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Australian Association of the Deaf National Conference

Disability Disability Rights

Australian Association of the Deaf National Conference

Adelaide, 3 November 2006

Introduction

I'd like to start by acknowledging the traditional owners of the land on which we meet.

I think it's always good manners to make this acknowledgment. But at a Deaf community event it's also an important reminder that the rate of deafness and hearing impairment in some indigenous communities - over 30% - is even higher than it is throughout the community as a whole.

At the same time I join with you in celebrating the distinctive culture developed by Auslan speaking Australians, I also remind myself that deafness and hearing impairment, like other forms of disability, are part of life in every part of the Australian community.

And, as you know , as individuals as we age it becomes more and more likely that hearing impairment along with other disability will be part of our own experience.

So building accessible and inclusive communities now is about the future for all of us.

I'd like to talk today about how we are doing in achieving progress towards equality and access, particularly in information and communications access for deaf and hearing impaired people.

Big social changes don't always happen overnight when a law is passed .

Even with almost 14 years having gone by since the DDA was passed, there are not many issues of access and equality where I can say to you today that it's all signed sealed and delivered.

But I can talk about some signs of the times, and see if we can sign up for more work together on common agendas.

Here are the points I want to cover today

  • Employment: progress to date in building on HREOC's national inquiry report and the need for a national strategy
  • Education: the disability standards for education, and case outcomes on Auslan and other information and communications issues
  • The Transport Standards: progress so far, the five year review, and potential problem areas.
  • Access to premises: where we are and what are the outstanding issues
  • Telecommunications and E-commerce issues: including the theme for the International Day of People with Disability this year
  • Captioning issues : progress and prospects
  • Legislative change: implementation of the productivity Commission review.
  • International developments: where to now that we have an international Convention on human rights and disability.

Employment

The origins of the DDA were as part of a strategy to improve employment participation and opportunity for people with disability. Yet over the last decade and a half the statistics show that the overall employment position for people with disabilities in Australian society does not seem to have improved; if anything, it has got worse.

These facts prompted us last year to conduct a national inquiry on employment and disability which reported earlier this year.

Evidence to the Inquiry suggested there are three sets of obstacles:

  • First, information - a need for easier access to information on how disability can be accommodated in different work situations
  • Second, costs - concern about costs of participation for people with disability and possible costs for employers when employing a person with disability
  • Third, risks: including areas like occupational health and safety.

The Inquiry made 30 recommendations to address the three sets of obstacles. The final recommendation of the Inquiry is the critical recommendation in the set - that recommendations are all pursued together, and that the Commonwealth government leads the development of a National Disability Employment Strategy for Australia .

OH&S issues

As I have mentioned, the Inquiry found that people with disability often face barriers to employment because employers are concerned about risks.

The main concern seems to be a belief that there are higher health and safety risks when there are people with disability in the workplace, and therefore risks of liability under health and safety law and also of higher workers compensation claims.

The Inquiry did not receive any clear evidence that there is, in fact, a higher safety risk overall. But the perception is strong enough to have a significant impact on hiring and termination decisions by employers.

We have now brought back together the working group which we convened on these issues during the Inquiry. I'm pleased to say that the Australian Safety and Compensation Council, the office established by the Federal government to co-ordinate policies on workplace safety issues, has made disability and workplace safety a major agenda item for research projects which are expected to report in mid 2007. This will include looking at types of disability where people experience particular barriers, and we have emphasized issues for deaf and hearing impaired people in that context.

Employer organizations and State compensation and safety bodies are also discussing how we can give employers better to access information on how to ensure safety for all workers - instead of perhaps unnecessarily excluding people with disability because of uncertainty about what to do.

OH&S and discrimination laws

Employers also told the inquiry they were confused about the interaction between discrimination law and occupational health and safety law.

In principle, it seems clear to me that there is no conflict. What we have said for a long time now is that

  • If someone cannot work safely then they cannot perform the inherent requirements of the job; but that
  • Unnecessarily restrictive views on safety cannot be used as a defence to discrimination claims; and that
  • Workers with disability are equally entitled to a safe workplace.

In practice, though, as I have said many employers are uncertain about what to do and in some cases are choosing to play it safe by risking breaching the DDA rather than risking breaching OH&S duties.

So one part of improving outcomes for people with disability in employment seems to be to make clearer what is required to comply with both sets of laws.

