Disability Discrimination Commissioner 1993-97
A ground-breaking Act
Eliminating disability discrimination requires active measures
Problems of definition and mechanisms for dealing with discrimination
Disability standards under the Disability Discrimination Act
Initial strategic planning issues: How could the DDA make a difference?
Information and education campaign
Action plan development strategy
Small business involvement
Access to voting and democratic participation
An outline of Disability Discrimination Act complaints
Other activities of the Disability Discrimination policy unit
Limitations of strategic planning
Some reflections on the future
Assistance to industry and business
Building on the FounDDAtions
A few years ago, as I struggled with one or other of the innumerable barriers faced by a person using a wheelchair, I said vehemently to my companion: "If somebody would pay me, I'd do something about this - but I'm too busy and I have bills and a mortgage to pay". Well, somebody did; I hope I did; I was certainly even busier; and bills and mortgages are with us always.
As I reach the end of my appointment as the first Disability Discrimination Commissioner, and in the light of proposed structural and funding changes to the Commission, I am drawn to reflect upon the theory and practice, challenges and developments, lessons and achievements, of the first five years of operation of the Disability Discrimination Act, and to look towards directions for the next five years.
In this informal report I outline the history, process and progress of the major projects and activities undertaken by the Commission. I discuss the decisions and philosophies lying behind the legislation itself, the development of Standards under the Act, the use of Action Plans as a tool for implementation of the Act, other significant endeavours of the Commission aimed at the realisation of the objects of the legislation, and the contribution of the Complaints and Hearings functions of the Commission to these outcomes. Finally I indicate some areas where I think the Commission could have a constructive influence in the future, and how results may best be produced.
Although I am writing this report at the end of my term of Office, and there is no likelihood of my being replaced, the work of the Commission and of the Disability Discrimination Policy Unit will continue, and the Disability Discrimination Act remain in effect, for the foreseeable future despite funding cuts and restructuring. I am confident that the Commission by any other name will still be a Human Rights Commission and will continue to work with all sectors, including those with responsibilities under the Act, to assist them in understanding and compliance in order to create a discrimination-free community. The Commission will also continue to speak out against injustice and discrimination wherever it may be found and whoever such protest may outrage.
It has been an extraordinary privilege to have been associated with this work and with this organisation, and to have had the opportunity to influence the shape and substance of the nation's response to the aims and objects of the Disability Discrimination Act.
I recognise and acknowledge the contribution made to this process by a wide range of people, including the National Disability Peak Representatives, the Standards Coalition, all I have worked with in the various interested sectors and Mr Kym Duggan, of the Federal Attorney-General's Department.
It has also been an extraordinary privilege to have worked so closely with the staff of the Commission who in their daily work, their advice, their grappling with the as yet uninterpreted and unknown, their deep commitment to the spirit and meaning of the legislation and their readiness to discuss, argue, persuade and support have made an immense contribution to our enterprise of eliminating disability discrimination. The Commission and individual Commissioners are in the end as effective as the staff who support us: upon them rests the detailed daily work of researching and developing policy; responding to enquiries from the sectors making up our overall constituency of those with rights, and those with obligations under our legislation; organising meetings, speaking engagements, travel schedules and regional visits; ensuring the smooth running of the various sections and of the organisation as a whole; and carrying out on behalf of the Commission the difficult and demanding work of complaints management and resolution at all its stages.
I take this opportunity to acknowledge particularly the staff of the Complaints and Legal Sections who have worked on Disability Discrimination matters. The Complaints team, first under the leadership of Mary O'Sullivan and now of Karen Toohey, both of whom have brought a high level of analysis and painstaking attention to detail to the work, has achieved wonders in eliminating backlog, creating positive outcomes and dealing with the multiplicity of unprecedented situations that arises in the administration of a new piece of legislation. They have been supported by the Legal staff, under the leadership of Mark Nicholls and, with her specific focus on Disability Discrimination, Susan Roberts. The regular "Legal Meetings" in which we have vigorously discussed the Act and its interpretation in complex situations have contributed greatly to the management of complaints and to our policy work.
Within the Disability Discrimination Policy Unit there has been throughout the five years a strongly held vision of a community free of disability discrimination, a willingness to explore and create the means to attain that vision, and a spirit of vitality and cooperation. I especially recognise the contribution of Susan Ives, whose personal and administrative assistance has been enjoyed and relied upon by me and the whole policy unit; Therese Sands, whose creative and persuasive skills have resulted in both Action Plan Guides and focussed workshops, and in a number of very significant Action Plans; Sandy Wright, with her communication skills in the arcane world of insurance and superannuation, and her wonderful ability to express complicated ideas in clear and plain English; Michael Small, whose breadth of knowledge, eye for detail, and consultative and negotiation skills have been essential in the development of Advisory Notes and draft disability Standards; and David Mason whose vision, legal acumen, sound advice, capacity to write just what I wanted to say, and personal support have been of immeasurable value to me, and to the outcomes achieved by the Unit.
All that we have achieved in the relatively short time of the Disability Discrimination Act has been achieved by all, and all should be proud of what has been accomplished.
Late on 18 October 1992 the Disability Discrimination Act was passed in Parliament in a bi-partisan vote. On 17 December 1992 I was appointed as Australia's first Disability Discrimination Commissioner. On 8 February 1993 I took up this appointment to the Human Rights and Equal Opportunity Commission, and on 1 March 1993 the Disability Discrimination Act came into effect. This was the first federal legislation to promote and protect the civilian rights specifically of people who have disabilities, rather than to provide or regulate services to people who have disabilities. As such it was a ground-breaking Act.
