Skip to main content

Annual Report 2008-2009: Chapter 7

Annual Report 2008 - 2009

Chapter 7:
Disability Rights

Back to Contents


AR_200937.jpg

...............
Mr Graeme Innes AM
, Disability Discrimination Commissioner

7.1 Statement from the Commissioner

The
Commission’s policy work on issues of human rights and disability has
involved sustained focus, and engagement with government, disability community
experts and representatives, and industry bodies over many years, and
particularly since the passage of the Disability Discrimination Act in 1992.

This policy focus - clearly appropriate and necessary, since nearly
half the complaints received by the Commission concern disability - has
produced very significant results on particular issues (such as accessibility of
public transport and communications). But it is clear that even more
comprehensive social change is required, and possible, for the full and equal
enjoyment of human rights and social and economic participation and inclusion
for people with disability in Australia.

This year has seen significant progress in mapping out the journey from
exclusion to equality.

Australia ratified the Convention on the Rights of Persons with
Disabilities
(the Disability Convention) - which Australia, the
Commission, and the Australian disability community made major contributions in
developing.

The Australian Government has begun the process of developing a National
Disability Strategy to implement the Disability Convention. There are promising
similar developments well under way in several states. The Government has also
moved to put into practice the provisions of the Disability Convention, calling
for international cooperation on disability rights.

The Commission has received funding through AusAID to conduct a project, in
partnership with the Pacific Disability Forum to build the capacity and
knowledge of disabled people’s organisations and government
representatives in nine Pacific island countries to progress disability issues
in the Pacific.

The Attorney-General has added the Disability Convention to the international
instruments by reference to which the Commission’s statutory functions are
defined - recognising a major role for Australia’s independent
national human rights institution as part of Australia’s framework for
implementation and monitoring of the Disability Convention. We will be working
with government and the community to develop that role further in the coming
year.

Some of the improvements to the Disability Discrimination Act, recommended by
the Productivity Commission in 2004, have at last been made, with the passage of
the Disability Discrimination and Other Legislation Amendment Bill –
including confirmation that the Disability Discrimination Act includes duties to
make reasonable adjustments.

Adoption of Disability Standards on Access to Premises is now very close with
the tabling of draft Standards on Access to Premises and a bipartisan Legal and
Constitutional Affairs Committee recommendation for the Standards to proceed
- subject to a series of improvements which very closely reflect the
Commission’s submissions. This follows many years of effort by
governments, the Australian Building Codes Board, the Commission, and building
industry and disability community representatives working in partnership. This
project has been under discussion for almost a decade, during which thousands of
buildings have been built or renovated without sufficient access for people with
a disability. The Committee has now delivered a thorough and realistic set of
recommendations which should allow government and its partners to move forward
quickly to complete this vital project. This is another area of progress in
human rights law reform, with potentially even larger impacts for social
inclusion in practice than the Disability Standards for Accessible Public
Transport. These Standards will provide certainty for industry, and promote
better access for all of us (particularly as we grow older, as individuals and
as a community), through a nationally consistent framework which harmonises
building laws and discrimination laws.

Substantial progress has also been made in a number of other areas as
detailed in this report. However, it remains all too clear that, for many people
with disability, their experience remains one of disadvantage for them and their
families; of exclusion from participation and opportunity; in many cases an
experience of abuse or neglect; an experience, in short, of denial of human
rights.

I hope, and believe, that the Disability Convention will give Australian
governments fresh impetus and opportunity to change these unacceptable realities
to the benefit of all of us in Australia.

Top | Contents

7.2 Research and policy

7.2.1 Convention
on the Rights of Persons with Disabilities

In July 2008, the Commission welcomed Australia’s ratification of the
Disability Convention, and commended both the current and the former Government
for their support in this area. The Commission has continued to work with
government and with disability community experts to assist in development of
effective implementation strategies for the Disability Convention. This has
included contribution to development of the forthcoming National Disability
Strategy, work to develop options for increasing awareness and understanding of
the Disability Convention amongst disability advocates and relevant policy
makers, and contributing to development of the Australian Government Overseas
Aid Program’s disability strategy.