In its review of the DDA the Productivity Commission recommended that HREOC should be able to certify other codes and standards for the purpose of DDA compliance. The Government accepted that recommendation. We are still discussing how certification should work, including the important issue of how to ensure that appropriate input and consultation occurs.

But in principle, this could offer a means for co-ordinating the requirements of the DDA and other regulatory regimes such as OH&S.

Ability for HREOC to recognize appropriate codes for the purposes of discrimination law might for example encourage OH&S authorities to develop codes on issues where safety concerns have presented barriers to people with disabilities - including perhaps on issues of hearing impairment .

Reasonable adjustment

Another part of the response to the signs that are there to see, of a need for change on employment issues, could be found in changing the DDA itself.

In 2004 the Productivity Commission's review of the DDA reported that although the legislation was working well in most areas, there was a need for improvements in the employment area.

In particular it recommended that the legislation spell out expressly duties to make reasonable adjustments instead of leaving these to be worked out from more general anti-discrimination requirements. The Government accepted this and most other recommendations and we should see a Bill introduced very shortly to implement them.

HREOC has always been clear that the DDA did require reasonable adjustment in employment and other area. But we agree that the law does not make this nearly clear enough.

Before moving onto other issues I do want to remind you that back in 1996 we issued draft disability standards on employment which did state a general duty of reasonable adjustment.

Employer organizations were not happy to have these standards enacted, because they did not want more regulation, although they were happy with them as guidelines.

Disability organizations were not happy either, because the draft standards were not specific enough - they did not prescribe in detail for example when a person would be entitled to a sign language interpreter was required or the level of qualifications required for interpreters.

Of course one of the hardest bits in negotiating for change is knowing when to sign on the dotted line and when to hold out for more.

Early in the life of the DDA though I think some disability advocates and organisations saw disability standards as suspect in principle, quite apart from the details of any proposed standard.

Public transport

In the public transport area, however, the disability community has very clearly preferred delivery of the right to accessible transport in practice to just having a right to complain about not having it.

With many access issues, people need authoritative information on what a non-discriminatory environment would look like, before they will invest in upgrading buildings and infrastructure and information systems and so on.

Transport standards were drafted in 1995-6 by a working group involving federal and state transport regulators, disability community representatives and industry representatives.

Although they were endorsed in principle by Australian Transport Council ministers in 1996 they only entered into force 2002 after delays for regulatory impact assessment and technical review.

The first five year targets for compliance fall due at the end of 2007 and governments and transport providers are now focusing more closely on what compliance means and how they are going in achieving it.

Most jurisdictions now have made information available for us to publish on our website on how they are going.

It's clear that big changes in physical access have been happening around Australia, with most transport sectors looking like meeting or exceeding the first five year targets for accessibility in that area by 2007.

Ironically though there is much less clear progress in information access, which initially was thought of as one of the easier bits, and so was marked for 100% compliance by 2007.

I know that some transport operators and deafness organisations have started talking about what to do by way of achievable compliance strategies. I would encourage more of that discussion both in the run up to 2007 and in the context of the review of the transport standards scheduled to occur at the five year point.

If the Standards had entered into force in 1996 as most of us expected of course, we would now have already had the first review and be coming up for the second. But they didn't .

The process and the timing of the first review are still being discussed by Ministers and among the Accessible Public Transport national Advisory Committee, which again includes representatives of each transport regulator, the disability community, the Human Rights and Equal Opportunity Commission and of course from industry.

What the Commission has been saying for a while now both to industry and community representatives is that while the two Ministers and their Departments are the ones with responsibility for conducting the process of review, the content really has to come from the people who know most about public transport - those who deliver and those who use the services.

Access to premises

Like the transport standards, the current process of developing disability standards on access to premises similarly involves a process of trading an individual right to complain under open ended discrimination provisions, against more certain achievement of the access standards set out .

Following the Regulation Impact Statement assessment process conducted on draft standards last year, the Attorney-General and the Minister for Industry, Science and Technology are now considering how to resolve issues where consensus between industry and community representatives has not yet been reached.

HREOC's position - and also the one which the Ministers have publicly supported - is that the level of existing rights should not be decreased.

We are negotiating about how access should be achieved, and supporting sensible compromises about that - but not negotiating for results that say that access does not have to be provided at all.

