was settled with the university agreeing to make a number of improvements to its services to students with disabilities including the development of a Disability Action Plan, the purchase and testing of improved text conversion software and expanding the role of its Disability Liaison Officer.
A number of similar complaints led the Commission to conduct a forum on access to tertiary education course materials in May 2002. Almost all universities participated, together with disability representatives, publishers, the Copyright Agency, the Attorney-General's Department and the Department of Education, Science and Training. Recommendations were agreed on access to copyright materials, provision by publishers of electronic formats, and better coordination of production and provision of materials in accessible formats. A working party involving the Commission, the Australian Vice Chancellors Committee and other interested parties has been formed to carry these issues forward.
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 by being aggressive, and that the school had taken action only against her son and not the bullies. After a conciliation conference 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.
Accommodation for exams
A woman complained that her son had been discriminated against on the basis of dyslexia and Attention Deficit Disorder when her request for a reading / writing assistant for an exam was refused. The complaint was settled when the education authority agreed to permit an assistant for the exam.
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 challenges including running away which require supervision. Following the Commission's inquiry, the education authority advised that it had increased the level of funding for support services for the child so that the mother would no longer need to fund part of the aide's time herself.
Access by degrees
A university student with a physical disability complained that much of the campus was inaccessible to him due to a lack of lifts, ramps and handrails. The matter was settled when the university agreed to address access issues through an action plan.
Graduation access for parent
A man who uses a wheelchair complained that he had been discriminated against when his daughter's graduation was held in an inaccessible venue. There was no lift and staff had suggested he be loaded into the dumb waiter/goods lift instead. The school apologised and agreed that all future functions would be in accessible venues.
Parents complained that a special school attended by their son had failed to accommodate his disabilities, which include intellectual disability, autism and epilepsy, when he was expelled after serious behavioural problems. The complaint was resolved when the school undertook a series of initiatives including procedures for greater consultation between teachers and parents, development of more specific individual education plans for each child to accommodate different levels of disability, and attendance for all teaching staff at a two-day training course on autism.
Refusal of admission
The parents of a boy with a psychiatric condition complained that he had been discriminated against when he was refused admission to a secondary college after the principal formed the view that he was unsuitable for mainstream schooling. After a conciliation conference the college apologised and paid $5,000 compensation.
School enrolment secured
A mother complained that 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. The complaint was withdrawn when the trial was successful to the satisfaction of all parties.
Physical access to TAFE classes
A man with a disability complained regarding physical accessibility of classes at his local TAFE college. The matter was settled when the TAFE advised they would schedule classes for ground floor rooms or lift accessible buildings wherever possible.
Participation in school camp
A secondary student with an intellectual disability was refused permission to attend some days of a school camp because there was no funding for an integration aide to assist him on those days. The complaint was resolved on the basis that the school would permit attendance for the whole period using the assistance of a volunteer, and would provide an integration aide for the whole period of the next year's camp.
Bishop v Sports Massage Training School
Discrimination was found in failure to accommodate dyslexia in exam procedure by providing extra time; $3000 damages were awarded.
Finney v Hills Grammar School
An independent school was found to have discriminated in refusing enrolment of girl with spina bifida. The defence of unjustifiable hardship was not established. $42628 damages was awarded for discrimination in refusing enrolment. The Federal Court upheld this decision.
W v. Flinders University of South Australia
The Commission dismissed a complaint of discrimination in education. Problems in satisfying course requirements may have resulted from the complainant's disability but this did not mean there had been discrimination. Where accommodations of disability had been requested they had been granted where this was consistent with the academic integrity of the course.
Kinsela v. Queensland University of Technology
A student who uses a wheelchair complained that he would not be able to participate equally in the graduation ceremony because it was to be held in an inaccessible venue. Even though arrangements could be made to accommodate him on stage, he would not be able to participate in the procession with his year group and be part of the experience of receiving his degree in the same way as everybody else. The Commission ordered that the graduation ceremony be moved to an accessible venue.
Greg Beattie (on behalf of Kiro and Lewis Beattie) v. Maroochy Shire Council
Exclusion of non-immunised children from a child care centre was found to be reasonably necessary in the interests of public health.
Purvis v State of NSW
The Federal Court reversed a Commission decision that a school had discriminated by failing to respond appropriately to behavioural disabilities. Exclusion because of behaviour was not direct discrimination because of disability. The complainant was not treated less favourably than other students who behaved the same way would have been treated. There was however possible indirect discrimination, subject to consideration of the reasonableness of behavioural requirements.
Travers v State of NSW
Failure to make the nearest accessible toilet available was found to be unreasonable and discriminatory. $6250 damages were awarded.
Many of the complaints brought under the DDA regarding access to premises have been about shops and shopping centres, bars, restaurants, and other places where goods and services are obtained - that after all is often why people want to be able to get in, not just to admire the building. A smaller number of complaints have been made about discrimination in the way services are provided. The experience of discrimination at an individual level is described in this article by Mr John McKenna:
Sorry you can't come in
My disability has been with me since birth so the daily challenges presented by an inaccessible world are naturally part of my everyday life. Using an electric wheelchair means I face issues surrounding access to public areas such as retail outlets, clubs, entertainment venues, and naturally public transport.