7.2.2 Employment and
disability

During 2008, the Commission welcomed the commencement of work towards
development of a National Disability Employment Strategy, which was the
principal recommendation of the Commission’s National Inquiry into
Employment and Disability. The Commission’s Inquiry report emphasised the
importance, in addressing this critical aspect of economic and social inclusion
for people with disability, of adopting a coordinated whole-of-government
approach - including in removing economic barriers to participation. The
Commission has been providing advice through the National Mental Health and
Disability Employment Strategy Advisory Committee, both to inform the shape of
the final National Disability Employment Strategy and to provide input on
specific initiatives on employment, including provision of employment related
services and supports. The Commission has also continued to contribute to work
on disability employment issues by the Department of Education, Employment and
Workplace Relations, the Australian Fair Pay Commission and Safe Work Australia
(formerly the Office of the Australian Safety and Compensation Council).

In view of the continuing under-representation of people with disability in
the Australian Public Service, and a continuing decline of employment of people
with disability in the Australian Public Service, the Commission has emphasised
the need for Government to lead by example on employment of people with
disability. It has also outlined a series of possible strategies by which
employment of people with disability in the Australian Public Service could be
improved, drawing on the Commission’s Final Report of the National Inquiry
into Employment and Disability, and the Australian Public Service’s own
Management Advisory Committee report (Employment of People with Disability in
the APS).

7.2.3 Captioning and
media access

The Commission has continued to contribute to the investigation, by the
Department of Broadband, Communications and the Digital Economy, into media
access issues, including captioning. Pending the results of this investigation,
the Commission has assisted government and industry bodies and community
representatives in negotiating for practical progress in this area in several
respects:

  • Free to air television captioning: Broadcasters have agreed, through
    the temporary exemption process administered by the Commission, to further
    increases in captioning levels on free to air television. Broadcasters have
    agreed to increase captioning levels to reach
    85 percent of programming
    during the broadcast day over the next three years, and to review and report on
    possibilities for further subsequent increases. The outcomes achieved through
    the Commission’s processes in this area are clearly a significant advance
    on the current requirements of the Broadcasting Services Act 1992 (Cth), which
    apply only to news, current affairs and prime time programming. Accordingly,
    this has been estimated to require between 38 and 40 percent captioning. The
    Commission has also assisted in discussions between industry and consumer
    representatives on quality of captions.
  • Subscription television captioning: Subscription television
    broadcasters are not currently subject to any specific captioning targets under
    the Broadcasting Services Act, but have submitted a proposal for further
    increases in captioning through the Commission’s temporary exemption
    process.
  • Cinema: The Commission welcomed the announcement by the Minister for
    Ageing, earlier this year, that funds would be made available to assist a number
    of independent cinemas to improve access. The Commission is assisting in
    discussions between the larger cinema chains and disability community
    representatives on possibilities for further expansion of cinema access,
    including trials of new technologies.

7.2.4 Electoral
access

The Commission has commenced discussion with government and with disability
community experts on options for ensuring that this fundamental civil and
political right to voting in a secret ballot is respected and ensured for all
people. These discussions commenced following the recommendation by the Joint
Standing Committee on Electoral Matters. The Committee recommended that the
trial of electronically assisted voting, undertaken in the most recent Federal
Election, not be persisted with on financial grounds. This recommendation was
made despite this being the only means to date offered for achieving a secret
ballot for Australians who are blind or have other print disabilities.

7.2.5 Health
access

The Commission has continued to work with government and with the Royal
Australian College of General Practitioners to promote the provision of
effective and equitable access to primary health care. One ongoing project
concerns the wider provision of adjustable-height examination beds to reduce one
of the many barriers to health care outcomes experienced by people with
disability.

7.2.6 Universal housing
design

By 2050, more than 26 percent of the population will be over 65, and almost
8 percent will be over 85. As people live longer, they are living a greater
part of their life with a disability - on average for almost 20 years. The
Commission has continued to work with governments, industry and community
advocates towards a national action plan on lifetime housing, which would
include the adoption of a nationally consistent set of low cost and no cost
universal design features. Such an outcome would improve the accessibility of
housing and enable people to remain living in their own homes as long as
possible, while they age, rather than being forced to move because of inadequate
access features.

