Date: 
Thursday 8 March 2018

Author

Mr Alastair McEwin, Disability Discrimination Commissioner

It was 25 years ago this month that the Disability Discrimination Act 1992 (Cth) (the ‘DDA’) commenced operation.

On 1 March 1993, Australians with a dis¬ability had a national law that was designed to provide them with equality in many areas of life. Over the past quarter of a cen¬tury, the DDA has contributed significant¬ly to social change for people with disability and has been used by thousands of them to fight against discriminatory practices in many fields, including employment, education, access to transport, goods, services, facilities and more.

One such person is Scarlett Finney. In 1997, 5-year old Scarlett attempted to enrol at Hills Grammar School, located in the Hills district of Sydney. The school reject¬ed her enrolment because of her disability, which is spina bifida. The school claimed that it would not be able to accommodate her. Using the DDA, Scarlett took her mat¬ter to the Human Rights and Equal Opportunity Commission (as the Australian Human Rights Commission was then known). Former Com¬missioner Graeme Innes found that the school had discriminated against Scarlett in refusing her enrolment (Finney v The Hills Grammer School [1999] HREOCA 14). The school’s subsequent appeal to the Federal Court was dismissed (Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658).

Hills Grammar is now a pioneer in inclusive education, em¬bracing children with disabilities and particularly students with spina bifida. This case is a shining example of how people with disability have used the DDA to remove barriers and challenge long-held assumptions about people with disability.

(To see a video on Scarlett Finney’s case, see: https://www.youtube.com/watch?time_continue=9&v=IgHnntaUQ7I).

The commencement of the DDA was never going to be a panacea for all the issues and disadvantage faced by people with disability in Australia, however it did clarify and amalgamate the various disability discrimination laws existing at the state/territory level. It represented a clear, national approach.

The 25th anniversary presents an opportunity to provide some observations of the impact the DDA has had on the lives of people with disability in Australia, and how far we have progressed under the auspices of the DDA. Notwithstanding the successes and progress, people with disability in Australia still face challenges and barriers in almost every aspect of life. It is important that we acknowledge and try to progress the areas in which we have stagnated, and reflect on why we have seen such limited development in certain areas, such as eliminating disability discrimina¬tion in employment.

Successes

The fundamental principles of the DDA are to ‘eliminate, as far as possible, discrimination against persons on the ground of disability’ (DDA, s 3(a)), and ‘ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community’ (DDA, s 3(b)). The DDA was Australia’s first federal, uniform legislation to recognise the rights of people with disability, symbolising a major national step towards ensuring that people with disability have the same rights as other citizens. The DDA simultaneously established an avenue of redress for people who believed they have been treated less favourably because of their disability, effectively creating a frame¬work to work towards eliminating, as far as possible, discrimination on the ground of disability.

It is also unlawful under the DDA to contravene a Disability Standard. Disability Standards currently exist in the areas of public transport, education and access to premises. They serve two major purposes: to set legislative deadlines for achieving equal access for people with disability; and to provide more definite and certain benchmarks for accessibility and equality than is provided by the general anti-discrimination model. These standards have successfully promoted dignified, equitable and accessible guidance for governments, businesses, and people with disability. Together, theDDA and the disability standards establish a successful legislative scheme that works towards achieving the objectives of the DDA.

SNAPSHOT
• Over the past quarter of a century, the Disability Discrimination Act has contributed significantly to social change for people with disability and has been used to fight against discriminatory practices in many fields, including employment, education, access to transport, goods, services, facilities and more.
• Notwithstanding the successes and progress, people with disability in Australia still face challenges and barriers in almost every aspect of life.
• The Australian Human Rights Commission receives more complaints of disability discrimination than any other discrimination area. Of those complaints, most are in the area of employment.

Complaints conciliation process

The DDA also enables people to make a complaint to the Commission if they feel their rights have been violated. The Commission has the power to investigate and facilitate conciliation between the parties, and in the rare circumstances the matter is not settled, complainants have the option of taking their case to court.

The Commission’s conciliation process is inclusive. It strives to achieve mutually agreeable outcomes. In 2016-2017, approximately 75% of complaints that were conciliated were resolved through mutually agreeable outcomes. And in the same year, 31% of settlement outcomes included terms which will have benefits for people beyond the individual complainants, for example the introduction of anti-discrimination policies or training in the workplace (Australian Human Rights Commission, “Complaint Statistics” (2017), www.humanrights.gov.au/sites/default/files/Complaints_AR_Stats_Tables%20... (viewed 15 February 2018)). The complaint process is clearly capable of having a degree of systemic impact in its own right. Without the clear statutory complaint framework that allows people to bring claims of disability discrimination in a no-cost jurisdiction, Australians with disability would not have access to justice other than through costly litigation.

The next question is how the courts have interpreted the law to give effect to its intended objective. An example of this is the obligation to make ‘reasonable adjustments’ for people with disability. Prior to 2009, the courts repeatedly interpreted the DDA as imposing an implied duty to make ‘reasonable adjustments’ to avoid unlawful discrimination. This was in alignment with the requirement to make ‘reasonable accommodation’ in the Convention on the Rights of Persons with Disabilities (‘CRPD’). Consistent case law eventually led to the amendment of the DDA that formalised the requirement to make ‘reasonable adjustments’ for people with disability, for example in employment, education and in the provision of goods, services and facilities.

Clearly, the dual mechanisms of the Commission’s complaint process and the court system act as a legitimate means of establish¬ing standards, as well as acting as a compliance process.

