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Annual Report 1999-2000: Disability Discrimination

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Annual Report 1999 - 2000

Susan Halliday, Acting Disability Discrimination CommissionerDisability
Discrimination

Commissioner Disability Discrimination
Commissioner

Susan Halliday has
been the acting Disability Discrimination Commissioner since 1999. This
is in addition to her duties as the Sex Discrimination Commissioner.

Mr Graeme Innes, Deputy Disability Discrimination CommissionerDeputy
Disability Discrimination Commissioner

Mr Graeme Innes AM
commenced work in October 1999 on a part time basis as Deputy Disability
Discrimination Commissioner, among his other work for the Commission as
inquiry commissioner and for a number of other tribunals. This position
has been created and funded by the Commission using internal savings made
in the Commission's disability policy area, principally by exploiting
the capacities of the internet for greater efficiency and economy in a
number of the Commission's processes.

The Deputy Commissioner
position was established to

  • advise and
    assist the Disability Discrimination Commissioner (or other member
    or officers of the Commission responsible from time to time for disability
    discrimination complaints) with exercise of functions and powers regarding
    Disability Discrimination Act complaints, including conduct of inquiries
    into disability discrimination complaints;

  • advise and
    assist the Disability Discrimination Commissioner in promotion of
    compliance with and awareness of the Disability Discrimination Act;

  • assist the
    President with conduct of the reference from the Attorney-General
    on access to electronic commerce for older Australians and people
    with a disability.

Research and policy

Access to electronic commerce
reference

"New technology and
e-commerce are already benefiting older Australians and people with a
disability, and have enormous potential to do more. The digital divide
can continue to be narrowed, helped along by the efforts of government,
business and community groups." Graeme Innes AM, Deputy Disability Discrimination
Commissioner, releasing the Commission's report.

The report on this
reference was tabled by the Attorney-General on 8 June 2000. Press releases
welcoming the report and undertaking to take implementation actions were
issued by the Attorney; the Parliamentary Secretary to the Minister for
Communications, Information Technology and the Arts; the Australian Bankers
Association; the Australian Internet Industry Association and the Australian
Tax Office.

The report welcomes
advances made by internet service providers, banks and the Federal Government
in combating serious access problems faced by older Australians and people
with a disability. These problems are common to services provided by many
industries including government, financial services, retailers, communications
companies and web service providers. The report found that some older
people and people with disabilities face a number of problems in using
financial services in bill-paying and phone-based facilities as well as
significant barriers to accessing the world-wide web.

Recent statistics
released by the Australian Bureau of Statistics highlight a digital divide
affecting older Australians in particular, although also indicating that
the gap is narrowing in some areas of financial and retail services.

The report noted
that for some people with disabilities, these systems are experienced
as a great advance in access to information and services. The self service
model cannot be expected to suit all users, and may present serious access
barriers to some people with disabilities, but for other people availability
of this model represents independence and equality.

In conducting research
for the Inquiry the Commission consulted with a number of key e-commerce
service providers including the internet and banking industries and with
peak disability and older persons' groups. A particularly significant
outcome is the agreement by the Australian Bankers Association to formation
of a joint working party to progress access issues identified in the report
for the banking industry. The Internet Industry Association plans to run
an awareness campaign among members to promote better access to web-sites
and Internet-based services.

The report, press
releases and other documents are available on the Commission's internet
site.

Public inquiries into complaints

In 1999 the Disability
Discrimination Commissioner began applying public inquiry processes to
the investigation of complaints in appropriate cases, including use of
the internet for distribution of notices of inquiry and receiving and
publishing submissions. This approach has been applied where the subject
matter

  • requires consideration
    of interests of, and information from, persons or organisations beyond
    the immediate parties to the complaint for the purpose of identifying
    appropriate options for resolution of the matter by the parties or
    decisions by the Commission;

  • involves inquiry
    into issues of public or social policy rather than principally concerning
    allegations regarding individual behaviour;

  • can be investigated
    openly without unreasonable disclosure of personal information or
    breach of other duties of confidentiality.

Application of this
approach in appropriate cases also has potential benefits in promotion
of awareness of and compliance with the legislation.

The President decided
on assuming responsibility for complaint handling in April 2000 to continue
this approach on a trial basis. Results in the limited number of matters
where this approach has been applied to date have been encouraging.