Promising initiatives to respond to these emerging social, economic, and
human rights issues have occurred in 2008-09 at state government level,
including through the Victorian Government’s Build for Life program
which will include consideration of mandating greater accessibility in new
housing developments. Discussions of further national initiatives are well
advanced.

7.2.7 Violence against
women

The Commission has worked to promote more effective inclusion of disability
issues in national strategies and structures intended to reduce violence against
women and children. This work has been undertaken in view of clear evidence of
higher rates of violence and abuse of women and girls with disability, as well
as gaps in existing strategies and services for preventing and responding to
women and girls with disability experiencing violence.

7.2.8 Indigenous people
with disability

The Commission has commenced work to identify the impacts of hearing
impairment and deafness in Aboriginal and Torres Strait Islander communities.
Initial research conducted by the Commission indicates the impacts are
wide-ranging, significant and inhibit the enjoyment of many human rights. A
project is now under way, which will culminate in the production of a research
paper. The paper will collate evidence about the extent to which hearing
impairment and deafness, as one form of disability, can affect the rights of
Aboriginal and Torres Strait Islander peoples, as well as identify possible
solutions and opportunities for action.

Top | Contents

7.3 Exemptions

Under section 55 of the Disability Discrimination Act, the Commission has
power to grant temporary exemption from the unlawful discrimination provisions
of the Act.

Under the Commission’s temporary exemption policy, exemption processes
are open to public participation. This can be done through online publication of
the Commission’s notice of inquiry and details of applications, and
publication of submissions from interested parties. Further information about
the temporary exemption policy is available on the Commission’s website
at: www.humanrights.gov.au/disability_rights/exemptions/exemptions.html

The Commission views the temporary exemption mechanism as an important means
for managing the process of transition from discriminatory and inaccessible
systems and environments, to inclusive, accessible non-discriminatory systems
and environments.

7.3.1 Free to air
television captioning

Through the temporary exemption process under the Disability Discrimination
Act, free to air broadcasters - metropolitan and regional, including
public sector, as well as commercial broadcasters - have committed to
providing for further increases in captioning levels. The commitment is to reach
an average of 85 per cent of programming, between 6 am and 12 midnight on free
to air television, by the end of 2011. This builds on commitments, under an
earlier exemption granted by the Commission in 2003, which required captioning
levels to reach 70 per cent by 2008.

7.3.2 Subscription
television captioning

In 2004, the Australian Subscription Television and Radio Association
(ASTRA), on behalf of its member broadcasters, was granted an exemption, subject
to conditions. The conditions included the implementation by ASTRA members of a
plan for providing increasing levels of captioning during the exemption period,
and the submission to the Commission of a proposal for a further plan for
captioning. ASTRA has reported the required captioning levels as having been met
or exceeded and has submitted a proposal for further increases pursuant to a
second exemption application, which is currently being considered by the
Commission through a public inquiry process.

7.3.3 Queensland and
Western Australian Taxi Councils

Taxi industry representative bodies in these two states have applied for
their member radio co-operatives to be exempted from the Transport Standards
requirement that accessible cabs and other taxis have equal response times.

A decision on this matter has been deferred, pending further discussions on
possible alternative compliance measures with industry, government and community
representatives.

7.3.4 Regional Express
Airways

In October 2008, the Commission granted Regional Express Airways (REX)
temporary exemptions: permitting REX to require reasonable notice of
requirements for disability related assistance and reasonable advance check-in
periods; exempting REX from being required to assist passengers by manual
lifting where this is unable to be performed safely, on condition that REX
undertake and report on trials of improved access procedures; and permitting REX
to require passengers to be accompanied by an assistant where unable to
understand safety instructions.

