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

Disability Disability Rights

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

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

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

Sev Ozdowski

Introduction

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

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

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

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

Disability in international human rights law

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

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

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

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

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

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

The International Year and action in the 1980s

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

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

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

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

1981 also saw the passage of the federal Human Rights Commission Act.
The new Commission's jurisdiction was defined by reference to a number
of international instruments - including the Declaration on the Rights
of Disabled Persons and the Declaration on the Rights of Mentally Retarded
Persons.

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

Some of the content of international declarations on disability was given
more definite legal form in the Disability Services Acts which were passed
later in the 1980s. These set standards for how specific services for
people with disabilities should operate - including provisions for dealing
with complaints of abuse and for participation in how services operate.

What they did not do, however, was to create any enforceable right for
people who require support, assistance or other services to receive it.

There is considerable evidence in 2002 of continuing unmet need for disability
services, support and assistance - in areas including personal assistance
and care, respite support for family carers, accommodation, interpreting
services, education aides, and access to assistive technology.

Towards national discrimination legislation

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

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

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

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

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

The Standard Rules on disability

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

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

Accountability, reporting and auditing

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

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

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

I do not think so.

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

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

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

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

The Disability Discrimination Act

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

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

These approaches can also be made to be very effective.

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

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

Implementation and achievements

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

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

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

Employment discrimination

This applies regarding employment in particular.

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

More complaints are received on employment issues than any other area
under the DDA. A high proportion of these complaints have been resolved
by conciliation. However, most cases are resolved on an individual basis
and have not contributed greatly to broad policy approaches by employers.

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

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

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

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

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

Access to premises

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

There have now been hundreds of disability discrimination complaints
in Australia which have been resolved with an agreement to modify premises
to make them accessible.

However, to make a significant impact on access and opportunity, the
numbers of buildings made accessible need to be not in the dozens or even
hundreds each year, but in the hundreds of thousands.

So the greatest impact of disability discrimination complaints about
access to premises has been in providing the impetus for upgrading the
access provisions of the Building Code of Australia by the Australian
Building Codes Board.

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

This has been a very long running process but a draft standard under
the Disability Discrimination Act should be available for consultation
early in 2003. At that point, we hope that accessibility in new or redeveloped
buildings will finally become a matter of routine (other than in the most
exceptional cases).

Telecommunications

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

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

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

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

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

Banking standards

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

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

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

Education

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

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

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

Public transport

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

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

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

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

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

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

Limitations and lessons

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

Lack of specific requirements for standard setting

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

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

Lack of comprehensive provision for standards

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

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

Limits of compliance and reporting functions

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

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

Lack of HREOC enforcement or complaint initiation power

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

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

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

Limited impact for some disability groups

Finally, it has to be acknowledged that we have been able to achieve
less for some sections of the disability community so far than for others
using the DDA. In particular, people with intellectual or psychiatric
disabilities have not had the same clear benefits as people with physical
or sensory disabilities.

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

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

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

See Also

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