This may seem an odd thing to assert given that disability had already been included for up to eleven years in the equal opportunity and anti-discrimination legislation of NSW, Victoria and SA. It had also been recently included in the new WA and Queensland legislation, each legislative authority taking the best from the preceding model. The Northern Territory and the ACT soon had equivalent legislation, leaving now only Tasmania without its own state developed and endorsed anti-discrimination Act covering disability discrimination.
Why, then, do I describe the Disability Discrimination Act as "ground-breaking"?
There are various reasons: first, under the Disability Discrimination Act "disability" is not one of a list of proscribed grounds of discrimination but is the proscribed ground. This is very significant in that people who have disabilities are not in general used to availing themselves of the protections and benefits of what could be called "mainstream" legislation. People with disabilities have limited experience of belonging in the main stream and tend therefore not to assume or assert their rights. Having a piece of legislation which makes disability the focus rather than one of many foci has enabled people with disabilities to own it and use it effectively.
Another reason to describe the Disability Discrimination Act as "ground-breaking" is that it established a Disability Discrimination Commissioner whose primary role is the promotion and protection of the rights of people with disabilities: this activity is not dependent on the Commissioner making disability a priority, or on funds which may otherwise be spent on more clamorous or numerous claimants but rather has its own funds, albeit limited, and is its own priority. Furthermore a specialised or dedicated Statutory Office Bearer has the status and support necessary to work at the highest levels of government.
The Disability Discrimination Act can also be seen as "ground-breaking" in its broad and inclusive definition of disability, in the wide sweep of public life influenced by the legislation, in its provisions for the development of national Standards, and in its encouragement of enterprises to consider and plan for non-discriminatory provision of goods, services and facilities through the creation of Action Plans. Furthermore there are very few exemptions from the Disability Discrimination Act.
The Disability Discrimination Act has as its first object the elimination of disability discrimination as far as possible: this, too, is a "ground-breaking" concept.
It has been important to recognise that the object really is the elimination of discrimination, not something more modest and manageable like providing remedies for a few complainants.
I do not dismiss the importance of effective provision for complaints of discrimination: individual or representative remedy is a significant aspect of our anti-discrimination law. My point is, however, that much of such success as has been had under Australian disability discrimination law has come from the recognition and use of complaints as a driving force for other, structural, measures rather than resolution of individual complaints being regarded as the major end, or effective in itself.
If the objective of eliminating discrimination is taken seriously, it is obvious that we are talking about social change on a very large and ambitious scale.
In the drafting of the international Covenants on human rights, one of the negotiators (Rene Cassin) pointed out that "it would be deceiving the peoples of the world to let them think that a legal provision was all that was required ... when in fact an entire social structure had to be transformed".
This point is particularly apt in talking about eliminating disability discrimination.
Finally, the fact that the Disability Discrimination Act is national in its coverage has allowed people with disabilities, and those with responsibilities under the Act, to create change at the national level rather than only State by State by Territory. Of course not all matters considered under the Disability Discrimination Act have national implications, but sufficient do to have made far reaching changes which will benefit all Australians.
Disability discrimination can arise in the same ways as race or sex discrimination: from prejudice or fear of difference; from restrictive social roles, and assumptions that a particular group is not entitled to expect fully equal participation in the life of the community; from inappropriately applying generalisations to individuals based on group membership; and from the results of past inequality affecting ability to acquire qualifications.
There are also other dimensions to discrimination, dimensions which are more obviously important in relation to disability.
It is possible, though wrong, to interpret and administer race or sex discrimination legislation as if all that is required is a passive refraining from discrimination: ensuring "colour blindness" or "gender neutrality" and treating the relevant ground of discrimination as simply irrelevant to permissible decision making. Such interpretations have at times found favour with courts and tribunals in Australia. Nevertheless, in some cases "neutrality" can entrench rather than prevent discrimination. For example, claims for recognition of and respect for the prior rights of Australia's indigenous people are met, in ignorance or bad faith or both, with claims that there should be no special rights based on race and that we should all be equal under the law.
With disability it is clearer that simply "treating equals equally" is not sufficient for eliminating discrimination. It is also more readily - sometimes too readily - accepted that disability makes a relevant difference.
People with disabilities have long been systematically defined out of various markets, client and customer groups and other aspects of citizenship and community. In many cases this has taken very solid form: buildings that not everyone cannot get into; transport and communications systems that not everyone can use; information that not everyone can receive; education systems not designed to accommodate everyone capable of or entitled to benefit from them.
So with disability it is particularly important to recognise the degree to which eliminating discrimination requires active measures. I think the distinction between anti-discrimination and affirmative action is over-stated even in relation to race and sex. Certainly, the elimination of disability discrimination requires actions which might as well be termed affirmative.
The Australian legislation follows the conceptual model developed by courts interpreting the United States Civil Rights Act in categorising discrimination into direct discrimination, or different treatment on the basis of the ground of discrimination; and indirect discrimination, or treatment which may be applied equally but has a disparate impact.
Statements that the Disability Discrimination Act is based on the Americans with Disabilities Act are regularly made, but are not accurate in all respects.
Definition of disability
In particular the definition of disability in the United States act, with its emphasis on whether a person is "limited in a major life activity" was seen as a model to be avoided rather than followed. Experience with the U.S. legislation has, I think, supported our concerns in this area. A large proportion of the pages in the extensive regulatory and guidance materials issued under the Americans with Disabilities Act is taken up with issues of the identification of who is, and is not, a person with a disability. This is not only a misdirection of effort and attention away from the real objective of eliminating discrimination; it suggests that we are talking about a dangerous or a protected species, and could be expected to encourage a reaction from employers and others that the safest thing to do with people with a disability is avoid having to deal with them.
Reasons for a restrictive definition of disability like this include an understandable desire by people who have to live with permanent and major disability to ensure that they are the main beneficiaries of disability discrimination legislation, rather than attention and administrative resources being dissipated in addressing more transitory or trivial conditions. (I will come back later to issues of who has benefited most so far under the Australian legislation.) There are also issues of political credibility of legislation if minor ailments are treated as disabilities.