7.3.5 Australian
Railways Association

During 2007-08, the Commission decided to grant a series of temporary
exemptions to members of the Australasian Railways Association (ARA) in relation
to provisions of the Disability Standards for Accessible Public Transport and of
the Disability Discrimination Act. These temporary exemptions were granted on
condition that its members meet a set of revised compliance requirements and
report to the Commission on the implementation of the revised obligations.
Decisions were deferred on a number of other issues, on which the ARA had also
applied for exemption, pending further consultation between ARA, community
representatives and the Commission.

The ARA had indicated that its application was, in part, a response to delays
in addressing areas of uncertainty through the first five-year review of the
Disability Standards for Accessible Public Transport. With the continuation of
this delay the ARA has been working, in consultation with the Commission and
community representatives, on a compliance code for accessibility in rail
services. It has advised that it will consider submitting a further exemption
application based on this code.

7.3.6 WizzBus

The Commission received an application from WizzBus Bus and Coach for a
temporary exemption under section 55 of the Disability Discrimination Act. The
application was in regard to a bus service to be established between Moorabin
airport and Melbourne under a contract being sought with the Victorian
Department of Infrastructure. The application indicated that WizzBus had not, to
date, been able to acquire an accessible 30 seat capacity bus to suit its
service. The application sought an exemption for five years, being the
anticipated initial contract period, to enable the service to commence and
enable WizzBus to verify the economics of operating a low floor route bus.

The Commission refused the application. While the objects of the Disability
Discrimination Act may be promoted by granting exemptions in return for
commitments to improve access over time, in this instance the application did
not provide any specific commitments, seeking simply to have five years during
which the Disability Discrimination Act need not be complied with. The
Commission noted that this decision prevented the applicant seeking to establish
a defence of unjustifiable hardship in response to complaints. However, the
Commission considered that the exemption process was not the appropriate vehicle
for seeking to establish such a defence.

Top | Contents

7.4 Promotion
of awareness, understanding and compliance

The Disability Discrimination Act provides that the Commission promote an
understanding and acceptance of, and compliance with, the Act. Since the
International Year of Disabled Persons in 1981, there have been a wide range of
government, community-based and commercial sources of disability awareness and
information provision. The Commission has sought to avoid duplicating this work,
and has instead concentrated on:

  • bringing together and making available practical information on how to
    achieve non-discriminatory outcomes
  • compliance promotion efforts which are closely connected to policy work and
    legislative and regulatory development, principally reported on under those
    headings in this report.

7.4.1 Website

The disability rights section of the Commission’s website continues to
be the area of the Commission’s information and education materials that
is used the most, with 1 355 896 page views recorded in 2008-09. This
level of usage reflects a particular effort made to provide as much practically
useful information as possible and to gather and act on user feedback.

7.4.2 Resource for
employers on mental health issues

The Commission is currently developing a resource for employers, which
provides practical guidance on a range of workplace adjustments or
accommodations for workers with mental illness. The resource aims to enhance
successful participation and productivity for these workers in the workplace. It
has been prepared jointly with Safe Work Australia (formerly the Office of the
Australian Safety and Compensation Council) and is now in the final stages of
preparation for release.

7.4.3 Resource for
business and local government

The Commission has continued to encourage local government and community
organisations to use, adapt and distribute its resource materials on access and
inclusion. This applies in particular to the Missed business resource for
small business. The Commission has re-issued the CD, The good, the bad and
the ugly,
which provides information and guidance about ensuring accurate
application of design and construction requirements for access. More than 8000
copies of this CD have been distributed to building professionals and access
consultants. Plans to finalise a partnership with a number of local government
bodies, to provide a copy of the CD to all commercial development applicants in
their areas, are well advanced.

7.4.4 Work with
Commonwealth agencies on accessibility issues

Physical access issues

The Commission has worked with the Department of Education, Employment and
Workplace Relations and the Department of Families, Housing, Community Services
and Indigenous Affairs to ensure that information on access issues is available
to participants in the Building the Education Revolution and Housing
Affordability funding programs. The Department of Education, Employment and
Workplace Relations has issued a fact sheet, with Commission input, which has
been circulated to all bodies accessing funds under the Building the Education
Revolution program.