Captioned movies

The Disability Discrimination
Commissioner commenced in 1999 a public investigation into complaints
regarding lack of provision of cinema captioning for deaf and hearing
impaired viewers. After receiving submissions from interested parties
the Commissioner convened and chaired a public forum in February 2000
to progress the matter. Representatives from major movie exhibitors, movie
distributors, deaf and hard of hearing advocacy groups and service organisations,
and the captioning sector attended. Movie exhibitors and distributors
agreed to develop a proposal on how to improve access for deaf and hard
of hearing movie patrons in consultation with the hearing advocacy groups
and others in attendance. After a further meeting in April 2000 a process
of trials of open captioned movies were agreed upon to process assessment
of available captioning technologies.

The Commission is
pleased to have been able to facilitate these co-operative processes between
industry and consumers. The innovation of applying a public inquiry approach
to the complaint investigation process has assisted in achieving an industry
wide approach and in ensuring that all interested parties have an opportunity
to receive and contribute relevant information and perspectives.

Closed captioning: broadcast
television

In 1999 the Disability
Discrimination Commissioner commenced a public inquiry into complaints
regarding limited provision of captioning for deaf and hearing impaired
viewers on broadcast television. Submissions in this process have been
made publicly available through the internet for the information of interested
parties and to assist the Department of Information Technology, Communications
and the Arts in preparation of captioning standards under the Broadcasting
Services Act.

The Commission's
update paper on this inquiry in March indicated a view that the Disability
Discrimination Act would not be displaced as a matter of law by the introduction
of captioning standards under the Broadcasting Services Act, but that
depending on their content such standards (when made) could be accepted
as adequately remedying the subject matter of complaints in this area.
Standards under the Broadcasting Services Act as yet do not exist and
the Commission is now considering what further action would be appropriate
on these complaints.

Public transport: Sydney Cityrail
station access

In July 1999 the
Commission received a representative complaint under the Disability Discrimination
Act lodged on behalf of people who use wheelchairs regarding current lack
of accessibility of Summer Hill railway station, and seeking implementation
of accessibility at that station in the 1999-2000 financial year.

After a public process
of issuing a notice of inquiry and taking submissions the Disability Discrimination
Commissioner decided to exercise the power to decline to deal further
with the complaint. (As of April 13, 2000 this power is now vested in
the President).

The Commissioner
said:

CityRail's EasyAccess
program commitments for achieving physical accessibility of CityRail
stations, and current progress in implementation, follow the first
five year target set out in the draft Disability Standards for Accessible
Public Transport fairly closely.

For the purposes
of this complaint I regard achievement of accessibility of stations
at, or close to, the rate contemplated by the draft Standards as an
adequate remedy.

This means that
I regard a complaint about a particular station as adequately remedied
by an acceptable overall rate of achievement of accessibility of stations,
whether or not the particular station is first on the list of stations
to be made accessible.

The Commission
is not best placed to judge issues of priority of one station over
another within an overall program where acceptable progress is being
made. If it is accepted that not every station can be made accessible
immediately, in my view the DDA has very little bearing on which stations
should be upgraded first. These are more appropriately seen as issues
for decision through political processes and for determination by
transport operators.

She also noted that

... this decision
does not preclude future complaints regarding access to this or other
stations if progress in implementation of the Easy Access program
does not continue at the projected rate in line with that contemplated
by the draft Standards, or if the most recent commitments regarding
Summer Hill station specifically are not met.

Likewise, this
decision does not preclude complaints on other physical access issues
which may arise regarding boarding and disembarking from trains (including
in relation to needs for assistance), or other issues affecting access
to rail services (including access to announcements, timetables and
other information).

Electoral access

A public inquiry
into an individual complaint regarding a range of barriers to accessibility
in recent local government elections led to the complaint being conciliated,
with agreement by the parties to the establishment by the Australian Electoral
Council _ of which all Electoral Commissions are members _ of a committee,
including the Commission and community representation, to develop a standard
definition for access, and set benchmarks for its achievement over a period
of years. The Commission met in June 2000 with representatives of the
Australian Electoral Council to discuss terms of reference for this committee.
This outcome and the open nature of the process leading to it have been
widely welcomed by disability community organisations.

Telecommunications

Interference from
digital mobile phones can be so severe that some people who use hearing
aids are unable to use them and can therefore be denied access to mobile
phone services. In September 1999 the Commission, in consultation with
relevant parties, announced a public inquiry into the issue, prompted
by a representative complaint made under the Disability Discrimination
Act on behalf of people who use hearing aids or cochlear implants.