A restrictive definition of disability is nevertheless an ineffective method for dealing with these issues and works against the legislation achieving its objects.
One result is that people with a disability, seeking the assistance of anti-discrimination law in asserting their ability and entitlement to participate equally (including with any assistance and accommodation which may be required and to which the law entitles them), may paradoxically find it necessary to argue that their ability to participate is in fact limited by their impairment in order to qualify for the protection of the law.
There have in fact been cases under the United States legislation where persons who clearly did have a disability were denied a remedy for discrimination because they faced exclusion only from a particular job or small class of jobs, and not from the whole activity of employment. This seems astonishingly absurd and unjust: claimants under race or sex discrimination laws are not told that they have no right to redress for discrimination in their chosen field because they can always look for a job somewhere else; and nor should people with a disability be told this.
This appears to be a residual habit: "You should be grateful you have a job at all, without making even more demands"; that is, work for people who have disabilities is still seen, in this scenario, as a welfare item requiring gratitude rather than a right.
Before its revision a few years ago the NSW the anti-discrimination act defined intellectual disability as an impairment in "the structure and function" of the brain. People with an intellectual disability are not always able, however, to point to the part of the brain which had "impaired structure": that is not always the nature of intellectual disability. Finally, in one case, a judgement was made that the phrase "structure and function" was what lawyers call a hendiadys, that is, a single idea expressed in two words joined by a conjunction. Therefore the complainant was a disabled person within the Act. This was an important decision for people with intellectual disability seeking remedy for discrimination at that time in NSW, but would not have been necessary had the legislation not incorporated this diagnostic language.
A similar problem occurred, again in NSW before the ADA was revised, to reflect the definition of disability in the Disability Discrimination Act, when a person with epilepsy initiated proceedings under the ADA. In this case, the problem was that this person did not fit into the definition of physical disability and had to be represented as having an intellectual impairment in order to seek redress of an injustice.
These are some of the problems arising from closed definitions of disability.
A major strategic choice at the outset, then, was to present disability discrimination legislation not as rights of a special group but as the rights which any of us have if we happen to have a disability now or acquire one in the future. It would be not only ironic but also dangerous for discrimination law itself to reinforce a view of disability as something which happened to "them", and of people with a disability being a group defined out of the mainstream of the community.
The Disability Discrimination Act is predicated upon this fundamental assumption that disability is a part of ordinary human community, that people who have disabilities are not different or separate from our community but are an integral, belonging part of the whole. Certainly disability is not always convenient, attractive or desirable, but it is an ordinary attribute of being human, and human societies must stop unnecessarily and unlawfully excluding people who have disabilities from their ordinary activities. Many people who have disabilities do not wish to be altered, cured or transformed. They do wish their equipment would work reliably; and that transport, education, shopping, professional and other services, work, entertainment, banking, insurance and information were accessible without discrimination.
People who have disabilities do not wish to "be included": they wish it to be acknowledged that they already belong.
Recognition of disability as simply a part of the human condition provides definite strategic advantages. It requires a moral effort to place ourselves in the position of someone of the opposite gender, or of a different racial background, or who has a different political opinion or sexual preference; but disability is something that can happen to any of us, and as we live longer it increasingly probably will.
Approaches to discrimination
Some features of the Disability Discrimination Act were influenced by U.S. models but most of the structure, for better or worse, was based on or borrowed from Australia's Sex Discrimination Act. The drafting of the Disability Discrimination Act also owes a heavy debt to Australian State anti-discrimination laws and recommendations made by the agencies administering them.
Some features of the Americans with Disabilities Act were regarded as highly desirable but were not followed because they were not politically achievable in the Australian environment at the time.
The Americans with Disabilities Act includes mandatory provision for self-evaluation by State and local government agencies of their compliance with the legislation, and requires transition plans to be developed for the elimination of any barriers identified in a self-evaluation. This provision follows a similar requirement for US Federal government agencies under the Rehabilitation Act of 1973. These transition plans, however, do not appear very readily accessible, and our information on them at present is limited.
The Disability Discrimination Act provides for the development of "Action Plans", both by public and private sector service providers. These are similar in intent to transition plans under the Americans with Disabilities Act but the legislation only invites development of such plans, rather than making them mandatory.
The Federal government did however make Action Plans compulsory as a matter of executive decision for Federal departments and agencies under the Commonwealth Disability Strategy adopted in 1994.
It remains (just) to be seen how many agencies comply with the target date set of 1997 for lodging these Action Plans. It also remains to be seen how much change is resulting from those plans which have been adopted. Agencies have been required to submit progress reports on their implementation of the Commonwealth Disability Strategy, but there has not yet been any systematic audit of Disability Discrimination Act compliance by Federal government agencies comparable to that done for the US Government in relation to compliance of its agencies with the Americans with Disabilities Act. Neither has there been an across the board audit of compliance on particular issues such as accessibility of premises, communications or information.
The Australian Government is, I understand, soon beginning an evaluation of the effectiveness of the Commonwealth Disability Strategy so far, and the Human Rights and Equal Opportunity Commission will be participating in that evaluation.
One feature which the Disability Discrimination Act did pick up from the Americans with Disabilities Act, and from submissions from the disability community, was the need for more detailed standards which would translate general concepts of discrimination into terms which gave more specific indications of what is required and which organisations with obligations under the Act could therefore more readily understand, comply with and be held accountable for complying with.
Most of the "extra" issues which disability discrimination presents, and most of those where anti-discrimination legislation can make a decisive difference, need to be analysed as indirect rather than direct discrimination. In many cases the problem is not that people with disability are treated differently and directly excluded from buildings or transport or communications and information because of disability, but rather that these bits of the world are the same for everyone but have not been designed in a way that people with a disability can use.