I continually experience two types of "sorry you can't come in" scenarios. The first one revolves around structural issues, for example the lift is broken or the door is not wide enough. The second scenario revolves around people's attitudes, for example, a variety of negative and upsetting statements such as, "you will offend our clients", "we are not set up for people like you", and the most common one, totally ignoring my presence.
The structural issue scenarios are sometimes the more challenging ones to rectify for obvious reasons. But no way can anyone make excuses for people's attitudes. Smoke really comes out of my ears when I experience a mix of both scenarios, for example when I'm told, "we don't know if the lift works as we have been using it to store our cleaning equipment for the past couple of years."
Public transport has been such a focus that it is addressed separately in this publication. Information on telecommunications services is also presented separately.
As discussed in relation to the Commission's public inquiry on electronic commerce, banking services have also been a major focus of complaints and of policy activity from the Commission and from industry.
A number of complaints have been made about accessibility of provision of services and information through the internet. Because of the increasing importance of this avenue and the potential it offers to provide access for people with disabilities in particular, the Commission has issued guidelines on world wide web page accessibility. Access in this area was also one of the major themes of the Commission's inquiry on electronic commerce and related areas.
Access to banking services
A woman who is blind complained that her bank had discriminated against her by not providing accessible banking services, specifically accessible Automated Teller Machines (ATMs) and Internet banking services. The complaint was resolved when the bank advised that it was participating in industry efforts to find solutions, including industry working groups to establish industry standards for ATM's and Internet Banking as well as Interactive Voice Response and EFTPOS, arising from the Commission's accessible e-commerce inquiry. It was also in the process of improving accessibility for people with disabilities by introducing standard screen functions across the ATM network and was developing an audio output ATM.
A similar later complaint was settled when the bank agreed to adopt an industry standard on ATM access which had recently been negotiated with assistance from the Commission.
In another case, a man who uses a wheelchair complained that he was unable to use automatic teller machines at his local bank branches because of the positioning of the keyboard. The complaint was settled when the bank installed an accessible ATM at one of the branches and advised that this was part of a wider program of replacing 700 ATMs with new machines designed under Americans with Disabilities Act requirements to be accessible to people with physical or vision impairments.
Ticket dispensing machines reviewed
A woman who uses a wheelchair complained that her bank had installed a ticket dispensing machine which she was unable to access because she could not reach the ticket dispenser. The complaint was resolved with the respondent agreeing to engage the services of a design engineer to ensure the dispenser complied with relevant Australian Standards.
Video hire membership
A young woman with an intellectual disability complained that she 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. The complaint was settled with an apology and payment of compensation.
Access to credit facilities for man unable to sign name
A man who has cerebral palsy complained that his bank had discriminated against him by refusing him a Bankcard because he was unable to sign his name. The complaint was settled with agreement to alternative arrangements including a phone banking account and an overdraft facility operated by pin number.
HIV status and loan application
A complaint about a requirement to declare HIV status on a loan application and consequent refusal to provide the loan was settled on terms of $5000 compensation, an apology and agreement to amend relevant policies and forms.
Supermarket access improved
A man who uses a wheelchair complained that a Sydney city supermarket was not accessible to him. Entry was through turnstiles which he could not use. An alternative entrance gate was locked and unattended. When he succeeded in entering after some delay he was unable to use the checkouts which were too narrow. The matter was settled when the supermarket agreed to install automatic doors in place of the turnstile entrance; widen one of six checkout lanes to accommodate customers using wheelchairs; and install signs indicating the accessible entrance and checkout.
A woman with a disability complained that a priest at a place of worship had told people in wheelchairs to sit on the floor as this was the rule in temples in India. The complaint was settled when the religious organisation advised that the incident had been an error by a visiting priest who was not aware of the organisation's policy which did permit adjustments to general practices to provide access.
Web site access
A woman who is blind complained that a real estate information site was inaccessible because it could not be read by screen reader software. The complaint was resolved when the organisation which maintains the site made changes to ensure accessibility.
Higher price for accessible cruise cabin
The daughter of a woman who has had a stroke and uses a wheelchair complained that she had been discriminated against on the basis of the mother's disability when she booked cabins on a cruise boat. Only outside cabins, which were higher priced, were accessible, and there were also access problems with an associated tour. After a conciliation conference the complaint was settled with an agreement to reimburse the cost of the tour and improve accessibility information.
Conference registration fee for carer refunded
A woman with a disability complained that she had been discriminated against by the organisers of a conference in that she had been required to pay an additional registration fee for her attendant carer who was not participating in the conference. The respondent apologised, refunded the additional fees, and adopted a policy that registration fees would not be charged for carers or support persons accompanying a conference participant with a disability.
Truck driver's licence
A man complained he had been discriminated against when he was refused a heavy vehicle licence because he did not meet the visual acuity standard prescribed. The complaint was settled when the licensing body advised that a review of requirements meant the man could now be tested for a truck licence.
