Disability Rights update: September 2011

Previous editions: June 2010 | April 2010 | February 2010 | December 2009 | October 2009 | August 2009. Material from older editions is incorporated in the Commission's annual reports which are also available online.

About this update

This Update from Disability Discrimination Commissioner Graeme Innes is being re-introduced, in response to user feedback, after a period where we have trialled just using our disability rights blog instead for regular news.

Most posts to the blog focus on providing news and information on one specific issue. We have decided however to add to this by reinstituting a regular Disability Rights Update, which seeks to provide a  more comprehensive overview of disability rights developments that the Australian Human Rights Commission is involved in.

We will keep using the blog alongside this update newsletter, including for news from other organisations.

We would of course appreciate your feedback both on how we can improve our communications and on the substance of any project or issue. Contact us through the blog; or by email at disabilty@humanrights.gov.au.

You can subscribe to our email list to be notified when new editions of this update are issued and when other major developments occur, by sending a blank message to join-drupdate@list.humanrights.gov.au . New editions of the newsletter will also be notified (but not posted in full) on the blog.

Commission workplan and the National Disability Strategy

The Commission has framed its 2011-12 workplan on disability rights issues by reference to the National Disability Strategy (NDS) which was approved by the Council of Australian Governments (COAG) earlier this year. The Commission decided to take this approach in view of the Australian Human Rights Commission’s statutory responsibilities in relation to the Convention on the Rights of Persons with Disabilities; the significance of the NDS as a framework for the implementation of the Convention; and the recognition of an important role for the Commission within the NDS itself.
So this Update is also framed by reference to the NDS.

Development of NDS implementation plans

The NDS requires that disability Ministers and their departments co-ordinate development of detailed implementation plans for each of the priority areas identified, and bring these back to COAG early in 2012. The Commission was included in an initial briefing to disability advisory bodies by the National Disability Strategy Development Officials Working Group on 12 August on progress to date.  With other participants, we noted the urgency of moving to involve representative organisations of people with disability more directly and of ensuring improved information flows.

Current actions

The Commission does not believe, however, that it is necessary or appropriate to wait until the NDS implementation plans are finalised next year to start taking action around the NDS.
As noted in the NDS itself, there are already a range of current relevant commitments and existing initiatives. The Commission is engaged in a number of these in partnership with relevant Commonwealth departments and agencies, with representatives of people with disability, and with States and Territories and relevant industry bodies.
There are also a range of areas under the Strategy where there appears clear scope for action rather than needing to await further agreements at intergovernmental level, and with this in mind we have commenced discussions with a number of Federal ministers and with their departments and agencies, as well as some discussions with with States on specific issues.

National Disability Insurance Scheme

A key element of the NDS is the Productivity Commission’s inquiry into Disability Care and Support and the response of governments to that inquiry. With many other organisations, the Human Rights Commission welcomed the release on 10 August of the Productivity Commission’s final report, which recommended a National Disability Insurance Scheme (and a related National Injury Insurance Scheme); and the commitment already expressed by the Commonwealth, by most States and Territories, and by all sides of politics, to move forward with such a scheme.

The Productivity Commission report confirms what the disability community has been saying all along:  that a society which effectively includes all its members - including people with disability - will be both a more prosperous and a fairer place.

In our submissions to the Productivity Commission, the Human Rights Commission emphasised the importance of a social model of disability, and drew attention to potential roles for a National Disability Insurance Authority or similar body not only in administering payments to individuals and families, important as that is, but also in addressing disabling social barriers and implementing Australia’s obligations under the Disability Convention.

We referred to precedents of bodies such as Transport Accident Commissions and WorkCover authorities having not only insurance and compensation functions but also functions such as conducting or supporting research, standards development, advocacy and awareness raising; and recommended that a National Disability Insurance Authority or similar body should have functions and powers which are appropriately broad, including having capacities to address barriers in any area of life.

We are very pleased to see that the Productivity Commission adopted a similar view. In coming weeks we will be discussing with government how the Human Rights Commission can best assist in moving this agenda forward.

Inclusive and accessible communities: NDS priority area 1

Accessible public transport

Commissioner Innes provided advice to the Accessible Public Transport Jurisdictional Committee on 29 July supporting regulatory recognition of appropriate industry codes where possible as a more effective option than the development of guidelines recommended by the review of the Disability Standards for Accessible Public Transport.