It is commonplace among anti-discrimination lawyers that establishing indirect discrimination in litigation under the sort of provision contained in the Sex Discrimination Act and the Disability Discrimination Act presents substantial problems of evidence and interpretation.
A much more important issue for disability discrimination at least is not the complexity of litigating under these provisions, but the difficulty of understanding and complying with their requirements without litigation.
The availability of procedures for complaints resulting in enforceable orders is clearly an important incentive to compliance with legislation. But no legislation is going to be very effective if it is complied with only or mainly when compliance is ordered by a court or tribunal. We can expect limited success in achieving compliance if the legislation has no reasonably definite meaning reasonably clearly ascertainable in advance of judicial interpretation.
The existing indirect discrimination provision states, in effect, that it is unlawful to impose an unreasonable condition or requirement which has a disproportionately adverse effect on people with a disability compared to people without that disability. It can be seen that I am already simplifying the words of Disability Discrimination Act section 6, and still not ending up with a statement which is particularly clear.
It is not going to be inherently obvious to everyone whose organisation operates from a physically inaccessible building; or provides information only in print on paper; or gives only a voice telephone contact point, for example, that they have imposed a "condition or requirement", or that this will disproportionately exclude people with some types of disability, let alone whether this is unreasonable.
Furthermore, it is certainly not going to be inherently obvious what to do about it.
For example, it is clearly impossible to expect all buildings to be designed to be equally accessible and useable by people with a disability, simply by reference to the terms of a general indirect discrimination provision. The same applies for an equally accessible telecommunications or transport system, even if we add some attractively presented pamphlets from anti-discrimination agencies and some precedent-setting case law.
Some advocates for people with a disability have been opposed to the development of standards under the Disability Discrimination Act on the basis that to define rights may limit them. This is of course an old argument, advanced against the adoption of the United States Bill of Rights and more recently used by opponents of a Bill of Rights for Australia. In the first case the argument was sincerely put, but has not been borne out by history. In the second case, it is reasonably clear that some proponents of this argument were concerned not to preserve but to prevent more effective protection of human rights.
I do not question the sincerity of the holders of this adverse view of Disability Discrimination Act standards but I think that on this issue they lack strategic judgment. Time spent waiting for the Really Big Complaint, that may be just around the corner and that will compel widespread compliance at a higher level than any negotiated set of standards, is time during which more inaccessible buildings are built, more inaccessible transport vehicles are put into service, more development of communications technology occurs without incorporating accessibility. It is also time wasted from the lives of people with a disability during which they might have enjoyed greater access and equality, rather than accepting continued exclusion as the price of an uncertain prospect of the achievement of an enthusiast's ideal vision of rights somewhere in the future.
This does not mean that regulations or standards are necessarily the best road forward in every area. The issue is more that in some instances development of standards may not be worth the effort it takes, rather than that standards, if developed, will diminish rights.
The Americans with Disabilities Act specified dates by which regulations had to be made setting more specific standards on various subjects.
In the Disability Discrimination Act it was possible only to secure provision that Standards could be made, not that they had to be by specified dates, and even now the power to make Standards is more restricted than the areas covered by the Act. The reasons for this are confusing even to those closely involved in the development of the legislation. A major factor seems to have been concern from a number of major areas within the Federal Government that standards would make the legislation more effective, and therefore potentially more expensive for business and for government itself, compared to a purely complaint based regime.
The Americans with Disabilities Act allocates responsibility to different agencies for developing regulations in different areas, to give effect to its purpose of eliminating discrimination. The Secretary of State for Transport was given responsibility for bringing forward regulations on transport, for example, and the Federal Communications Commission has major responsibilities for accessibility of telecommunications services and other aspects of communication such as captioning of television and video programs.
There are great advantages in this kind of approach. An agency specifically responsible for regulating an area such as building access, or transport, or communications, can be expected to have greater expertise and institutional authority in that area, and better knowledge of the interests affected, than can an anti-discrimination agency.
In the Disability Discrimination Act all direct responsibility for standards development was left in the law and justice area of government. The Attorney-General was nominated as the minister who may make standards in relation to employment, education, transport, accommodation or the administration of the Federal government's own laws and programs. The Human Rights and Equal Opportunity Commission was the only agency nominated as having a responsibility to advise on the development of standards.
This, of course, was in addition to general responsibilities for promoting understanding and awareness of the legislation; receiving Action Plans; dealing with applications for exemption; and handling complaints.
Faced with a broad palette of legislative responsibilities and a broad canvas of changes needed to achieve the objects of the legislation on different issues affecting a diverse range of people with a disability, we did what government agencies usually do: we tried to produce a strategic plan which would give us both a manageable set of priorities and good prospects for large scale effectiveness.
One of the first issues which we had to face up to without conceding defeat at the outset, was why or how the Disability Discrimination Act could be expected to make any real difference to people who have disabilities.
By the time the Disability Discrimination Act came into effect, state or territory legislation on disability discrimination was already in force or well advanced in development in every Australian jurisdiction other than Tasmania as part of more general anti-discrimination Acts. Despite some differences of detail in definitions of disability, defences provided for and exceptions, in most points this legislation was similar to the Disability Discrimination Act. Similarities included provision for complaints to an agency responsible for investigation and conciliation but with recourse to enforceable remedies if required; and using similar models of direct and indirect discrimination
In some states, the administering agencies had pointed to gaps and defects which in their view severely restricted the effectiveness of the legislation in relation to disability. As I have indicated, the drafters of the Disability Discrimination Act gratefully accepted this advice. In other states, administering agencies promoted the legislation in their jurisdiction as generally a model for others to follow.