The inquiry has provided
a forum for exchange of community and industry views about better access
to solutions and for clarifying the responsibilities of service providers
and mobile phone suppliers. The report finalising this inquiry is planned
for July 2000.

Access to premises

As in previous years
the Commission has continued to give a high priority to issues of access
to premises in view of their prominence in complaints, frequent requests
for information and advice, and an increasing tendency for approaches
to be made to the Commission (whether by way of formal exemption application
or less formally) as part of building or development approval processes.

Like other interested
parties the Commission recognises that the main avenue for progress in
improving accessibility of buildings is the process of revision of the
Building Code of Australia by the Australian Building Codes Board towards
a level suitable for recognition as complying with the Disability Discrimination
Act, including through endorsement as a Disability Standard under the
Act. The Commission has assisted the Board to this end through its membership
of the Board's Building Access Policy Committee. Progress in this process
has been slow thus far and significant matters remain unresolved.

Pending this, the
Commission has been seeking to develop appropriate measures to enable
all parties to deal with their rights and responsibilities in this area.
The Commission commenced discussions in April 1999 with local government
representatives about possible responses to the Federal Court decision
in Cooper v HREOC and Coffs Harbour Council, which exposed councils to
significant liability under the Disability Discrimination Act for permitting
actions subsequently found to be unlawful discrimination, even where they
make reasonable decisions in approving building or development applications.
In June 1999 the Commissioner issued for consultation a draft policy on
exercise of relevant powers under the Act to decline complaints where
an appropriate alternative remedy is available or has been provided through
local government procedures. The Commission did not proceed with this
policy in view of responses received _ some of which condemned the proposal
for doing too much, some for not doing enough, but few expressing support.

An alternative path
in response to Cooper v HREOC would be for local government authorities
to seek exemption from potential liability under the Disability Discrimination
Act in relation to building or development approvals, using the mechanism
in section 55 of the Act. To be considered, applications for exemption
would need to demonstrate to the Commission that the objects of the Act
would be advanced by allowing local authorities to apply their own appropriate
procedures and criteria to relevant decisions free from potential liability
under the Act. To date no applications in these terms have been made.

Sterilisation

The Commission has
participated in meetings of the Special Medical Procedures Committee of
the Family Court which is working to develop guidelines to be applied
when sterilisation procedures are proposed to be carried out on young
women with intellectual disabilities.

Promotion of awareness, understanding
and compliance

Use of internet and public
processes

Internet usage continues
to help increase efficiency in the Commission with regard to reduced resources
in disability rights policy work while pursuing increased effectiveness.
The position of Deputy Disability Discrimination Commissioner has been
funded principally by savings achieved by use of the internet as the principal
publication and communications medium.

Public use of the
disability rights area of the Commission's internet site continues to
increase rapidly. For example, there were 4108 hits on the disability
rights index page (in its graphics and text only forms) in May 2000, compared
to 2440 in May 1999.

Guidelines

Guidelines and advisory
notes are available on a number of issues under the Disability Discrimination
Act through the Commission's internet site and on request. The Commission
has indicated it will take these guidelines and notes into account in
complaint handling and in decisions on exemption applications. They are

  • Advisory Note
    on public transport;

  • Insurance and
    Superannuation Guidelines;

  • Advisory Notes
    on Access to Premises; and

  • World Wide Web
    Access (updated May 1999 to take into account the latest recommendation
    from the World Wide Web Consortium).

The Commission also
maintains Frequently Asked Questions materials on a number of areas covered
by the Disability Discrimination Act. These materials draw on responses
to individual enquiries as well as the Commission's complaint handling
experience, participation in policy processes and relevant court and tribunal
decisions. In particular, extensive Frequently Asked Questions materials
are available regarding employment.

Exemptions

Under section 55
of the Disability Discrimination Act the Commission has power to grant
temporary exemption from provisions of the Act which make discrimination
unlawful. The Commission's policy on exemption applications is obtainable
on the Commission's Internet site or on request.

When the Act was
introduced Disability Standards were envisaged as the main mechanism for
managing the process of transition over time from discriminatory and inaccessible
systems and environments to inclusive, accessible non-discriminatory systems
and environments. Particularly, given delay in and in some cases poor
prospects for adoption of Standards, the Commission views the temporary
exemption mechanism as important for the same purpose and as capable of
wider application than it has received to date.