The Housing Affordability Fund program has advised that recipients, whose
infrastructure projects include the construction of homes, will be expected to
complete a checklist which includes a number of access design features.

Information access
issues

In September 2008, the Commission established a WebWatch page on its website
to highlight web accessibility issues on government websites. When a website is
listed on the WebWatch page, the Commission notifies the heads of the agencies
or departments concerned, as well as the relevant Minister and the Australian
Government Information Management Office (AGIMO). The Commission also asks to be
advised of the remedial measures taken, so that the listing can be removed, if
appropriate. WebWatch is available at: www.humanrights.gov.au/disability_rights/webaccess/webwatch.htm.

This initiative has led to positive discussions with a number of Commonwealth
Departments, and with AGIMO, about strategies for improvement of accessibility.
These discussions have taken the recent release of the second edition of the
World Wide Web Consortium’s Web Content Accessibility Guidelines into
account. The Commission has also commenced considering revisions to the
Commission’s own guidelines in this area.

Top | Contents

7.5 Legislative
reform and assessment

7.5.1 Convention on the
Rights of Persons with Disabilities:
Addition to Commission
statutory roles

On 24 June 2009, the Commission welcomed the Attorney-General’s
announcement of the declaration of the Disability Convention as a relevant
international instrument under the Human Rights and Equal Opportunity Commission
Act. This declaration formally includes the rights recognised in this Convention
as part of the definition of human rights under which the Commission operates,
and gives the Commission important roles in monitoring and promoting
implementation of the Disability Convention. It is anticipated that further
discussions will be held with the government, about the Commission’s role
as part of Australia’s national framework for the monitoring and
implementation of the Disability Convention, including issues of resourcing.

7.5.2 Amendments to the
Disability Discrimination Act

On 24 June 2009, the Commission also welcomed the passage of the Disability
Discrimination and Other Human Rights Legislation Amendment Bill 2008 by
both houses of Parliament and with bipartisan support.

The Commission has identified further possibilities for improvements to the
Disability Discrimination Act. In conjunction with recommendations for similar
improvements to the Sex Discrimination Act, and in the context of harmonisation
of anti-discrimination laws nationally, the Commission will continue to pursue
opportunities to see these improvements made.

7.5.3 Disability
Standards

The Disability Discrimination Act provides for Disability Standards to be
made by the Attorney-General in specified areas. These 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 development of Disability Standards as offering
potential to increase certainty and clarity of rights and responsibilities for
relevant parties, and thereby advance the objects of the Act.

Access to premises

As noted in the Commissioner’s statement in this report, the House of
Representatives Standing Committee on Legal and Constitutional Affairs delivered
its report on the draft Disability Standards for Access to Premises on 15 June.
The Committee recommended that the Standards proceed promptly to authorisation,
subject to a series of improvements consistent with the Commission’s
recommendations. These included: improved access features on stairways;
improvements in relation to new small holiday type accommodation such as B&B
and cabins; clarification regarding the unjustifiable hardship provisions;
continuing work on emergency access provisions; and consideration of the
Disability Discrimination Commissioner being given the power to investigate
non-compliance with the Premises Standards and to bring a complaint where there
is non-compliance.

Education

The Commission has continued to respond to requests for advice on the
application of the Disability Standards for Education, adopted in August 2005,
and has commenced planning for contribution to the initial five-year review of
those Standards.

Accessible public transport

Pending further progress in the initial five-year review of the Disability
Standards for Accessible Public Transport, the Commission has participated in
initiatives in relation to specific modes of transport for improved
accessibility.

  • Aviation: The Department of Infrastructure, Transport, Regional
    Development and Local Government has convened an ongoing forum in response to
    the forum on aviation access issues in April 2008, convened jointly by the
    Commission and the Parliamentary Secretary for Disability. This ongoing forum
    facilitates cooperative work between the aviation industry, representatives of
    people with disability, and relevant government departments and agencies,
    including the Commission. This working group has made good progress towards
    improved industry and regulatory approaches to aviation access.
  • Bus stops: Draft guidelines on accessible bus stops have been
    prepared and circulated to an expert reference group, with wider circulation due
    early in 2009-10.
  • Rail access: As noted in the exemptions section of this chapter, the
    Commission has been assisting the Australasian Railways Association in relation
    to its development of a rail access code.