In some instances where it seems that an appropriate result may not be able to negotiated within a standard, we have been recommending that the issue be reserved and left for the operation of the existing DDA provisions. That is likely to be the result on a number of information access issues in particular, where the Building Code of Australia does not provide a sufficient result to codify in a standard.

The content of the proposed access to premises standards and thus the appropriateness of endorsing them remains under debate. In principal however the making of standards on access to premises offers huge prospects for achieving better access in practice.

This process started six years ago and we are anxious to see it completed, not least because this would allow moving on to a range of building access issues not covered by the building code including some of those regarding information access.

Despite valuable progress towards improved building standards on many access issues, it is still the case that many of the issues of interest to the deafness sector remain reserved for later discussion.

As the current process winds up, of upgrading the Building Code of Australia for adoption as disability standards on access to premises, we need to be looking for processes to move forward on those issues not included in the building code.

These wider issues might be addressed in a subsequent process to expand the standard.

Alternatively or as an interim measure, it might be possible to look at recognizing appropriate codes or standards through the mechanisms for recognition of other codes under the DDA as recommended by the Productivity Commission once those are put in place.

Codes might come from industry bodies or they might be initiated jointly by an industry body and a disability sector body. A relevant code could also come from other regulatory bodies - such as building codes board - or other expert bodies such as Standards Australia.

I think it is worthwhile for disability sector bodies to start thinking now about how such procedures might be used to achieve more widespread access.

Another agenda could relate to development of policy or standards on communications access in premises occupied by the Commonwealth Government. Potentially this could be part of a more general policy on accessible procurement as I have suggested should be adopted.

Education

Disability Standards on education entered force last year. These are a different kind of standards - they don't prescribe outcomes in as much detail as the transport standards. But they do provide more detail on the principles to be applied. For that reason HREOC views them as a significant advance in telling education providers what their obligations are, so they can be expected more readily to comply with them.

That doesn't mean that the standards are already implemented and we can all move on from education as an issue of course.

Access to interpreters is one area where the Commission continues to receive complaints.

Some recent court decisions have helped though to clarify how the less than clear terms of indirect discrimination law apply to issues in this area.

In Clarke v Catholic Education Office in 1994 the Full Federal Court confirmed that being required to be able to learn without use of Auslan interpreting did amount to a condition or requirement and could amount to unlawful indirect discrimination.

To find indirect discrimination there also needs to be a finding that a person "does not or cannot comply with" a requirement. In several decisions under the DDA we were starting to see a restrictive approach applied to this issue.

In Hinchcliffe v the University of Sydney , a young woman who has a vision impairment complained that course materials were not provided to her in an accessible format, and so she had to spend hours scanning print into electronic form. The Federal Magistrates Court found that since she had been able to find time to scan the materials, she had not been discriminated against - even though this meant she could not spend the time studying or working or doing the other things that university students do.

In Hurst v Education Queensland a Federal Court judge found that a requirement for a deaf child to learn without the assistance of an Auslan speaking teacher or an Auslan interpreter was not unlawful discrimination. Although he thought the requirement was unreasonable, it was not a requirement with which she was "not able to comply" - since the evidence showed that the child was able to "cope" with her work at school without Auslan.

In a very important decision in July this year the Full Federal Court reversed this result. They held that the test was not whether the student was able to "cope" with a condition or requirement but whether she suffered serious disadvantage because of the requirement or condition.

The Court emphasised that this was not a test case establishing that Auslan interpreting or teaching is always required in each and every case. But it is an important precedent nonetheless.

Strategies for progress

I know there are also many other continuing issues of information access in education such as captioning of audiovisual materials.

Complaints and the possibility of complaints remain an important driver for the implementation of the education standards.

Despite some successes in using complaints under the DDA, I think that a lot more could be achieved by the deafness sector than it has been to date through complaint processes under the DDA - not just in relation to education but more generally.

I'd like to re-open conversations with the sector about how complaint processes could be used more effectively. I won't pursue that at any further length today but I hope that you will take me up on the invitation to contact me or my staff to talk about it further.

Complaints though are clearly not the only strategy needed.

There are two themes the Commission has been pushing for a while in the employment area, and which I think are also relevant to education.