Deaf access to tourist experience
Two deaf people complained that they had been discriminated against when a tourist adventure experience failed to provide them with Auslan interpreting or a printed copy of the commentary provided by the guide on the experience. The matter was settled when the respondent advised it had made arrangements as follows: two sessions per month with interpreting provided; trials of a hearing loop on the experience; a booklet for deaf participants and a summary sheet of instructions for the experience; and free participation for the complainants to enable them to provide feedback on these arrangements.
Enforcement of accessible parking spaces
A woman with a mobility impairment complained that use of accessible parking at her local supermarket was not policed, so that these parking spaces were in practice seldom available for people with disabilities. The complaint was settled when the store advised it had commenced a trial of enforcement by council officers in co-operation with the local council.
Access to regulatory documents
A number of people with vision impairments complained that an agency issuing a draft regulatory document with particular relevance to vision impaired people had refused to provide this document in Braille. The matter was settled when the respondent agreed to provide a Braille version and to extend the consultation period.
Physical accessibility of fast food chain
The mother of a girl who uses a wheelchair complained that most of the local restaurants of a major fast food chain were not accessible. Because of fixed seating the girl had to sit in the aisle, blocking access for other patrons and requiring meals to be interrupted frequently for her to be moved to let them pass. In some restaurants she was unable to eat in the dining area at all. Heavy front doors made it difficult for her to enter. In most of the restaurants the toilets were not accessible. Some of the restaurants lacked an accessible route from parking spaces to the restaurant.
The complaint was settled with an agreement to prepare and implement an Action Plan which provided for an access audit of all sites, access improvements by the company at sites operated by itself, and the company to assist franchisees to undertake improvements at franchised sites. A number of modifications to particular restaurants were also agreed and implemented.
Access to choice of goods
A woman who has rheumatoid arthritis complained that she was unable to choose from a selection of goods available on the second floor of a local store as she is unable to use stairs. Staff were prepared to bring samples down for her but this was time consuming and provided only partial access. The complaint was resolved when the store rearranged displays to provide a wider range on the accessible floor.
Access to cafe service
A man who uses a wheelchair complained that he was discriminated against by the lack of access to the inside area of a Sydney city café, which was up five stairs. The matter was settled when the proprietors agreed to install a buzzer at an accessible point to enable patrons requiring service at outside tables to attract attention.
Theatre accessibility improved
A young woman who uses a wheelchair because of multiple sclerosis complained that, when she went to a major Sydney theatre, wheelchair accessible seating was only available in the highest priced area and she had been seated distant from her accompanying person. The complaint was settled when the theatre provided five additional wheelchair spaces with removable seating to enable patrons with a disability to sit with friends or other associates; reconfigured the area to provide more room; appointed an access consultant to work on further access improvements and arranged for accessible seating to be available in all price ranges.
In another case, a man who uses a wheelchair complained that the choices available to him for seating at an entertainment centre were very restricted, and that he was unable to sit next to his wife. The complaint was settled with an agreement that there would always be a seat for an associate next to each designated wheelchair position and patrons using wheelchairs would also be able to sit immediately behind seats for other family or friends, depending on booking availability.
Hotels provide television captioning
A woman with a hearing impairment complained that a hotel she stayed in did not provide text facilities on in-house television for movies, cable television etc. The complaint was resolved when the hotel agreed to install 3 teletext televisions into the hotel, and to install further teletext televisions into all hotel rooms as televisions require replacement. Availability of caption facilities would also be publicised.
A number of similar complaints led to similar agreements by other hotels during 2001-2002, including one chain which agreed to install teletext facilities in 10% of all rooms and to give a 15% discount to deaf people until that target was achieved.
Hand controls for hire car
A man complained that he was unable to hire a car fitted with hand controls, which he required because of his disability, when he visited a major rural centre. The car hire company agreed to provide a car with hand controls on reasonable notice.
Guide dog on tour
A man who is blind complained he had been discriminated against when a tour operator refused to allow him to be accompanied by his guide dog on a mini bus tour. The matter was settled when the operator apologised, agreed to a change of policy to permit guide dogs in future and paid several hundred dollars compensation.
Viewing of body of HIV positive man
An associate of a man who died of an AIDS related illness and had hepatitis C complained that she had not been permitted to dress his body or have the body viewed at the funeral. The complaint was settled when the union concerned advised that it had changed its policy so that members would handle, dress and allow viewing of HIV or hepatitis C positive people, and that further discussions would be held with health authorities regarding other procedures.
Shop apologises to man asked to leave because of burn scars
A man with burn scars complained that he had been told by staff in a shop that he was "scaring other customers away". The matter was settled with an apology.
Maguire v SOCOG
A man who is blind complained about the failure to produce the Olympic ticket book in Braille. The Commission found that the ticket book was so complex that having the print version read out either by SOCOG's telephone help line or by friends or family was not an effective substitute. The electronic version provided at a late stage was not formatted for accessibility. The Commission rejected an argument of unjustifiable hardship, noting that the cost of printing and distributing the ticket book was $7.18 million compared to a cost of up to $17,500 on the preparation of perhaps 200 copies in Braille. The Commission ordered subsequent ticket books to be provided in Braille.