We have also provided advice to CASA to ensure appropriate recognition of assistance animals in proposed changes to aviation regulations. We also met with the General Manager, Land Transport Reform in the Department of Infrastructure on 2 August to discuss the Government’s response to the DSAPT review.

Specifically in relation to taxis, there is clear evidence that the requirement in the DSAPT of equal response times for accessible and other taxis is not being met. We have suggested to the Department of Infrastructure that, with the context provided by the NDS as a cross government and result oriented strategy, it would be appropriate for Infrastructure, together with the Department of Innovation and other relevant areas, to consider options for promoting movement towards universal access in taxi fleets as the means for achieving equal access in practice.
This as many people will know was the course advocated over many years by the late Angus Downie, whose work contributed so greatly to the achievement of the DSAPT. With New York City having recently announced a move to a universal taxi and selected a supplier, a similar initiative in Australia appears more timely than ever.

Access to premises

The conclusion of the Disability Standards for access to premises was the culmination of many years of work by government, the Australian Building Codes Board and the Commission, in partnership with industry and the disability community, to provide a regulatory framework intended to be clearer and more consistent for industry and more effective in ensuring accessibility.
The Commission has received a small number of representations from some sectors of industry (in particular in tourist accommodation) responding to the Standards as an unexpected regulatory impost. In response we have pointed to the lengthy development process including extensive industry participation and consultation and the Regulation Impact Statement assessment conducted. In this light we expect the number of such adverse reactions to remain small.

There has also been steady demand for technical advice from the Commission on the application of the Standards – including from a number of local authorities responsible for assessing building and development applications. One of the purposes of development of the Standards and their incorporation into building and development law was of course that disability access should be mainstreamed rather than, in effect, the national human rights commission being regarded as the approval body for ramp access to small businesses in regional Australia. We hope and expect that the training material currently being prepared by the ABCB (building on previous material and presentations by the Commission in partnership with the ABCB) will improve this situation. The Commission will be monitoring requests in this area not only in the interests of managing our own modest resources but as one contribution towards evaluation of how well the Standards are working.

We will be meeting with senior officials of the ABCB in the context of their conference on 20 September to discuss information and training needs, and measures to put in place as early as possible an evaluation framework with a view to the review of the Standards required at the five year point.

We also intend to discuss as soon as possible with the ABCB options for progress on issues not covered by the Standards as yet. The ABCB is already working on draft provisions on emergency egress, with a view to these being released for consultation in late 2011. There remain however a range of other issues beyond the coverage of the Building Code of Australia to consider, including accessibility in building fit-out, accessibility in play and recreation facilities, and accessible public rights of way.

There has been considerable progress on some of these issues in other countries, notably through the work of the United States Access Board, and we will be discussing options for Australia to catch up (including regulatory options but also available material which might be picked up earlier by governments in guidelines for funded works).

Accessible procurement

On 2 August Commissioner Innes gave a presentation (available on our website at http://www.humanrights.gov.au/disability_rights/speeches/2011/finance.html) to Department of Finance and Deregulation staff on equality and participation for people with disability as major economic issues for Australia; the importance in this context of the APS improving its own performance to serve the public better and provide a leadership role rather than undermining the Government’s credibility with the wider employer community; and Finance’s distinctive possible roles in implementing the National Disability Strategy including in developing an accessible procurement policy and strategy for the Commonwealth.

The Commission participated in the August session of the Australian Government Information Management Office’s accessibility working party. In his presentation to the Department of Finance, Commissioner Innes noted that AGIMO’s leadership role provides a model of the role which we would like to see in a number of other areas covered by the NDS.

The Commission is also partnering with Meetings and Events Australia to update their Accessible Events Guide with an expected re-launch in early 2012.

Civic life

The Commission strongly welcomes the “Leaders for Tomorrow” program which the Parliamentary Secretary for Disability announced earlier this year. The Commission is seeking to explore opportunities for co-ordination of this program with other current and forthcoming leadership related initiatives including within the Australian Public Service and with the program which the Commission will be administering for funding of participation by disability leaders in international disability rights events.

Media access

We will be providing ongoing advice to the Department of Broadband, Communications and the Digital Economy in the lead up to release of the draft Bill (which we hope to see later this year) implementing the media access review.

We are participating in the Captioning Committee working on drafting captioning quality guidelines.
We are also continuing to advocate in support of the early commencement of a technical trial of audio description by the ABC.