Despite this, the disability community represented very strongly that national legislation was needed, and needed to apply generally rather than only to those areas which state legislation had not dealt or could not deal with such as the Federal government's own administration. Their overwhelming view was that the disability discrimination provisions included in general anti-discrimination laws had not been very effective in achieving change on any large scale beyond the individual outcomes of complaints.
That may have been too pessimistic a picture, and may have been unfair to the people who drafted or administered pre-existing State laws. In some areas, such as employment and education, changes towards greater inclusion and equality could be seen through the 1980s and into the 1990s prior to the introduction of the Disability Discrimination Act, even if it is difficult to assess what the contribution of anti-discrimination laws was to those changes (differentiated, for example, from the effect of the International Year of Disabled Persons and the continuing community activism springing from this).
There was plenty of evidence available of change not occurring, or not occurring enough in the right direction: buildings still being built or renovated to be inaccessible; very limited accessibility of telecommunications systems; most public transport still being designed and operated on the basis that people with a disability are not part of the public.
There are two major parts to an explanation of this. The first is in the response of people with a disability to general anti-discrimination laws. People who are accustomed to segregation into specialised services and facilities may not believe that a mainstream general anti-discrimination law actually is intended for their use. In this sense having a specifically named Disability Discrimination Act may serve in a way analogous to the access symbol on the door of a structure which in other respects, perhaps, is not hugely different in its accessibility from the surrounding structures of state laws, and which is not universally superior where there are differences.
Something related to this might explain in part why State and Territory governments and others with obligations under the Disability Discrimination Act sometimes speak as if the Disability Discrimination Act were the only applicable law in the area, rather than there being fairly closely parallel State or Territory legislation in all jurisdictions other than Tasmania. Of course, it might also be convenient to approach obligations to eliminate discrimination as a unilateral mandate from central government for which the central government might be expected to pay, rather than as also existing under imperfectly fulfilled commitments of those State and Territory governments themselves.
The second point is the need which I have referred to already for active measures to deal with disability discrimination, rather than relying principally on public education and goodwill, and complaint resolution where those may fail.
Need for policy focus
The federal government has decided that a dedicated position of Disability Discrimination Commissioner is not required to be maintained within the Human Rights and Equal Opportunity Commission.
I have made it clear on numerous occasions to the Attorney-General and to the Prime Minister that I consider this to be a significantly retrograde step for people who have disabilities; it is too early, after only five years of operation of the Act, to leave it in generalist hands - no matter how benevolent or committed. It is the experience of people who have disabilities throughout Australia that where disability is one of a list of matters to be attended to it does to retain the high priority required for systemic change to occur. Neither do those who have not lived with disability have the necessary awareness, in general, of wherein discrimination lies.
The Commission is certainly not responding to the Government's plans by giving up the task, but it has been important to have, and I think it is still essential to maintain, a strong and distinct policy focus on disability discrimination.
This need not mean and has not meant a vast bureaucracy. Staffing of the disability discrimination policy function in the Human Rights and Equal Opportunity Commission has been from 3 to 5 middle ranked public servants. One of the conclusions most reinforced by experience under the Disability Discrimination Act is that an anti-discrimination agency does not need to be directing everything, and in fact will generally be more effective when it is informing and catalysing activity by other agencies in government and organisations in society. This is not to say that we could not use moderately larger resources than we have had to achieve more, but the modest staffing that we have had has been in itself a much greater resource than available to any of the state or territory agencies for this purpose.
People with a disability are an important constituency but not the only one
Thus reassured that the task of using the Disability Discrimination Act towards eliminating discrimination did not need to be abandoned at the outset as hopeless, we returned to the strategic planning process.
From the beginning it has been my firm view that my task, and that of the Human Rights and Equal Opportunity Commission, is to be an advocate for the legislation itself: the Act has as its objects the elimination as far as possible of discrimination against people who have disabilities; the ensuring of equality before the law for persons with disabilities; and the promotion within the community of the principle that persons with disabilities have the same fundamental rights as all members of the community. These objects can only be realised when all sides of the equation are taken into account and are treated with equal respect. That is, those with responsibilities under the legislation are as much entitled to education, assistance and support from me and the Commission as are those whose rights are being protected and promoted. I have therefore developed to the best of my ability constructive and cooperative relationships with business and employer groups and all levels of government as well as consultative relationships with people with disabilities, and their representatives, associates and advocates.
This has not always been an easy principle to adhere to; there is a strong temptation for agencies concerned with social justice to spend most of their time talking to people who already agree with them. Among people who have experienced disadvantage there can be a strong expectation that an anti-discrimination agency should always take their side: so much so that any attempt to take into account the concerns of people with responsibilities can be perceived as bias or selling out.
This said, we did decide to make a major focus of educating representatives and advocates of the disability community: because of the importance of informed and effective use of complaints mechanisms as a driving force for achieving the objects of the legislation, and because of the importance of the input of people with a disability for the other mechanisms provided under the Act, including development of Action Plans and Standards.
We invested considerable time and resources in developing a manual for advocates to assist them to understand and use the legislation. The Commission had a major part in the decision to establish specialist disability discrimination legal services, using resources which had been allocated by government for not very precisely defined promotional and advocacy purposes. These had an intended role of informing and training disability community organisations, as well as assisting in the preparation of key cases or arguing these themselves.
Some highly important cases have been brought with the support of the specialist legal advocacy services: in particular those in relation to transport and telecommunications which I will discuss in more detail later. However, in my view there has been less impact than hoped for in raising the ability of disability community organisations to use the legislation effectively themselves.
Comments were sought from disability community organisations on the Commission's draft strategic plan for the Disability Discrimination Act. Regular meetings have been held to discuss the progress of projects within this plan and to discuss overall priorities. Standards development processes have featured lengthy and extensive community consultation as well as formal representation of disability community organisations on steering committees.
