International day for people with disabilities

Dr Sev Ozdowski OAM,
Acting Disability Discrimination Commissioner
3 December 2001
Alice Springs
Sev Ozdowski

Allow me to commence by paying my respects to the traditional custodians of this land on which we meet.

It is a pleasure to be here to share with you this International Day for people with disabilities.

I am here today partly because Michelle Castagna was quick off the mark in organising me to come before I had accepted any of the numerous other possibilities for events for the international day.

Another reason is the fact - obvious to all of you here - that people with disabilities in a place such as Alice Springs and the surrounding region face human rights and access issues in particularly acute forms. So I have chosen to spend today in the physical centre of Australia rather than in one of the larger political or population centres.

I want to talk with you today about some of the initiatives which I and my colleagues at the Human Rights and Equal Opportunity Commission are taking to advance the human rights of people with disabilities; and to ask for your co-operation in finding ways to further advance the human rights of people with disabilities - wherever they live across this country.

Twenty years after the International Year for Disabled Persons, there has been progress in some important areas. But people with disabilities still face unnecessary and unjust exclusion and inequality as part of the daily realities of life.

Discrimination law is a powerful tool for changing some of these realities

I want to talk about achievements and possibilities in using the Disability Discrimination Act.

But it must also be acknowledged that not every human rights issue for people with disabilities can be dealt with, or dealt with effectively, by discrimination law.

So I also want to talk about options for action on human rights and disability issues more broadly.

Disability discrimination legislation and practical agendas

The Disability Discrimination Act was passed by the Federal Parliament a little over nine years ago now, in November 1992. This was around the same time that the Northern Territory passed its own Anti-Discrimination Act, which also covers disability discrimination.

The main object of the Federal Act was clearly stated: "to eliminate, as far as possible, discrimination against persons on the ground of disability" - and to do this across a wide sweep of areas of life, from employment and education, to access to premises, to discrimination in services such as transport, insurance and government services.

The initial intention of the federal government in developing the DDA was only to legislate on employment. But this coverage was expanded when the Commission and disability community organisations pointed out that legislation covering employment by itself would not have much impact.

You cannot have equal opportunity in employment if you cannot get to work because of inaccessible transport systems. Or if you cannot get into the building. Or if you do not have an effective opportunity to acquire skills through education and training. Or if telecommunications or other important technologies are inaccessible to you.

So the Disability Discrimination Act is aimed at these practical aspects of equal opportunity and access rather than only at achieving theoretical statements of EEO policy.

Unfortunately, it seems to me, human rights and discrimination laws often seem to be viewed mainly as symbolic commitments rather than practical agendas for action. As far as I am concerned, though, the point is to actually make a difference to the freedom and opportunity that people actually enjoy in practice.

This is the way the Commission has tried to approach the Disability Discrimination Act. We believe that when the DDA says its object is to eliminate discrimination, it means what it says, and that it requires practical action to make this happen.

Implementation provisions

Very few laws achieve their objects automatically or overnight just by being passed. It is certainly not that simple for human rights and discrimination laws.

This is why the Act contains various implementation and enforcement mechanisms:

  • Provision for complaints to be made, and resolved if possible by conciliation but if necessary by enforceable decision;
  • Provision for the Commissioner to act as amicus curiae - to assist the court with expert opinion in cases of public importance;
  • Provision for standards to be set - to define what is required to eliminate discrimination and how long it is allowed to take;
    Provision for temporary exemptions - to encourage and assist the transition from a discriminatory present to a non-discriminatory future;
  • A promotional role for HREOC, and for the office of Disability Discrimination Commissioner in particular - to ensure that people with rights and responsibilities under the legislation know about those rights and responsibilities and what they mean.

I do not want to over-emphasise my own role, or the role of the Human Rights and Equal Opportunity Commission, as if all action about human rights and disability centres on us.

For one thing, all States and Territories - including the Northern Territory as I have mentioned - also have disability discrimination provisions in their own equal opportunity or discrimination laws. The Federal legislation may be the one with disability in the title - with the disability symbol on the front door, so to speak - but the State and Territory laws and agencies also have their part to play.