Commissioner Innes had an opinion piece published in the Sydney Daily Telegraph on the potential for the National Broadband Network to promote social and economic inclusion for people with disability. The piece is in the 4 August edition and on line at http://www.dailytelegraph.com.au/news/opinion/nbn-will-build-a-bridge-for-disabled/story-e6frezz0-1226107643999 .

We met with DBCDE on 8 August to discuss the Commission’s input into the Telecommunications review including identifying scope for bringing forward review of aspects of the Universal Service Obligation.

Disability rights protection, justice and legislation - NDS priority area 2

Support for disability participation in international human rights processes

Earlier this year the Government announced a three year funding program, to be administered by the Commission, to support disability participation in international human rights processes. Following a consultation process (which was necessarily quick to get funding going as soon as possible), discussion is well advanced between the Commission and the Department of Families, Housing, Communities and Indigenous Affairs, of criteria and processes for allocation of the funding.

Reporting under the Convention

The Commission will be considering in coming months how we can most effectively contribute to the international dimensions of accountability for disability rights outcomes as Australia’s initial appearance before the Committee on the Rights of Persons with Disabilities approaches.

Support for use of the DDA and other mechanisms by disability organisations

With the welcome commencement of a dedicated Race Discrimination Commissioner from 5 September, Commissioner Innes will become Australia’s first full time Disability Discrimination Commissioner since Elizabeth Hastings completed her term back in 1997.

A priority will be to conduct a round of meetings from September onwards with leading representative and advocacy bodies, to work on means for making the most effective use possible of the Disability Discrimination Act and other available mechanisms within Australia to advance the achievement of human rights for people with disability in practice.

Equality law reform

The Attorney-General’s Department in partnership with the Department of Finance and Deregulation are conducting a project of review and consolidation of federal discrimination laws, as part of the government’s Human Rights Framework. In his recent presentation to Finance, Commissioner Innes referred to statements by Treasury and the Treasurer of participation and opportunity for people with disability as major economic imperatives, and the consequent need for the review to pursue greater effectiveness of the law in promoting equality, rather than being approached purely from perspectives of efficiency and deregulation. The Director of the Commission's Disability Rights Team has particular experience in this area and has the leading staff role in the Commission's contribution to this process.

Disability issues in the National Human Rights Action Plan

The Commission has participated in a number of consultations with civil society organisations and human rights experts conducted by the Human Rights Law Centre on behalf of the Attorney-General’s Department on the development of a new National Human Rights Action Plan for Australia, including a number of sessions focussing specifically on disability.
One relevant area where strong interest has been expressed during consultations to date is that of data collection and development of more comprehensive indicators, benchmarks and targets for human rights outcomes, in relation to disability and more generally.

Clearly, an overall Human Rights Action Plan should not seek to duplicate work already being pursued through the National Disability, and there are differences in process (including that the NDS is a COAG process while the NHRAP does not at least at this point have that status) and likely timelines. However, the Commission is looking to identify means by which these two initiatives might reinforce and complement each other. Public submissions to the Attorney-General’s Department on the draft Baseline Study are due by 31 August and may help to identify possibilities in this respect.

Women and girls with disability and non-therapeutic sterilisation

During Australia’s Universal Periodic Review in the United Nations Human Rights Council, while there was generally a very positive response to Australia’s efforts in relation to human rights for people with disability and in particular to the initiation of the National Disability Strategy, there was strong interest and concern from Australia’s peers regarding non-therapeutic sterilisation,.

The Australian Government responded to this group of recommendations as “accepted in part” and indicated that:

In response to concerns expressed internationally and domestically, the Attorney-General intends to initiate further discussions with State and Territory counterparts.

The Government made an overarching commitment to address all accepted recommendations in Australia’s new National Human Rights Action Plan.

Commissioner Innes and the Sex Discrimination Commissioner have written to the Attorney following up on this issue, and together with representatives of people with disability we expect to be involved in discussions with the Attorney and his Department in the near future.

The Commission has also written to the Family Court of Australia requesting information about the number of applications received seeking authorisation for Special medical Procedures (Sterilisation), and the number of applications resulting in consent being given. The Australian Guardianship and Administration Council has also agreed to distribute a questionnaire to all state and territory guardianship tribunals seeking similar data.