Australia’s lack of ‘rights consciousness’

In Australia, there is a general lack of ‘rights consciousness’ as it relates to the DDA, particularly when compared to other liberal democracies like America. We still face a collective lack of forethought and responsibility regarding accessibility under the DDA, and this can lead to alarming situations, particularly when it comes to the safety of people with disability. For example, when we expe¬rience natural disasters the last thought is about the importance of public building accessibility for people with disability or how they are evacuated from areas that have been declared disaster zones (see: www.abc.net.au/news/2017-09-28/how-people-with-disabil¬ity-cope-during-disaster/8987800 (viewed 15 February 2018)).

On a positive note, in 2008 Australia committed to incorporat¬ing the CRPD into domestic laws and policies, but this has not completely eliminated discrimination. The National Disability Strategy 2010–2020 is the Government’s official plan to make the rights contained in the CRPD a reality. Some progress has been made under this strategy, such as the implementation of the National Disability Insurance Scheme (‘NDIS’), which has potential to give people with disability the chance to lead independent lives. However, a truly inclusive community is still beyond the reach of many people with disability. This is particularly the case for those in rural and remote areas, those from culturally and linguistically diverse communities, and for many Aboriginal and Torres Strait Islander people with disability.

During community consultations, I repeatedly hear from employees and employers alike that they are unaware or unsure of their rights and obligations under the DDA. It therefore comes as no surprise that the elimination of disability discrimination in employment has stagnated. In fact, it has barely got off the ground since the commencement of the DDA. The Commission receives more complaints of disability discrimination than any other discrimination area. Of those complaints, most are in the area of employment. In 2016-2017, the Commission received 755 complaints of disability discrimination (up from 750 the previous year), and 33% of the complaints lodged under the DDA related to employment. What is most alarming is that these numbers and statistics have been consistent for many years (Australian Human Rights Commission, “Complaint Statistics” (2017), 8).

The Commission recently conducted a National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability. The Report – ‘Willing to Work’ – found that em¬ployment discrimination against people with disability remains ongoing and systemic. Discrimination is underpinned by negative assumptions and attitudes that are held by many employers and throughout the community about the productivity and capability of people with disability and perceptions that they present a higher work health and safety risk. The ‘Willing to Work’ Report also found that in 2015, the labour force participation rate for peo¬ple with disability was 53.4%, compared with 83.2% for people without disability; this figure has changed very little over the past two decades (see further: www.humanrights.gov.au/our-work/dis¬ability-rights/publications/willing-work-national-inquiry-employ-ment-discrimination).

We must consider why disability discrimination in employment, and more generally, continues to exist. A factor is the reticence of individuals with disability to pursue a claim of discrimination through the justice system. Applying to the Federal Court of Aus¬tralia (‘FCA’) or Federal Circuit Court of Australia (‘FCC’) re¬quires the complainant – often someone with limited means of income – to risk their job, finances and assets to lodge against respondent entities that frequently draw on significant resourc¬es. Costs follow the event in most matters before the 

judicial process acts as a disincentive for individuals to pursue their rights under the DDA.

Strengthening the Act – room for reform

No law is perfect. That is why we must always consider the possibility of law reform. The law is designed to reflect the society in which we live, but also to act as a mechanism for change in the hope that attitudinal and behavioural shifts will follow. As it stands, the purpose of the DDA is to prohibit unlawful discriminatory practices in areas of public life such as employment and education. In other areas, there are greater weaknesses. For example, the DDA has very limited jurisdiction to deal with violence or abuse against people with disability. Whilst the DDA makes it unlawful to ‘harass’ a person with a disability in relation to that disability in employment, education, and the pro-vision of goods and services, the term ‘harass’ is not defined in the DDA. There is also little judicial authority on what consti¬tutes harassment under the DDA, and the limited case law that exists identifies ‘harassment’ as something which is repetitious (Penhall-Jones v State of NSW [2008] FMCA 832), or disparag¬ing comments that were made in relation to the person’s disability (Orlowski v Sunrise Co-operative Housing Inc [2009] FMCA 31). 

The disability rights space could benefit from further legislative review in this area to consider enacting laws that move beyond the current scope of an anti-discrimination model, to also protect people with disability against violence and abuse. I acknowledge the recently established NDIS Quality and Safeguards Commission, which is expected to commence operations in some states from July 2018. It is an independent Commonwealth body designed to regulate the NDIS, and I understand it will have capacity to accept complaints about the quality and safety of NDIS services, including abuse and neglect of a person with disability.

International human rights instruments also have a role to play. Foremost of these is the CRPD, which represents a significant paradigm shift in the way people with disability are perceived by society. It is a move away from the medical model, which sees a person with disability in need of being fixed or cured, and towards the social model, which is based on the theory that disability is the result of the interaction between people with impairments and an environment that has physical, attitudinal, communication and social barriers. With Australia being a signatory to the CRPD, this represents a unique opportunity to enshrine this UN instrument into domestic legislation and create a truly inclusive Australian society that does not see people with disability as needing to be fixed or cured.

In lieu of amendments to the DDA, the Commission is currently undertaking a project on the issue of violence against people with disability in institutional settings. The Commission’s project focusses on possible ways in which mechanisms can be strengthened and supported by a compliance regime to address and prevent violence against people with disabilities, particularly those who fall outside the scope of the NDIS.

Conclusion

After 25 years, it is important that we acknowledge all that the DDA represents for Australians with disability. Equally as important, we need to explore where Australia should ideally be in another 25 years. When we reach that time, I hope to be in a position to reflect on the ongoing positive systemic outcomes that have been achieved through the Commission’s conciliation process or the court process.
I further hope – with a small dose of scepticism – that the primary objective of the DDA will have been fulfilled, and discrimination has indeed been eliminated as far as possible in all areas of public life. The commencement of the DDA was the genesis of change 25 years ago, and whilst our lives have drastically improved, it is imperative we keep the conversation alive to ensure that all people with disability are living in a truly inclusive Australian society.

Published in: 
Law Society Journal