More broadly, if equality and access are to become realities for people with disabilities across Australia, then the DDA cannot be seen as something which is just the responsibility, or mainly the responsibility, of a small Sydney based human rights commission. It has to be the responsibility of all organisations - government, business and community.

Disability is an issue in all communities

Disability access has to be a central concern whether we are talking about organisations specifically focussed on disability, or on provision of more general services, or organisations focussed on specific groups like women or indigenous people.

Half the disability community are women, and have the same concerns as other women regarding gender based disadvantage. In fact there is evidence that women with disabilities are subjected to sexual harassment and abuse at an even greater rate than other women.

People with disabilities share the ethnic, religious and cultural diversity of the Australian community.

Australia's indigenous peoples also include people with all kinds of disability. As people here would know, some disabilities, for example deafness and hearing impairment, occur at a much higher rate among Aboriginal people than in the community generally.

Is disability discrimination a priority?

I must admit that it is a challenge to be talking about disability discrimination in this context: when some sections of our community are experiencing social and public health disaster which is producing vastly higher rates of disability, particularly among young people.

Isn't the real human rights issue about deafness in Aboriginal young people how to stop them going deaf, rather than thinking about how to give them access to education or employment after it has happened?

Isn't it pathetic to be talking about wheelchair access in communities where young people need wheelchairs because of the consequences of petrol sniffing?

Yes: these are human rights issues which are all too real. My colleague the Social Justice Commissioner Bill Jonas and his predecessor Mick Dodson have worked for years to gain more public and political attention and commitment to addressing these issues.

It is also true that disability discrimination law has little or nothing to contribute to these issues of the causes of unnecessary disability.

But even without these factors of social disadvantage, and in some cases destructive behaviour, people with disabilities would still be an inherent part of indigenous communities and of the communities of regional and remote Australia more generally. Because disability is an inherent part of the human experience in this world. In every community it is inevitable that some of us will have disabilities, whether acquired through inheritance or illness or injury.

So, yes: the epidemic of hearing loss among Aboriginal children needs to be addressed. But so does the right to equally effective access to education for those who are already deaf and those who will be deaf in future even without the effects of social and health disadvantage.

Yes: the scourge of petrol sniffing has somehow to be removed. But all communities will contain people with brain injury or with physical disabilities acquired in other ways. Most obviously, disability is going to keep resulting from a more widely practiced dangerous use of petrol. I mean, putting it in cars and driving- and of course people outside the inner cities have little choice about that as part of life.

Roles of HREOC and community

I am not here to hold the disability discrimination agenda out as the whole human rights agenda or to claim that a human rights commission can have a decisive role on every issue of concern.

My point is to emphasise that the access and equity issues dealt with by the DDA and similar legislation are an important part of securing human rights in practice.

And although HREOC cannot claim sole responsibility for delivering implementation of the DDA in practice, clearly we do have a leading responsibility, through our legal and promotional or political roles. We also have a responsibility to be accountable about how we perform these roles.

In return, can I suggest that the disability community has a responsibility to be clear in putting to us its expectations on how we should perform the responsibilities which the legislation gives to us, both under the Disability Discrimination Act and the broader human rights agenda under the Human Rights and Equal Opportunity Commission Act.

We consistently invite input both on what issues we should be addressing and on the detail of actions and decisions on those matters we are dealing with.

One of my first actions after taking up my position as Commissioner was to send an open letter, directly to all organisations on our mailing list as well as through our web site, seeking input on priorities and projects, as well as on issues of how we communicate with the community.

The number of responses we received was really very limited. I should say though that we had more response from people here in Alice Springs than from some much larger centres.

In a country the size of Australia, of course one Commissioner with two hats to wear and a handful of staff cannot promise frequent face to face meetings everywhere. What I can promise is to take communication seriously as a two way process.

The fact that every 8 weeks or so my reports to my colleagues on the Commission are also made available to the public is one part of that commitment. But again I want to emphasise that we are looking for more input in return - on the broad level of issues which we should be taking up as priorities, and on the detail of how we implement projects and make decisions.