Women and girls with disability and violence

While both the National Disability Strategy and the National Action Plan to Reduce Violence Against Women and their Children present opportunities to address these serious human right issues, there is clearly considerable need for further development. Commissioner Innes and the Sex Discrimination Commissioner have written to the Minister for the Status of Women urging the Minister to consider appointing women with disability to the National Plan Implementation Panel and working groups that will sit under the Panel.

Children and young people with disability

Noting that children with disability are explicitly recognised as a priority in the Convention on the Rights of Persons with Disabilities, but less explicitly addressed in the National Disability Strategy, the Commission is undertaking some scoping work and consultation seeking to determine the extent to which experiences, needs and views of children with disability are documented; best practice regarding consulting with and engaging children; representation of needs and rights of children with disability; capacity building and leadership opportunities for children with disability; and each of these issues as they apply to young people with disability.

The Commission has also worked to ensure that its input into Australia’s reporting under the Convention on the Rights of the Child has included a strong focus on children with disability.

Economic security - NDS priority area 3

Work towards an NDIS is clearly a major component in this area. A number of other agendas in this area are also progressing.

Employment of people with disability

There has recently been considerably enhanced interest in issues in this area.
Commissioner Innes has met with the Special Minister of State and the Public Service Commissioner regarding the need to increase employment of people with disability in the APS, both to provide leadership to employers more generally and to ensure that the APS itself has the diversity to serve a diverse society. As noted above we have also discussed these themes with Department of Finance and Deregulation staff.

In this context Commissioner Innes raised with Finance the possibility of adjustments up or down in the efficiency dividend for public service agencies and departments, according to performance against equity indicators.

The Commission continues to participate in the government’s Disability Employment Services Reference Group. The Commission is engaging, through that process and through other opportunities as they emerge, with employer,  employment service provider and disability peaks to identify barriers and develop solutions to increase employment of people with disability.

Mental health, discrimination and insurance   

The economic security theme within the National Disaility Strategy has presented an opportunity to re-invigorate and broaden work which the Commission with the Mental Health Council of Australia and beyondblue conducted some years ago in partnership with the Investment and Financial Services Association.

The Assistant Treasurer and the Minister for Mental Health have agreed to co-chair a working group with a first meeting planned for the morning of 5 September in Sydney.

Personal and community support and participation  - NDS priority area 4

To this point the Commission’s thinking on how to assist in advancing this priority area under the NDS has principally focused on advocacy for an NDIS. We expect however to work further on contributing in this area including in relation to housing choices and independent living, and accessibility of general community supports.

Commissioner Innes met on 2 August with the Attorney-General’s Department regarding the National Disaster Resilience Strategy, to discuss measures to ensure appropriate attention to people with disability and other vulnerable members of the community in disaster preparedness, response and recovery.

Learning and skills for people with disability – NDS priority area 5

The Commission is assisting DEEWR in the review of the Disability Standards for Education.
While some areas for improvement in the Standards may be identified, more significant improvements in outcomes for people with disability may well follow from improvements in compliance frameworks for federal discrimination law more generally; and through other actions which we would hope to see emerge under the National Disability Strategy including improved ease of access to resources and information (such as through NBN based services) and through an appropriately designed and implemented NDIS.

Health and well-being for people with disability – NDS priority area 6

We will be in a better position to consider how the Commission can contribute most effectively to achieving improved health outcomes for people with disability when further detail is available from government of proposed NDS implementation plans.

In the area of mental health, Commissioner Innes has had preliminary discussions with the Minister for Mental Health and the incoming chief executive officer of the new Mental Health Commission on the role of that Commission.

International co-operation

AusAID and international co-operation on disability

The Commission have recently concluded our joint project with the Pacific Disability Forum, funded by AusAID, where we conducted in-country training in 10 Pacific Island countries. The goal was to build the capacity of DPO and government representatives to progress disability issues, and increase signature and ratification, and improve implementation, of the Convention. Particularly pleasing aspects were the success of the approach of having government and disability representatives working together, and in combining awareness of disability rights issues with work towards strategies for action.

We see considerable potential to apply the lessons of this project within Australia, including in work funded by the Attorney-General under the Human Rights Framework.
We also see potential, dependent on further funding from AusAID or other appropriate sources, for further workshops in those Pacific nations not included in the 2010-11 funded activity and in African and Asian nations; and for a second stage building on the initial round to promote successful transition from training and capacity building to disability strategy formation and implementation.