Input from these organisations is clearly important, but the methods we have used to date have been disappointing in the results achieved compared to the resources invested, both by the Commission and by organisations and individuals in the disability community. One of the things we clearly need to do as we complete five years of the Disability Discrimination Act is to review how we are consulting with the disability community and the purposes for which those consultations are conducted.
The amount of attention that has been given to standards development by disability community organisations and by the specialist legal advocacy services may have been at the expense of some potentially effective use of the legislation as it already is. The Commission needs to keep looking closely at the level of priority it is giving to different strategic mechanisms in different areas under the Disability Discrimination Act, and I think other organisations need encouragement and assistance to do the same. Standard setting is not an end in itself but a means to be adopted where the outcome, or perhaps even the development process itself, are likely to produce increased compliance sufficient to justify the effort relative to other uses of time and resources.
A substantial part of the first year of the Commission's work and budget for implementation of the Disability Discrimination Act was the development of a community information and education campaign, aimed both at people with a disability and at organisations with responsibilities under the legislation.
This campaign was carefully planned to make the most effective use of a very limited budget. It was generally well received at the time, and there is still substantial demand for some of the campaign materials such as booklets and posters. There is, however, now a fair bit of evidence that the campaign had only patchy success in generating awareness of the existence or effect of the Act, even among the disability community, and less still among some important sectors of people with responsibilities. I draw this conclusion despite the immediate positive effect evidenced by the number of enquiries received on our hot line over the few weeks following the campaign, and the significant increase at that time in the lodgement of complaints. (Statistical information on hot-line and other enquiry calls, and complaints received, is available in the 1993-94 HREOC Annual Report.)
One response to this limited outcome would be that larger scale community education efforts are required. The Federal Government's Office of Disability is in fact in the early stages of planning a campaign about disability discrimination, which we hope may extend what the Commission was able to achieve.
Another response would be to reflect on evidence from the United States experience. Information and awareness, education and training efforts regarding the Americans with Disabilities Act have far exceeded anything we have been able to do or attempt in Australia. Even so, there has been evidence of disappointingly low levels of awareness of that Act both among people with a disability and in business.
Perhaps the conclusion should be that not too much should be expected of education campaigns, general or targeted, at least as an initial strategy.
My own view is that, in the Australian context at least, information, education or advertising campaigns directed at changing attitudes have, and always have had, at best a subsidiary place in eliminating disability discrimination. Attitudes towards people with a disability as objects of pity or fear, best segregated in separate accommodation, education, employment and services (if they are thought of at all) are far more likely to change under the impact of experience of people with a disability as equal participants in ordinary and mainstream activities: as work colleagues; as classmates in school or university or college; as customers and so on. Our principal focus should continue to be on the institutions and structures that perpetuate exclusion and marginalisation, with attitudes seen as only part of this.
Experience can, of course, also educate people and organisations in the other direction, to treat requirements of anti-discrimination laws as less than compelling. There was something of this effect in the Australian experience prior to the Disability Discrimination Act. General discrimination provisions were theoretically in force but, as I have indicated, it was very difficult in many cases to ascertain in advance what needed to be done to comply. In these circumstances, it would not be surprising to find many people with responsibilities deciding to manage the risk of liability for discrimination by ignoring it. The prospect of a successful complaint might be regarded as being as severe as being struck by lightning, but about as unpredictable and unlikely.
Experience under the Disability Discrimination Act has done a lot to shift these perceptions, although the shift is certainly not uniform across all the areas dealt with by the legislation.
In addition to our strategic plan and consultations, analysis of the first year's complaints soon made clear where lay the major concerns of people with disabilities. The majority of complaints concerned experiences of discrimination in employment; in access to premises and goods, services and facilities; in public transportation; in education, and in insurance and superannuation. Therefore, as well as the careful investigation, and conciliation where possible, of complaints in the Complaints Section of the Commission, the policy unit began to work on these areas with a view to systemic change rather than the piecemeal and uncoordinated changes which are often the only ones possible through response to individual complaints.
Of course, as a person who had lived with a disability all my life, and who has lived, studied and worked among people with various disabilities, I was fully aware of areas requiring urgent attention. Early in 1993 I began discussions with a range of "key stakeholders" who were sympathetic and interested - but whose sense of urgency did not match my own. It was, in the end, the impetus provided by successfully conciliated complaints, or those which I referred to the Commission for formal hearing, which resulted in the outcomes described below.
Complaints about lack of equal access to public transport provide perhaps the most striking example of the effectiveness which complaints under the Disability Discrimination Act and its state and territory equivalents can have if used effectively and linked to other mechanisms such as those the Act provides for action plans, standards and exemptions.
A small handful of such complaints under the Disability Discrimination Act have led, in sequence, to:
- agreement that a particular new railway station would be accessible rather than inaccessible to people with physical disabilities;
- a commitment that all new railway stations in New South Wales would be designed for access for all people with a disability;
- agreements regarding accessibility of new city buses in Darwin, Adelaide, Perth and Sydney;
- agreement by all Transport Ministers to a strategy including accessibility of all new public transport facilities and services throughout Australia, and all existing services and facilities within 20 years;
- development of draft Disability Standards under the DDA to give effect to this strategy.
Crucial to these processes was a complaint from an individual young woman who would not accept that she should not be able to use, like any other student, a railway station being built to serve her university. However, this would not in itself have been sufficient to produce the results described without active policy intervention and without legislative structures into which strategies could be fitted.
Part of the impact of the initial railway station complaint was a result of my writing to and meeting with the relevant Minister for Transport to point out the potential for similar complaints to delay other major developments such as the railway lines being built to serve Sydney Airport and the facilities for the Sydney Olympics, and the obvious need to avoid this delay. Part of the Minister's response was for his department to take a leading rôle in the subsequent development of draft standards on public transport under the Disability Discrimination Act so that public transport providers could plan and implement services and facilities on the basis of more certain, and more practically described, obligations.
