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Annual Report 2001-2002: Chapter 5

Human Rights and Equal Opportunity Commission Annual Report 2000-2001

Chapter 5: Disability Rights

Acting Disability Discrimination Commissioner- Dr Sev OzdowskiActing
Disability Discrimination Commissioner and Human Rights Commissioner,
Dr Sev Ozdowski OAM

In his work to
date Dr Ozdowski has given emphasis to:

  • Increased communications
    through face to face consultation with disability community and industry
    bodies and enhanced print material to complement the Commission’s
    well established email and web based communications in the disability
    area
  • Increasing
    public awareness of the achievements being made (and the further achievements
    which are possible) by the community, industry, government and the
    Commission using the Disability Discrimination Act to improve access,
    opportunity and participation for Australians with disabilities
  • Seeking more
    effective means for increasing equality of opportunity for people
    with disabilities in employment and education - to complement the
    substantial progress being made in accessibility in areas such as
    buildings, public transport, and communications issues such as captioning
    and web accessibility
  • Giving additional
    attention to Indigenous people with disabilities, in particular children,
    and to disability issues and related discrimination affecting older
    Australians.

Deputy Disability Discrimination
Commissioner

Mr Graeme Innes
AM continued to serve on a part time basis throughout 2000-01 as Deputy
Disability Discrimination Commissioner. In this role he assists with
the handling of public enquiries, exemption applications and the development
of standards under the Disability Discrimination Act.

Education and Promotion/Compliance

Dr Ozdowski and
staff have increased the Commission’s program of consultation with
disability organisations and relevant industry bodies to ensure that
these organisations are aware of possibilities for constructive use
of the legislation and to discuss suggestions for further Commission
projects.

Internet usage
continues to help increase efficiency and effectiveness of the Commission’s
disability rights work. Public use of the disability rights area of
the Commission’s web site continues to increase rapidly with over
1000 page hits per day being received on the Commission’s disability
rights web pages.

Research and policy

Access to electronic commerce

Following its report
in June 2000 on access to electronic commerce and other new service
and information technology by people with disabilities and older Australians
,
the Commission has been assisting government and industry bodies to
develop initiatives in this area, including through an Accessible E-commerce
Forum sponsored by the Commission and the Australian Bankers Association.
A major response to the report was the presentation to the Commission
of an industry action plan by the Australian Bankers Association in
April 2001. This plan provides for development of industry accessibility
standards on automatic teller machines, EFTPOS and voice response services
and for implementation of best practice accessibility in internet banking.

The Commission’s
report recommended that governments should be more active in providing
superseded computer equipment for use by people with disabilities and
older people. At a ceremony hosted by Dr Ozdowski in May 2001 the Attorney-General
provided a lead by donating 50 computers to disability and representatives
of older persons’ organisations.

Public transport: Accessible
taxis

A public inquiry
on aspects of wheelchair accessible taxi services was approved by the
Commission on 2 May with a closing date for submissions of 3 July 2001.

Sterilisation

A report to the
Commission on developments since the release of the 1997 report on The
Sterilisation of Girls and Young Women in Australia
was made publicly
available in April 2001. The report was commissioned as a joint project
between the Disability Discrimination Commissioner and Sex Discrimination
Commissioner. A number of follow up actions are being discussed with
relevant parties including the Attorney-General and the Minister for
Health.

Public inquiries into complaints

In 1999 the then
acting 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 a 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; and
  • 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 captioned movies
initiative arising from a public complaint undertaken by the Commission
into complaints in this area was launched at a reception on 9 April
2001 by Dr Ozdowski with industry and community representatives. Positive
press and television publicity was received.

The Attorney-General
sent a message of support in which he said: “This agreement to
show captioned movies followed a complaint under the Disability Discrimination
Act lodged by a man who was deaf and who could not enjoy movies with
his family. The Commission, recognising that the complaint raised broad
policy issues, dealt with the complaint as a public inquiry, allowing
input from other areas of the movie industry and the disability field.
I applaud this innovative use of the legislation to achieve positive
partnerships working towards systemic change.”
A committee has been established which will be responsible for overseeing
the implementation of the proposal developed by industry and an initial
program for showing open captioned films in a number of cinemas throughout
Australia is already available. Commission staff will continue to provide
advice to the committee and a review of developments will be undertaken
in April 2002.

Closed captioning: broadcast
television

In 1999 the then
acting 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 were 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, which commenced from 1 January 2001 and
require captioning of news, current affairs and prime time broadcasting.
The Commission is continuing discussions with industry and consumer
representatives with a view to setting an agreed timetable for further
expansion of captioning.

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.

This inquiry was
successfully concluded on 6 April 2001 with the announcement by each
of Telstra, Optus and Vodafone of schemes to provide remedies.