Top | Contents

7.6 Action
Plans under the Disability Discrimination Act

Action Plans under the Disability Discrimination Act provide an
important voluntary mechanism for organisations to structure their own
compliance efforts.

As at 30 June 2009, 602 plans were registered with the Commission (increased
from 554 in June 2008), comprising 55 business enterprises, 69 non-government
organisations, 37 federal government and 82 state and territory government
departments and agencies, 170 local governments and 189 education providers.

The Register of Action Plans, and those plans provided electronically to the
Commission (581 of the total), are available on the Commission website at:
www.humanrights.gov.au/disability_rights/action_plans/Register/register.html.
This register assists other organisations interested in developing their own
plans and individuals interested in assessing the effectiveness and
implementation of an organisation’s Action Plan. A number of organisations
have also submitted revised plans or implementation reports during 2008-09.

The Commission has been involved in work by several state governments on more
effective use of disability action plans, including in relation to development
of cross government frameworks for disability issues in response to the
Disability Convention.

Top | Contents

7.7 International
activities

To progress disability issues in the Pacific, the Commission, in partnership
with the Pacific Disability Forum, has received funding through AusAID’s
Pacific Governance Program to build the capacity and knowledge of disabled
people’s organisations (DPOs) and of government representatives in nine
Pacific nations.

The overall objective of the initiative is to improve quality of life for
people with disability living in the Pacific by: promoting the rights of people
with disability (including ratification and implementation of the Disability
Convention); and building the capacity of DPOs and governments to respond to the
numerous barriers preventing people with disability from enjoying all their
human rights, including freedom from violence and abuse, and full and effective
participation in society on an equal basis with others.

The Commission, in partnership with the Pacific Disability Forum, is
developing a three-day training program. Tailored for each country, the training
program focuses on the Disability Convention, policy development, successful
approaches to advocacy and improving governance of each DPO, including building
the capacity of women with disability to participate in all DPO activities.

During 2008-09, the Commission also attended international disability
conferences to discuss the use of the Disability Convention as a tool for
progress.

Top | Contents

7.8 Speeches

A selection of speeches on disability rights issues, made by Commissioner
Innes and Commission staff during 2008-09 are listed below. Full speeches and
papers are available on the Commission website at: www.humanrights.gov.au/disability_rights/speeches/speeches.html.

Going for Gold - Implications of the Convention on the Rights of
Persons with Disabilities for Australian Law and Social Policy -
Human
Rights Indicators Seminar, Queensland Advocacy Incorporated, Brisbane,
20
August, 2008.

Keeping Disability Action Plans on Track - Victoria statutory
authorities workshop, Melbourne, 26 August 2008.

Employment of People with Disability in the Australian Public Service
-
Employers Network on Disability Forum, Canberra, 24 September
2008.

Keynote address - Disability, Disadvantage and Development
Conference,
Canberra, 29 September 2008.

City of Sydney Access Inclusion Plan launch - Sydney, 1 December
2008.

International Day of People with Disability - Breakfast Meeting,
High Court
of Australia, Canberra, 1 December 2008.

Presentation to Western Australian State and Local Government CEOs
-
Perth, 2 April 2009.

Keynote address – Creating Welcoming School Communities
Conference, Perth, 3 April 2009.

Rights Denied - Seminar towards a national agenda on abuse,
neglect and exploitation of persons with cognitive disability in Australia,
Sydney, 22 May 2009.

Using the Disability Convention for Practical Change - Australian Federation of Disability Organisations Conference, Melbourne,
29
May 2009.

Matt Laffan Memorial Address - Sydney University Law School,
23 June 2009.

The following speech was also given by Bruce Maguire from the Disability
Discrimination Unit, Australian Human Rights Commission:

Telecommunications Access and the Convention on the Rights of Persons with
Disabilities
- Signposts Telecommunications and Disability
Forum, Melbourne, 16 February 2009.

Top | Contents