I will be holding a summit meeting with national peak disability representative organisations to :

  • Discuss how far we have come in implementation of the DDA;
  • Review effective strategies for using the DDA and
  • Begin the process of formulating an appropriate agenda and plans of action for implementation of the DDA into its second decade.

We will of course be reporting back to the community as soon as possible on the results of this summit and seeking feedback broadly on proposals which come out of it.

Public inquiries

Public inquiries are one of the most important methods which the Commission has used to collect views and information on pressing human rights issues, and to gain increased attention for and action on those issues.

The type of national inquiries which Brian Burdekin made his trademark - the homeless children and mental illness inquiries - and the inquiry led by Ron Wilson on separation of Aboriginal children from their families, were million dollar exercises with a dedicated project team conducting hearings across Australia.

They stretched over years, and severely stretched HREOC's resources, even in the days when we had substantially greater resources available than now.

More recently in HREOC's disability work. we have conducted a number of public inquiries on a more modest scale. This sort of inquiry places heavy emphasis on use of the internet to disseminate and gather information more quickly and cheaply.

The more expensive and logistically demanding method of face to face hearings is only used sparingly, once internet based submissions and discussion have identified issues, options and the key parties with information and ideas to contribute.

This new style of inquiry is our standard method for assessing temporary exemption applications under the DDA.

We have also applied it with good success to a small number of complaints where we have sought, and the HREOC President has agreed, to have a complaint investigated by a public inquiry method because of the broad significance of the complaint and the need for broader input than the parties can provide.

We can also conduct a public inquiry where the Attorney-General gives the Commission a reference to inquire into. Our report last year on access to electronic commerce and related matters was this kind of inquiry. A follow up report on actions arising from the inquiry was released last week - it is on our website or it is available in other forms on request.

Last but not least, we can conduct inquiries at our own initiative.

The best way to see HREOC conduct an inquiry on an issue is to write or email to us asking for it to happen. I am not saying we will automatically agree: we do have issues of statutory jurisdiction and available resources to consider. I am saying that we treat such requests seriously.

Our inquiry on wheelchair accessible taxi services is an example of this. I decided to conduct this inquiry on the basis of community representation, as well as our own knowledge of the issues from complaints and other experience. A draft report is available on our web site for comment up to 21 December.

Effective use of complaints

When the DDA was being drafted in 1991, complaint processes were seen by government, community and HREOC alike as insufficient to achieve large scale change. Everyone expected the provision for disability standards to be the most important mechanism for achieving the objects of the legislation.

A decade later, that is not how things have gone.

No standards under the DDA are yet in place - although transport standards are very close to entering into force and standards on access to premises and education are also moving forward.

The process of negotiating standards has brought some important results in itself. But most results achieved with the DDA have involved the use of complaints one way or another.

I have already mentioned the public inquiry approach to complaints as one initiative aimed at increasing the effectiveness of the DDA as a means of achieving systemic change.

But to conduct inquiries into complaints, HREOC - or any other discrimination agency - needs to be receiving suitable complaints in the first place. Also, the public inquiry approach is not going to be appropriate for every complaint.

I would like to see some discussion of ways that we can make it easier for the community to use the power of the legislation. Here are some questions which we raised at the "Disability with Attitude" conference earlier this year but to which we have had only limited responses so far:

  • Would "fill in the blanks" complaint forms for different issues - like a "defect notice" for premises access issues - result in more complaints, or more effective complaints, than the present single standard HREOC complaints form?
  • Is your organisation interested in assistance or advice on developing a standard "just sign here" complaint on a few priority issues?
  • Is your organisation interested in a more "hands on" workshop session on how to turn priority issues into complaints?
  • Do you or your organisation have access to a web site, email list, press contact or other means where you could - if you wished - publicise the fact that you have made a complaint and what's in it?
  • What else is holding people back from more active use of the DDA?

I encourage you to send to me any thoughts you have on these issues.