In subsequent hearings, SOCOG's web site, which was inaccessible to blind people using screen reader technology, was found discriminatory and $20,000 damages were ordered when SOCOG failed to rectify this prior to the Olympics.
X and Y v. The State of Western Australia
Two HIV positive prisoners alleged denial of educational opportunities, work opportunities, sport and recreation, and on one occasion, access to medical treatment due to a policy of segregation of HIV positive prisoners. The Commission rejected arguments that segregation was necessary in the interests of public health.
Access to telecommunications services and equipment is obviously increasingly critical for access to employment, education, and social participation.
The issue of equal access to telecommunications for people who are deaf or have hearing impairment, and for people with a disability generally, has been high on the lobbying agenda of disability organisations in Australia. No issue received more political attention during the passage of the DDA through Parliament. Again, however, it was a simple individual complaint - albeit supported by a representative organisation and by one of the disability discrimination legal centres - which had the most impact.
Mr Scott, who is deaf, complained that Telstra had discriminated against him on the ground of his disability by not providing a telephone typewriter (TTY) in his home on the same basis on which handsets were provided to other domestic users of the telecommunication service. Commission President Sir Ron Wilson found that Telstra had discriminated against Mr. Scott, and against all other persons in his situation. He ordered that Telstra provide Mr. Scott with a TTY, and that there be a further hearing on how Telstra could avoid such discrimination in the future.
Once Telstra had accepted that there had been unlawful discrimination they were very enthusiastic about finding solutions to this and many other service delivery challenges. The solution they adopted was to provide a voucher to all people who were eligible, that is who were profoundly deaf or who had significant speech impediment so that they were not able to use a telephone. The voucher would allow them to buy a TTY, which would be replaced in five years. Shortly afterwards Telstra decided to produce an Action Plan for equal access across the full range of their services. Since then the corporation has revised its Action Plan regularly.
Another far reaching outcome of this matter has been that disability access requirements have been incorporated, at least in general terms, in the definition of features of a standard telephone service. This is still only a part of the full picture of equal access to telecommunications - since the standard telephone service and associated obligations do not cover mobiles for example or other newer equipment and services - but discussions are continuing between the Commission, 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, as noted earlier in this publication, complaints regarding access to mobile phones for people who use hearing aids were investigated by a public process which led to each of the major service providers adopting schemes to improve access and consumer information.
Other telecommunications complaint outcomes are summarised below.
Mobile phones for disability pensioners
A man who receives a disability pension complained that because of this he had been refused service by a mobile phone provider. The company confirmed that it did not service people who receive disability pensions (or sole parent pensions) because it regarded them as presenting too high a risk of non-payment. After a conciliation conference the company agreed to provide service to the complainant.
Fee waived for easy call facility
A man who has cerebral palsy complained that he was charged an extra fee for easy dial facilities which for him were essential to be able to use the phone, rather than being an add on feature as for other customers. The complaint was settled when the telecommunications company agreed to waive the fee for this facility for people whose disability made dialling difficult.
A woman who is blind complained that her mobile phone bills were not provided in a form accessible to her. The complaint was settled when the telecommunications company agreed to provide bills in Braille.
Physical access to payphones
A man who has a disability requiring him to use a wheelchair complained that he was being discriminated against in provision of services and facilities in that new public payphones were too high for him to use. The complaint was settled when Telstra advised that booths would be modified with a bracket to allow installation of lowered payphones, and that an Action Plan was being developed which would address accessibility of payphones further.
The DDA permits insurers to make distinctions based on disability, but only where this is reasonable. Obviously, this leaves much open to interpretation.
To assist in giving this provision more definite meaning, guidelines on the application of the Disability Discrimination Act to insurance and superannuation were developed during 1997 in cooperation with relevant industry associations and in consultation with disability community representatives. These guidelines were adopted by the Commission in March 1998 and are available on the Commission's website.
In response to requests from the Mental Health Council of Australia and the national depression initiative "beyondblue", the Commission consulted interested parties on a proposal for it to conduct an inquiry into reports that people who have experienced a depressive illness or anxiety disorder are refused cover for insurance, in particular life insurance, disability and income protection insurance, health insurance, travel insurance, and loan protection insurance, or are offered cover only at very substantially higher premiums.
The proposed inquiry was deferred when the major industry body, the Investment and Financial Services Association (IFSA) advised that it was prepared to auspice a cooperative process to work on issues in this area. The Commission is continuing to work with IFSA and the Mental Health Council of Australia on a range of measures to improve insurance access for people with depression. This process may also have benefits in improving insurance access regarding other areas of disability.