However, the Commission
has made clear in a number of decisions that the exemption mechanism is
not appropriate for use simply to provide a shield against complaints
(including on unjustifiable hardship grounds) without some reason to conclude
that granting an exemption would advance the objects of the Act.

Pursuant to the Commission's
policy on exemptions under the Disability Discrimination Act, consideration
of exemption applications is open to public participation, through publication
on line of the Commission's notice of inquiry and details or text of applications
and also of submissions from interested parties so that the public has
access to a full range of views.

Applications decided

W.A. Firearms
Act:
The Commissioner of Police for Western Australia applied for
an exemption concerning decisions to refuse permits or licenses under
the Firearms Act 1973 (WA) and related matters. After issuing a notice
of inquiry which canvassed options for and against such exemption, the
Commission decided in May 2000 not to grant it. In the Commission's view
an exemption had not been shown to be required, since complaints regarding
legitimate decisions and actions can be expected to be declined under
the DDA as not unlawful, or as more appropriately dealt with through the
appeal procedure under the Firearms Act.

Gladstone Touch
Association:
The Commission decided in September 1999 to grant an
exemption to the Gladstone Touch Association. The exemption for a period
of five years was granted from section 23 of the Act (regarding access
to premises), and also from sections 24 (provision of goods, services
and facilities) and 27 (clubs and associations) to the extent that they
relate to lack of ramp access to upper level additions to the premises
concerned, on condition that the Association report to the Commission
within three years from the date of this decision on progress towards
provision of access to its premises. The Commission accepted that granting
an exemption in this case would promote the object of the Act to eliminate
discrimination as far as possible, taking into account the recognition
by section 55 of the Act that achievement of non-discriminatory access
may need to occur over a period of some years; the submission by the applicant
that it lacked sufficient financial means to provide access at present
but was committed to raising funds for provision of access to the proposed
facility by 2004, and that local government approval to permit the development
to proceed will not be forthcoming without some form of certification
that requirements under disability discrimination legislation have been
addressed; and the lack of any contrary views received in response to
the release of a proposal to grant this exemption.

Applications awaiting decision

Regional Airlines
Association:
The Commission presently has before it an exemption application
from the Regional Airlines Association of Australia (RAAA) regarding access
to small aircraft by persons using wheelchairs and similar mobility aids.
A notice of inquiry has been issued and submissions taken. Further action
on this application is being held pending further advice from the applicants.
Kendell Airlines: One of the members of the RAAA, Kendell Airlines, submitted
its own application more recently supported by material additional to
that in the RAAA application including an action plan under the Act..
The Commission wrote to the airline in June 2000 seeking responses to
a number of issues raised in submissions prior to making a decision on
this application.

Olympic Roads
and Transport Authority:
In May 2000 the Commission received an exemption
application from the Olympic Roads and Transport Authority (ORTA) on its
own behalf and on behalf of other relevant government agencies in New
South Wales, the Australian Capital Territory, Queensland and Victoria
as specified in the application; Bus 2000 Ltd, a company established to
procure (under contract with ORTA) the required numbers of buses, coaches,
drivers and support staff for the Olympic and Paralympic bus task; and
public and private bus operators in New South Wales, the Australian Capital
Territory, Queensland, South Australia and Victoria from whom ORTA will
be procuring accessible buses during the Olympic and Paralympic Games
periods.

The exemption was
sought for the period of ORTA's operations in connection with bus transport
services for the Olympic and Paralympic Games, that is from 2 September
2000 to 4 November 2000, a total period of 9 weeks. The purpose of the
application was to protect bus operators, ORTA and other parties concerned
from liability which might otherwise arise from the temporary transfer
of accessible buses from other services to Olympic and Paralympic related
services.

The Deputy Disability
Commissioner issued a notice seeking comment on a proposed recommendation
to the Commission to grant the exemption, on the basis that

  • If an exemption
    is not granted, bus operators who have brought accessible vehicles
    into operation face a potential liability (in making those vehicles
    available to ORTA and therefore temporarily withdrawing them from
    other services) which is not faced by operators who have not made
    the same progress in providing non-discriminatory services (and who
    therefore have no such vehicles to provide to ORTA). It is appropriate
    for the Commission to use its exemption power to ensure that the DDA
    provides incentives rather than disincentives to measures to achieve
    access and equality.