In response to this and other complaints, the Australian Transport Council (ATC - made up of all Transport Ministers) agreed to a strategy including accessibility of all new public transport facilities and services throughout Australia, and all existing services and facilities within 20 years; and set up a task force for the development of draft Disability Standards under the Disability Discrimination Act to give effect to this strategy.
I was the Attorney-General's representative on this task force, with the role of advising about the legal and human rights aspects of the Standards, and of ensuring that the processes were such that the Attorney-General could confidently accept the draft Standard for consideration. Others on the Task force were representatives of all Transport Ministers, private bus and taxi industries, Local Government and people with a disability.
These draft Standards were accepted in April 1996 by all Transport Ministers, who reconfirmed this position at their July 1997 ATC meeting, and again in November 1997. The draft Standards are currently subject to the Regulatory Impact Statement (RIS) process which new regulations developed by joint Federal-State processes must undergo before authorisation. The RIS process is still continuing, after a first report from the consultants was rejected by the steering committee because of excessive cost estimates, inclusion of unnecessary requirements, and patent misunderstanding of the provisions of the draft Standards, particularly the unjustifiable hardship provisions. At its November meeting the ATC set a deadline of a further six months for the completion of the RIS.
In South Australia and Western Australia the key to forward movement, after a stimulus provided by complaints, has been the ability of the Commission to grant exemptions. Exemptions were granted to transport authorities while, and on condition that, they implement voluntary Action Plans under the Disability Discrimination Act, which they had developed in consultation with the disability community.
The Western Australian authorities did not seek an extension of the initial one year exemption they received. They appear to be confident that their broad ranging Action Plan and the progress being made in implementing it are sufficient to manage the risk of complaints rather than needing the protection of a further exemption. In South Australia the initial action plan and the initial exemption were more narrowly based, dealing principally with access to buses by people using wheelchairs. A broader exemption has now been applied for and granted, on the basis of a Revised Action Plan which addresses a wider range of service issues and types of disability.
I have been concerned by evidence of a growing impression that rights and obligations in this area do not yet exist or have been suspended, and that major action to achieve equal accessibility to public transport may and should be deferred pending authorisation of the Standards. Such a rumour is entirely without foundation. The Disability Discrimination Act does exist now, including its provisions for access to premises (which include vehicles, vessels and aircraft) and has existed in all its terms and provisions for nearly five years. The Standards will clarify these terms and provisions, and allow manageable time frames for modifications to new and existing equipment and facilities, but they will not bring any new legal provisions over and above those already existing under the Disability Discrimination Act.
Because of the above-mentioned misconceptions I recommended at our meeting in October 1997 that the Commission issue a short Disability Discrimination Act Advisory Note on public transport. This recommendation was adopted by the Commission and the Advisory Note has now been issued. (This and other Advisory notes issued by the Commission are available on our World Wide Web site.) The Advisory Note endorses the draft Disability Standards for accessible public transport as generally reflecting existing Disability Discrimination Act obligations. It indicates that the Commission will take these draft Standards into account in complaint handling and in considering exemption applications.
- A draft Disability standard for accessible public transport has been accepted and twice re-confirmed by the Australian Transport Council which has set a deadline in June for the completion of the Regulatory Impact Statement and has set up an implementation committee
- The cities of Perth and Adelaide have lodged Action Plans with time lines under the Disability Discrimination Act for the provision of accessible public transport based on the draft Standard
- In Perth accessible train carriages have been under development and trial for two years
- In Adelaide all city loop buses, and now buses on some other routes, are accessible
- The relevant NSW departments of transport are now developing Disability Discrimination Act Action Plans
- There are two bus routes in Sydney now undergoing trials of accessible buses
- It has been announced that the new consignment of 300 buses for NSW State Transit will be fully accessible
- Railway stations to serve Sydney Airport and the Olympic facilities are being built to be accessible
- The City of Darwin has confirmed that all bus fleet in future will be accessible to people who have disabilities.
Work for the future:
There are still several States and Territories that have not yet developed Action Plans under the Disability Discrimination Act. The Plans that do exist are all in response to one or more complaints under the Act - there is something to be learnt from this.
Access to buildings
Over 40% of complaints handled by the Commission in the 1996-7 year relate to access to goods, services and facilities, and to premises. Frequently lack of access to goods, services and facilities is because of lack of access to the premises in which these are made available to the public.
One complaint which opened the way for significant change was the Cocks decision of 1994 which was the result of a complaint under the Queensland Anti-Discrimination Act (QADA). Mr. Kevin Cocks, who uses a wheelchair, complained to the Queensland Anti-Discrimination Commission that the principal entrance to the new Brisbane Convention Centre was not accessible to persons using wheelchairs or with other mobility disabilities, and therefore access was offered in a discriminatory way. There were twenty-seven steps up to the imposing front entrance and foyer. People using wheelchairs or with other mobility disabilities would have been required to enter the Centre through the car park, some 42 metres around the back of the building, and then use the lift to get to the foyer level before returning those 40-odd metres to arrive again at the principle or ceremonial entrance.
This complaint, being not capable of conciliation, was referred to the Queensland Anti-Discrimination Tribunal for hearing and decision. The respondent's main argument was that they had complied with the access provisions of the Building Code of Australia (BCA) and so were not in breach of the Disability Discrimination Act.