Insurance and superannuation complaint outcomes
Insurance and post natal depression
A woman who had experienced post-natal depression (PND) complained that she had been discriminated against by being refused insurance. The insurer responded that it assessed PND based on underwriting manuals which do not make distinctions as to cause of depression. After a conciliation conference the insurer agreed to provide insurance coverage at standard rates as she was able to provide medical evidence that she had recovered from PND. The insurer also agreed to pay compensation, and to write to the international underwriting companies it deals with to highlight the fact that PND has different effects and duration to other forms of depression.
Death and disability cover secured with limited exclusion clause
A woman with a psychiatric disability complained that she had been refused death or disablement cover because of her disability which she had disclosed to the insurer. In conciliation the insurer advised it was prepared to insure the complainant provided she submitted a medical report regarding risks arising from her disability. The respondent subsequently provided her with insurance cover with no restriction on death but with a restriction for permanent disablement arising from her current disability. This resolved the complaint.
In another case, a carpenter complained that he had been refused accident / sickness insurance because of a single psychotic episode eighteen months earlier. The complaint was settled when the insurer offered cover with an exclusion clause covering psychotic illness.
Better communication about insurance eligibility
A woman with bi-polar disorder complained of discrimination after her application for mortgage protection insurance was refused. At a conciliation conference it was agreed that she should have been provided with better information on the reasons for declining her application and on alternative products for which she could have been eligible. The insurer apologised and paid $5000 compensation.
Income protection insurance and HIV risk
A gay man complained he had been discriminated against on the basis of an imputed future disability (that is, the risk that he might become HIV positive) when an insurance company refused to give him income protection insurance, even with an HIV exclusion clause (which the complainant was prepared to accept), for longer than a two year period. The matter was settled when the insurer advised that it was prepared to remove the two year limitation and issue the policy as requested.
In another case, a man complained that he had been refused income protection insurance after disclosing that he was homosexual and had been in a relationship with a HIV positive man, although he himself was HIV negative. The matter was settled with an apology, compensation of $8500 and insurance being issued subject to an HIV exclusion clause.
Blindness and income protection insurance
A computer programmer with a vision disability which may result in his being totally blind in a few years complained when his applications for income protection insurance were refused. He was seeking income protection against illness or accident rather than against his possible blindness. The complaint was settled when the insurer provided disability income insurance with a blindness exclusion.
In another case, a woman complained that she had been discriminated against when an insurer advised her that she would be ineligible for income protection insurance because of her vision impairment. The matter was settled when the insurer provided an apology and $2000 compensation, and undertook to consider a fresh application.
Loan insurance for woman who had had melanoma
A woman complained that she had been discriminated against when she was refused loan insurance after disclosing on the application form that she had been treated for melanoma. The tumour had been removed 14 years previously without recurrence or spread. After an additional medical report was obtained the insurer agreed to provide cover for the remaining period of the loan without charge.
Travel insurance for mental disorder
A man complained that he had been discriminated against when his insurer refused to pay a claim on a family travel insurance policy after his son had a panic attack in flight and the family had to return home. The claim was refused on the basis that the claim arose from a mental or nervous disorder which was excluded by a clause in the policy. The matter was settled by payment of medical, travel and accommodation expenses.
Endowment insurance for boy with Tourette's syndrome
A parent complained that his son had been discriminated against by being refused life insurance/endowment insurance cover on the basis that he had Tourette's Syndrome and attention deficit disorder. The insurer agreed to provide the cover as applied for, and to update its assessment manual to include these conditions.
Employer complaint achieves superannuation cover for employee
An employer with a vision impairment complained on behalf of an employee that the employee had been discriminated against in the terms and conditions of membership of a superannuation fund. The employee had applied for and been refused additional cover beyond his automatic entitlements. The complaint was settled by an agreement to provide the additional cover subject to exclusion clauses which restricted benefits payable in respect of eye diseases or disorders.
Restrictions reduced on superannuation
A university lecturer who has multiple sclerosis complained that she was being discriminated against because the superannuation fund of which she was compulsorily a member limited her benefits not only in relation to her pre-existing condition of MS, but regarding any other illness or disability. The matter was settled when the fund advised that restrictions would be removed.
Bryant and Nagy v Cuna Mutual Group
The brother and sister of a man who had died complained that an insurer was discriminating on grounds of their late brother's HIV status in failing to pay on a loan insurance policy. The Commission decided that the beneficiaries of a deceased person's estate should be able to complain of discrimination against them as associates of a person with a disability despite that person's death.
Accommodation complaints have overlapped with those made under the access to premises provision of the DDA, covering issues such as hotel room accessibility. The accommodation provision also extends to premises which are not necessarily open to the public, such as rental accommodation, as well as accommodation specifically for people with disabilities.
This area however is one which shows most clearly the limitations of the DDA as a discrimination law rather than one which guarantees fundamental human rights more broadly. No strategy has yet been found to use the DDA effectively to ensure adequate levels of provision of accommodation for low income people with disabilities, or people with particular support needs, or young people with disabilities to prevent them being consigned to aged care.
The complaints summarised below therefore represent only a small slice of needs in the accommodation area.