The first is better access to information on what adjustments to make and how to make them. We have been very pleased to see the Government pick up the suggestion for an Australian equivalent of the U.S. Job Accommodation Network information and advisory service, with the Job Access service now launched. I'm hoping that there will be continued improvement through input of expertise and experience from the sector on good practice and successful adjustments.

I think it would be good to talk about some similar facility to provide easier access to all of the expertise that exists in the education sector - so that no child needs to miss out on weeks or months of education while an overworked teacher tries to find appropriate resources.

The second theme is that of accessible procurement. If all systems and facilities comply as far as possible with universal design concepts, then meeting disability needs will far less often be a matter of making special adjustments and using time and money in that process.

In the Commission's national inquiry on employment and disability we recommended that the Federal Government follow the U.S. Government's lead in adopting an accessible procurement policy. I understand that the some State governments at least have been looking closely at initiatives in this area even if the Federal government so far has not, and I look forward to more details shortly. I'd like to see the same policy extended to, or adopted by, education providers.

Information and communications technology access

HREOC's own Bruce Maguire has been invited to participate in the expert panel reviewing the accessible procurement regulations in the United States .

One of the reasons I am excited about this involvement is that it will help to inform our own efforts here to have Australian governments and other institutions adopt policies and procedures to ensure accessibility of these technologies.

You may be aware that the theme the United Nations has announced that improving access to information and communications technology for persons with disabilities will be the focus of this year's International Day on 3 December.

The UN press release referred to opportunities that have been presented by new information and communications technology.

In particular it emphasised barriers to internet access through websites being inaccessible to blind or vision impaired people and dependent on use of a mouse .

Web access is clearly an important issue but the theme of information and communications technology is obviously broader than that.

Broader issues could include

  • other telecommunications technologies including fixed, mobile and Voice Over Internet phones;
  • expanding use of and access to broadband videoconferencing as a means of achieving wider access to Auslan interpreting, to provide a service comparable to the Telephone Intepreter Service for example
  • access to adaptive technologies in employment and education, including accessible procurement strategies;
  • accessibility of software;
  • the accessible procurement strategies I have mentioned,
  • other progress on cross government strategies on disability, and
  • extension of the work already done in partnership in industry in areas such as banking and television captioning.

There is not much time left until 3 December. But I am hopeful that we may be able to have some co-ordinated announcements on the international day by government agencies and private sector organisations at least of agendas for action on these issues into the future.

A Convention on human rights and disability

Of course the other international development is that the drafting of a Convention on human rights and disability is now complete. There are still several formal steps to come: the Convention needs to be approved by the United Nations General Assembly. Then, Australia along with other countries would have to decide to become parties to the Convention. I'm proud of the constructive role the Australian Government was able to play in drafting the convention, alongside Australian disability community representatives, and so I am confident that we will see Australia join up. There are several things we would want to see though, apart from hoping that that Australia should take its place among the first countries to ratify the Convention:

  • that the normal review by Federal and State governments of laws, policies and practices before an international treaty is ratified should be seized as a real opportunity for a national review of where we are at and where we need to go in disability policy, including the big issues of resources and what happens in practice, not just the laws and words on the page of policies;
  • that this should be done in as open a way as possible to ensure that the knowledge and experience of the disability community is taken on board;
  • and above all, that ratifying the Convention should be the beginning of new things in better ensuring the human rights of Australians with disability, rather than being taken as the end of the story.

Conclusion

A common theme in most of the processes I've talked about for achieving more on issues of disability access and equality, is looking for ways to achieve greater co-operation and involve everyone relevant in sharing knowledge and resources and finding a common interest in situations which start from opposing positions.

One of the reasons I'm pleased to have been appointed as Commissioner now is that by using the possibilities of the internet we can run more inquiries and other public processes with limited resources, instead of having to turn over a million dollars or so of public money into jet fuel and hotel bills and paper every time we want to run an inquiry or consultation.

But there are still limits to what we can do and still choices to be made.

It's important that in making those choices we are made as aware as we should be of the priorities for action as the deafness sector sees them.

I don't know whether the best method for ensuring that awareness is to discuss formal lists of top ten priorities in the manner for example that some U.S. government agencies do with the disability sector, or what additions and improvements we need to make to the flows of information that already occur between us.

But I do know that to perform our own role we need to hear from you as clearly as possible your views on what we should be doing and how, including when you think we haven't done it.

The best way for us at HREOC to know where to go, is if you keep showing us the signs.

See Also

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