  • The potential
    complaints under the DDA which this exemption would preclude would,
    in essence, be concerned with which services accessible buses should
    be applied to in the relevant period, rather than with whether and
    at what rate operators should be required to acquire and deploy accessible
    vehicles. I endorse the view previously expressed by the Commission,
    in its reasons for granting an exemption regarding Melbourne trams,
    and by the Disability Discrimination Commissioner, in her decision
    on a complaint regarding access to Summer Hill railway station, that
    the Commission is not best placed to decide issues of allocation of
    accessible services as between different locations. The objects of
    the DDA are best served if these issues of allocation are determined
    by operators in consultation with users of services.

Submissions closed
on 13 June 2000 and the Commission granted the exemption for the above
reasons.

Cattle Camp Motel:
Submissions closed on 5 May 2000 on an exemption application regarding
accessibility of proposed demountable units at a rural Queensland motel,
affected by flood height requirements. The applicant has been asked to
respond to a number of issues raised in submissions. Further action in
this matter awaits this response.

Infinity (Gold
Coast):
The Commission issued a notice of inquiry on this matter calling
for submissions by 22 June 2000. The application concerns access limitations
of a proposed entertainment venue. The notice of inquiry indicated that
the matter appeared to be in the same category as a number of applications
previously refused by the Commission and requested comment on a proposal
to refuse the application accordingly.

No comments were
received and the Commission refused the exemption.

Wild Bunch Florists:
Submissions closed on 23 June on an application for exemption from liability
under the Act, for a period of five years, regarding lack of wheelchair
access to premises in King William Street Adelaide.

The Commission refused
the exemption because there was no substantial prospect of an unlawful
act occurring if the exemption was not granted.

Review of decisions

Persons whose interests
are affected by a decision on an exemption application may seek to have
the Commission's decision reviewed by the Administrative Appeals Tribunal.
An application for review of the Commission's decision made in March 1999
regarding physical access to Melbourne trams was before the AAT as at
the time of writing.

Action Plans under the Disability
Discrimination Act

As at 20 June 2000,
170 plans were registered with the Commission, comprising 36 business,
non-government and government business enterprises, 31 Commonwealth government,18
State government and 59 local government organisations, and 29 education
providers. The register of Action Plans, and plans provided electronically
to the Commission, are available through the Commission's internet site.
This assists other organisations interested in developing their own plans
and individuals interested in assessing the effectiveness and implementation
of an organisation's Action Plan.

Legislative reform and assessment

Disability Standards

The Disability Discrimination
Act provides for "Disability Standards" to be made by the Attorney-General
in specified areas, which currently include accommodation, administration
of Commonwealth laws and programs, education, employment and public transport.
Contravention of a Disability Standard is unlawful under the Act.

The Commission supports
adoption of Disability Standards as offering potential to increase certainty
and clarity of rights and responsibilities for relevant parties.

The Commission has
a function under the Disability Discrimination Act to advise the Attorney-General
regarding the making of standards. To date the Commission has performed
this function by practical participation in standards development processes
rather than by way of formal reporting.

Access to premises

The Commission welcomed
the amendment by the Human Rights Legislation Amendment Act 1999 of section
31 of the Disability Discrimination Act to allow for the development of
a Disability Standard on access to premises. This would permit adoption
under the Act of content developed by the mainstream building regulatory
regime and would provide industry, local government and other parties
with a clearer and more coherent set of rights and responsibilities. As
noted under Research and Policy, the Commission has been working extensively
with the Australian Building Codes Board for this purpose.

Education

The Commission is
not directly involved in the development of draft Disability Standards
on education by a taskforce of the Ministerial Council on Employment,
Education, Training and Youth Affairs. It is providing advice to participants
on request. The Commission understands that the taskforce intends to make
draft Standards available for consultation in 2000.

Employment

Previous annual reports
have detailed extensive positive work by the Commission, business, industry
and community groups towards the development of employment standards.
The Commission has not however, regarded as a priority, further work towards
standards on employment given the barriers and lack of consensus for proceeding.
This view also takes into account the "difficulty" of securing adoption
of standards even if and where (as with public transport) a standard is
drafted with clearer industry and community support, endorsed by Ministers,
and has passed the extensive and resource intensive Regulation Impact
Statement processes required.

Public transport

The Federal Department
of Transport advised in April that a proposal for adoption of the draft
Disability Standards for Accessible Public Transport (with some revisions
taking account of the Regulation Impact Statement process conducted from
1996 to 1999) had been prepared and at the time of writing was being considered
by government.

Last
updated 1 December 2001.