A man complained on behalf of his mother in law that her application for hostel accommodation was rejected because she had insulin dependent diabetes. The respondent claimed that it was unable to accommodate her because the staff at the hostel were not medically qualified and would not be able to assist her to administer insulin or change her dosage if required. In conciliation it was agreed that the woman would be placed on the waiting list for accommodation subject to specialist assessment of her care needs and the hostel's capacity to meet them.
Air conditioning as reasonable adjustment
A man who has paraplegia and thus has difficulty regulating his body temperature complained that a public housing authority had refused to install an air conditioner although other tenants had adjustments provided to accommodate other aspects of disability. The complaint was settled when the authority changed its policy to cover installation of air conditioners where required by a person's disability.
Access improved in public housing unit
A woman who has limited ability to walk so that she uses a motorised "gopher" to get around complained that she had been allocated a public housing dwelling which was inaccessible to her because of lack of ramp access, no place for her to house the "gopher" and uneven and broken paths creating a risk of her falling. The matter was settled when the housing department advised that it had constructed new paths, installed a shed for the gopher, and installed ramp entry to the house, as well as undertaking door improvements and other access improvements inside the house.
Hotel disability access improved
A woman who had a temporary disability due to a broken foot complained that she had been discriminated against by a major Brisbane hotel, when she sought to book a room with a walk-in shower and was advised that the only room available would require her to upgrade to a more expensive room. The matter was settled when the hotel agreed that no additional fee would be charged where a room upgrade was necessary to accommodate a guest's disability; one suite's shower would be fitted with hand rails, temperature regulator and shower seat; two accessible rooms would be included in the next floor refurbishment; and added emphasis would be given to disability awareness in staff training.
Additional fee for disability access removed
A man who uses a wheelchair complained that he had been discriminated against by being charged an additional fee for use of the accessible accommodation at some holiday cottages. The matter was settled when the new owners of the cottages advised that no such additional fee would be charged by them.
Complaint resolved with assistance to find alternative accommodation
The wife of a man with a manic condition complained that the real estate agency which managed the property where he lived had taken steps to have him evicted. Evidence indicated he had behaved very disruptively and made threats against other tenants. The complaint was settled on the basis that the agent would make reasonable efforts to assist the man to find alternative accommodation.
HIV support group granted lease
A support organisation for people who are HIV positive complained that they were being discriminated against on the basis of the disability of their members and associates when they were refused a lease on premises. The lessor had expressed concern that people in the support group who might have acquired HIV through drug use could pose insurance problems. The complaint was settled with the group being allowed the lease.
The number of complaints made specifically under the clubs provision of the DDA has not been large, although some access to premises complaints have involved access to clubs. This provision remains important, however, because it confirms that the DDA is about equality for people with disabilities in all aspects of social life.
Getting on air
A man with a reading disability complained that the community radio station with which he works was not providing him with the same access to training in on air presenting as other members. The complaint was settled with an agreement to train the man with volunteer assistance.
Watching the game
The husband of a woman who has Alzheimer's disease complained that she had been banned from watching him play at their bowls club on the basis that her presence upset other members. The complaint was settled with an apology and a decision to allow her to continue attending.
Soulitopoulos v Latrobe University Liberal Club
The constitutional validity of the DDA was upheld applying to clubs. Disability discrimination was confirmed as a subject of international concern and hence as within the federal legislative power regarding external affairs.
The number of complaints regarding sport has been relatively small, but participation in sport is obviously an important aspect of participation in Australian life for many people including people with disabilities.
Sport conciliation outcomes
Golfers with disabilities
A woman who had a leg amputation complained that she had been discriminated against when the board of her golf club decided she could not use the club's motorised cart during play. The complaint was resolved when the club reversed its decision.
In another similar case a man who has an above knee amputation complained that a requirement that he walk in 36 hole golf competitions was discriminatory. The complaint was settled when the club waived this requirement.
Access to mainstream competition
A Paralympian powerlifter complained that he had been denied access to mainstream competition. The complaint was withdrawn when the Australian federation undertook to discuss the eligibility rules with the international body which controls the sport.
Bowling alley access
A woman with epilepsy complained that she had been told not to come back to a bowling alley after she bowled a ball hastily so she could sit down when she had felt a seizure approaching. At a conciliation conference the bowling centre agreed that the complainant was welcome to return, and paid her $1500 compensation.
Access to soccer skills program
A mother complained on behalf of her son with cerebral palsy when he was refused enrolment in a soccer skills program. He is a keen soccer fan and has had his wheelchair modified to enable him to play soccer at school. At a conciliation conference the respondent apologised to the boy, agreed to enrol him for a year free of charge, and to modify its enrolment practices.
Darts player scores rules change
A woman with a back injury complained that she was discriminated against by her sporting association requiring that players travel together to competition events, since she was unable to take long journeys by bus. The matter was settled when the association changed its rules to permit exceptions on medical grounds.