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.

The Commission
views the temporary exemption mechanism as an important mechanism for
managing the process of transition over time from discriminatory and
inaccessible systems and environments to inclusive, accessible non-discriminatory
systems and environments. Exemption processes are open to public participation,
through online publication of the Commission’s notice of inquiry
and details or text of applications and also publication of submissions
from interested parties.

Applications decided

No new applications
for exemption were received in the period 1 July 2000 to 30 June 2001.
The following decisions were made on applications previously received:

Regional Airlines Association

The Regional Airlines
Association of Australia (RAAA) applied in 1999 for an exemption for
five years regarding access to small aircraft by persons using wheelchairs
and similar mobility aids. After taking submissions in response to a
notice of inquiry, the Commission decided in August 2000 to refuse this
application on the basis that the application and the process of public
discussion had not identified appropriate conditions such that an exemption
would advance the objects of the legislation.

Kendell Airlines

One of the members
of the RAAA, Kendell Airlines, submitted its own application in April
2000 for an exemption regarding access to small aircraft by persons
using wheelchairs and similar mobility aids. This application was supported
by material additional to that in the RAAA application, including an
action plan. An exemption was granted in August 2000 for a period of
five years regarding

  • lack of access
    to aircraft seats for people requiring wheelchair access, where this
    is prevented by limited aisle width
  • lack of access
    to aircraft or seats for passengers requiring lifting, where this
    cannot be performed consistently with the requirements of applicable
    occupational health and safety laws due to space constraints of the
    particular aircraft.
  • requirements
    for a passenger to be accompanied by an assistant for passengers unable
    to understand instructions or to exit unassisted in an emergency.

This exemption
(available on the Commission’s web site or in other forms by request)
is subject to a number of conditions agreed to by Kendell in response
to issues raised in public submissions and intended to promote improved
access over time for people with disabilities using regional air services.

Applications awaiting decision

Cattle Camp Motel

An application
regarding accessibility of proposed demountable units at a rural Queensland
motel, affected by flood height requirements remains on hold pending
a response by the applicant to a number of issues raised in submissions.

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.

Melbourne trams exemption

An application
for review of the Commission’s decision made in March 1999 regarding
physical access to Melbourne trams was made by a number of parties but
was withdrawn in April 2001. In this context it is relevant to note
that, consistent with the timetable set in the Commission’s exemption
decision, accessible trams are expected to begin to enter service in
Melbourne in September 2001 and that considerable preparatory work on
infrastructure has been performed.

Olympic Roads and Transport
Authority

In June 2000 the
Commission granted an exemption, on application from the Olympic Roads
and Transport Authority (ORTA), to protect bus operators 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 exemption was granted because in the Commission’s
view the objects of the DDA are best served if operators who acquire
accessible buses are free to determine on which services to deploy those
buses, rather than this being determined by the Commission or other
discrimination authorities.

After an application
to the Administrative Appeals Tribunal for review of this decision the
exemption was varied by consent of the parties to include conditions
to protect existing regular users of accessible vehicles. Nothing in
this process has invalidated the Commission’s original reasons
for the decision.

Action Plans under the Disability
Discrimination Act

As at 30 June 2001,
211 plans were registered with the Commission (increased from 170 as
at June 2000), comprising 24 business enterprises, 20 non-government
organisations, 30 Commonwealth government, 28 State government and 76
local government organisations, and 33 education providers. The register
of Action Plans, and those plans provided electronically to the Commission
(150 of the total), 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.

In January 2001
Dr Ozdowski wrote to organisations which had submitted action plans,
asking them to report if possible on implementation and evaluation of
their plans. Revised plans or implementation reports have been submitted
steadily in response through 2001.

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
and advance the objects of the Act thereby.

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

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 continues to assist the Board to this
end through its membership of the Board’s Building Access Policy
Committee. Progress in this process has improved during 2000-01 and
it is anticipated that a draft standard, harmonising the requirements
of the DDA and an upgraded Building Code, may be ready for adoption
by June 2002.

Education

A taskforce of
the Ministerial Council on Employment, Education, Training and Youth
Affairs is consulting on draft standards on education. The Commission
is not included in the membership of this taskforce but is providing
advice to participants on request.

Employment

Previous annual
reports have detailed extensive co-operative work by the Commission,
business, industry and community groups towards the development of employment
standards but have also noted a lack of consensus for proceeding with
regulatory standards. Dr Ozdowski has commenced discussions with relevant
parties towards identifying means of making better use of the work already
done in this area.

Public transport

The Commission
has been assisting the Attorney-General’s Department and the Department
of Transport towards finalising revised draft standards on accessible
public transport for adoption, which is hoped to occur in the Spring
2001 session of Parliament, following Cabinet approval in October 2000.