Motor racing licence for diabetic man
A man who has insulin controlled diabetes complained that he had been discriminated against when his motor racing licence was restricted by the Confederation of Australian Motor Sport (CAMS) to races of 20 minutes or less. It was agreed that the complainant had been racing without incident for seven years and had been responsible in managing his condition including being prepared to install a glucose delivery system in his car. The matter was settled when CAMS advised that it had reviewed the decision in the light of further medical evidence and revised regulations from international motor racing authorities. The restriction on the complainant's licence was removed on condition that he provided regular specialist reports.
Rigon v CAMS
The Commission found that a racing driver with vision in one eye had been discriminated against when his licence was suspended. The licensing body's rules required one eyed drivers to have a greater field of vision than is normal for two eyed drivers. Expert evidence indicated that the complainant's field of vision was sufficient.
The Commission's goals for the next ten years of the DDA are simple to state, however challenging they may be to achieve:
- To continue the expansion of opportunity and access for people with disabilities and the elimination of disability discrimination across Australia
- To keep moving forward in areas of success, such as transport and access to premises, while seeking more effective strategies in other areas such as employment and for sections of the disability community who are benefiting less than others from the legislation.
Policy processes including public inquiries, negotiation of standards, and shaping legal precedents through the intervention and amicus curiae functions, will remain highly important to these goals.
However, the main driver of change towards a more accessible and equal Australia remains the complaint process and the ability of people with disabilities to use it effectively to pursue their own aspirations.
To close this publication, therefore, we include here a story from one complainant, Mr Bruce Maguire, on his experiences in using the DDA to seek equal participation in the Sydney Olympics.
One of the most lasting memories that I have of my 17-month DDA complaint against the Sydney Organising Committee for the Olympic Games (SOCOG) is of a talkback radio programme that was broadcast just after SOCOG were found to have discriminated against me by their refusal to provide the Official Olympics Ticket Book in Braille. The radio discussion began with an interview with me, during which I explained that being able to access information is a right, not a privilege, and that if the Olympics were indeed the "games for all Australians" as they were being promoted, then I as a blind person had as much right to study the complex information about event schedules and ticket availability as anyone else. After the interview, a number of callers rang in to express their opinion. One woman said, "I don't know what it must be like to be blind, and my heart goes out to them - but he should get someone to read him the book". Shortly after this, a blind man rang in and said, "That Maguire's nothing but a bloody troublemaker: doesn't he realise that we just have to accept things and not rock the boat".
In their different ways, these two callers were expressing the same underlying belief: while disability may be part of the reality of human experience, any suggestion that people with a disability can or have the right to participate with full equality is subversive, and runs counter to "the natural order of things". Putting it another way: while we are all part of the one river, people with a disability should be content to live in the backwaters rather than in the mainstream, gratefully accepting the benevolence of people who do have the right to live in the mainstream and enjoy the benefits that flow from that right. Moreover, if we try to tamper with that "natural order of things" by doing things like putting Olympic Ticket Books into Braille, then who knows what will happen - the whole fabric of society might unravel before our eyes and under our fingers. For the woman whose heart had gone out in search of blind people to sympathise with, and for the blind man who enjoyed life in the tributaries, I embodied their greatest fear - fear of the unknown.
SOCOG's response to my DDA complaint was also based to a considerable extent on fear, in this case, fear that if they made the slightest concession to me as a blind person, then who knows where it would end. At one stage, they said that if they provided a ticket book in Braille for me, then all the other 36,000 people in Australia who are blind or vision-impaired would also want one. "So?", I replied, but I then went on to explain to them that the vast majority of those 36,000 are not Braille readers and, in any case, not all Braille readers would want a ticket book, just as not all 18 million print readers in Australia wanted a print copy (only 2 million print copies were produced). SOCOG chose not to listen, just as they chose to adopt the most adversarial approach possible in responding to the other aspects of my DDA complaint, which concerned their failure to produce the Official Olympics Souvenir Programme in Braille, and their failure to design the Official Olympics website in a way that allowed blind people to access it.
Along with this fear of unimaginable consequences, there was also, I think, a sense of outrage that I, a person with a disability, would dare to challenge the planners of the most prestigious sporting event on earth - such a challenge isn't part of the natural order of things.
The memory of the radio programme has stayed with me because it helped me to see that my DDA complaint had a wider dimension. I had lodged it for very personal reasons: I wanted to be able to participate in the spirit of the Olympics just like everyone else; I wanted to be able to project a positive image of independence and active involvement to my children - I wanted them to see that I, as a blind person, could do the things that other fathers were doing, that is, planning their attendance at the Olympics.
As someone who has detailed knowledge of Braille production techniques and a reasonable grasp of the principles of accessible web design, I knew that what I was asking SOCOG to do would be neither difficult nor expensive to achieve. It came as a real shock to find that not only was SOCOG not prepared to do anything by way of addressing the issues in my complaint, but that they were prepared to attack my honesty, challenge my integrity, and do whatever they could to delay the hearing of the complaint. Because my requests seemed so reasonable to me, I was unprepared to deal with the adversarial tactics that SOCOG used, and it was only when I realised that I was advocating not just for myself, but also for a view of disability that rejected the "natural order of things" beliefs put forward in that radio programme, that I was able to strengthen my resolve to see the complaint through to the end. It wasn't so much "my complaint" as "our complaint" - a complaint that challenged negative attitudes about people with a disability generally.
The DDA has done much, in my opinion, to dispel the vision of people with a disability as denizens of the backwaters. I'm sure that I would not have lodged my complaint had I not had some exposure to the principles of equality and access promoted by the Act. While I have never accepted statements like "you can't do that because you're a blind person, and blind people can't do that", the passage of the DDA marked a turning-point in my thinking, because it provided an unequivocal demonstration that marginalisation of people with a disability is no longer part of the natural order of things. Paradigms take time to change, of course, but there is an inevitability about the change from backwater to mainstream that will become increasingly clear as the aims and objectives upon which the DDA is founded are woven more seamlessly into the social fabric.
It took 17 months for my complaint to be fully dealt with by the Commission. It could have been resolved much more quickly had SOCOG been interested in conciliation. Not surprisingly, this period was a stressful and hectic one, and there were times when I had to devote many entire days to preparing statements, researching technical points, giving media interviews, and answering the many emails that I received from around the world. At one stage, we organised an Internet-based petition urging IBM (the company contracted by SOCOG to design the Olympics website) to make the website accessible. Because I lodged my complaint without any idea that it would develop in the high-profile way that it did, much of the strategy had to be worked out when the need arose, with little time for reflection or forward planning. This certainly contributed to the stress of pursuing the complaint, but given that my motivation in lodging it was more about a personal wish to be involved fully and independently in the spirit of the Olympics than about the achievement of systemic change, I don't believe that any other approach was possible at the time.
The DDA complaints mechanism has been designed to minimise the amount of stress and formality that individual complainants will experience, and as the aims and objectives of the DDA become ever-more universally acknowledged, this stress is likely to be reduced even further. In some ways, the SOCOG complaint was lodged and pursued in unique circumstances: the Olympics were a one-off, high-profile event for Sydney; SOCOG were a specially-created organisation with a limited lifespan that made them less inclined to care about negative publicity; the complaints process itself was undergoing change as functions previously performed by the Commission were transferred to the Federal Court and Federal Magistrates Service. This combination helped shape the way in the complaint progressed, and, to some extent at least, the eventual outcome (SOCOG were found to have discriminated against me by not providing a Braille ticket book and by not making their website accessible; these findings were more-or-less ignored by SOCOG, although they did eventually produce a Braille version of the Souvenir Programme).
Many people have told and written about their stressful experiences with legal processes. What is less common, however, is discussions about the aftermath of those processes. For me, the period after the complaint had been finally adjudicated and finalised was a very depressing one. It was certainly extremely gratifying to have had my complaint upheld, and my integrity vindicated. But I did not have a Braille ticket book, and I had not been able to use the website during the Olympics in the way that other Australians were. In a broader sense, I felt that Australia had lost a unique opportunity to show itself to be a world leader in including people with a disability as part of our information-based society. Most of the contacts I made with journalists, politicians, and individuals and organisations around the world during my complaint were temporary and purpose-based. As I reflect now on that period, I am convinced of the need for peer support, not just during the complaints process, but also once it is over.
The journey along the road of advocacy can be a solitary one in the absence of companionship, support and encouragement. That encouragement eventually came for me from Anita Roddick, the founder of the Body Shop chain. I read her book Business as Unusual and also heard her interviewed on ABC radio. She makes a compelling case for advocacy, and her observation that "advocacy is the rent we pay for living on the planet" has served as a personal affirmation for me since I first heard it a couple of months after my complaint had finished. I also realised that one person's actions can make a difference, but, more importantly in some ways, a person's inactions also make a difference.
My decision to lodge a DDA complaint set in motion a series of events that I could not foresee and the positive effects of which are still to be seen in the increasing interest in web accessibility and the availability of public documents in alternative formats such as Braille. Had I chosen not to lodge the complaint, there would also have been events that I could not foresee. In other words, my choice to do something had an impact, but my choice to do nothing would also have had an impact. The myriad interconnections between events and actions ensure that we all have an effect - multiple effects - on the world, whether we like it or not, and regardless of our choices. Advocates cannot always predict what the ultimate effects of advocacy will be, but they can be sure that there will be effects.
The impact of the DDA, then, cannot be measured simply in terms of numbers of complaints, or individual successes and failures. Rather, the full impact of the DDA is to be seen in the many subtle and immeasurable ways in which it is helping to shape attitudes and replace the paradigm of benevolence with one of equality. Without this emancipatory vision promoted by the DDA, I would almost certainly not have challenged SOCOG. During the course of the complaint, I came into contact with literally hundreds of people. In a real sense, those contacts would not have occurred without the DDA that empowered me to lodge the complaint. I know that at least some members of the public came to see that people with a disability have a right to full participation, because people came up to me in the street, and called me on the phone, to tell me.
So if one complaint can affect so may people indirectly, the impact of the DDA over the past 10 years must have been awesome.