Ms Roslyn Atkinson, President of the Tribunal, found that there had been unlawful discrimination in the design and construction of the Convention Centre. She found that compliance with the BCA is not compliance with the QADA (nor, it can be generalized, therefore with the Disability Discrimination Act and other similar legislation). She took into account evidence presented in the hearing indicating that 10% of Australians have a significant mobility disability such that they will have difficulties negotiating flights of steps. This calculation included persons with temporary disabilities such as broken legs and older people who have arthritis or other frailties. When considering the question of unjustifiable hardship Ms Atkinson also included in her purview a wider group of the population who would be advantaged by a fully accessible principal entrance, such as parents or others who are accompanying children in prams or pushers.
The requirements of the BCA are minimal access provisions but are not anti-discrimination provisions. Anti-discrimination legislation requires that there be equal dignity and amenity in provision of access for persons who have disabilities, not some inferior secondary entrance or access.
Ms Atkinson ordered that the Convention Centre be provided with appropriate alternative access to its front, principle, entrance and that this be designed and constructed in consultation with the complainant and other representative organisations. The result was the construction of a lift at the front entrance.
This decision brought into sharp focus the fact that none of the anti-discrimination laws specify, and none of the agencies administering anti-discrimination law can advise with authority, what does constitute full compliance with the law in this area.
After this landmark decision, I received many expressions of concern from local government authorities about their potential liability as building and planning regulators and of a desire on the part of building owners and operators for a greater degree of certainty over their responsibilities in relation to the Disability Discrimination Act. In response to this I issued advice about the potential for regulators of the built environment to be liable to complaint from people who have disabilities, or to civil law suits from those who, following the information they received from the regulators, may find themselves the subject of such complaints. The already complicated area is made more so by the different building Acts in each State and Territory, giving responsibility for decisions such as these to different levels of government.
Such a situation might have been met by moves to have major projects exempted from discrimination laws - as they frequently have been from planning and environmental laws for example - on the basis that people building major facilities cannot be expected to live with complete uncertainty about whether they will be allowed to complete the project or will be restrained by interim orders under discrimination laws.
Instead, in co-operation with the Commission and the disability community, the Australian Building Codes Board (ABCB) which is the principal regulatory body responsible for this area, has been revising the BCA so it will be more consistent with the Disability Discrimination Act.
The ABCB set up two committees to consider revision of the BCA to make it more reflective of the Disability Discrimination Act. I have been a member of the Building Access Policy Committee (BAPC) from the beginning, and the Commission has also been represented on the Building Access Technical Advisory Committee (BATAC) which considers the technical and regulatory aspects of various policy decisions.
The BAPC also includes representatives from the ABCB, the Property Council of Australia (PCA - previously the Building Owners and Managers Association), builders, people with disabilities and the Attorney General's Department. In June 1996 the Committee completed a draft Discussion Paper which was released for public comment. The ABCB subsequently issued in June 1997 a proposed revised BCA (known as Regulation Document RD 97/01) for consultation till October 1997. The ABCB has analysed the responses to RD 97/01 and proposals for changes to the BCA were submitted in December to a meeting of State/Territory Government representatives which adopted all of the proposed changes.
The Board is also committed to continuing revisions of the BCA in the interests of improved access.
The Commission provided impetus for these processes in direct negotiations with the Building Codes Board. It also issued advisory notes, or guidelines, under the DDA indicating views on the existing level of obligations. I believe that these advisory notes have assisted progress in the revision of the Building Code, by making clear that (as in the transport area) improved access requirements were not in substance a new imposition of regulatory obligations but a reflection of the meaning of existing anti-discrimination law.
While a revised BCA will certainly improve access provisions in new buildings, compliance with the new BCA will not be an automatic protection against a complaint under the Disability Discrimination Act. First, there are many aspects of buildings, and the surrounding built environment, which are not covered by the BCA. Furthermore, there is at present no provision in the Disability Discrimination Act for a Disability Standard in the area of access to premises, so a discontented person with a disability may still bring a complaint about access features that complied with the BCA. Although the BCA compliance would most certainly be taken into account by the Commission in the management of the complaint, there would still be stress, inconvenience and perhaps delay while the matter was investigated and conciliation attempted.
One of the intended outcomes, then, of these BCA revision processes is that a suitably revised building code should provide a possible basis for a Standard under the Disability Discrimination Act on equal access to premises. This would not be done to establish the Act as a competing regulatory regime for buildings, but if the building code can be made sufficiently consistent with its objects it would be desirable to have standards providing conclusively that design and construction which complies with the code complies with the Disability Discrimination Act.
Although representations have been made to the Attorney-General from all sectors, including from myself, for amendments to the Disability Discrimination Act to allow for an access to premises Standard, these have not yet materialised.
There could also be a role for standards in this area in dealing with those issues that the building code does not deal with. In particular, the Building Code deals only with new construction and major renovations. It does not specify (and the revised code is not expected to specify) comprehensively what measures of upgrading of accessibility of existing buildings are required, by when and in what circumstances.
It may also be, however, that development of a set of standards that provides detailed requirements for the transition of existing buildings to accessibility is too complex a task to be achieved, considering the range of buildings which exist and the diversity of the circumstances of people responsible for them, unless the standards are restricted to particular buildings such as those used by the Federal government itself.
A standard on this issue for buildings more generally might not do much more than restate the existing requirement to provide equal access where this can be done without unjustifiable hardship. It may be that more detailed direction in this area should be sought through the other mechanisms under the legislation, including by the interaction of guidelines, action plans and exemptions.
- It is now accepted that compliance with the minimal access provisions of the Building Code of Australia is not necessarily compliance with anti-discrimination legislation
- The Australian Building Codes Board is undertaking a substantial revision of the Building Code of Australia to make it more reflective of anti-discrimination legislation
There have been many complaints under the Disability Discrimination Act which have been conciliated with an agreement that the respondent will modify premises to make them accessible: these have included motels, hotels, shopping centres, betting shops, post offices, civic centres, cinemas, entertainment centres, sports venues, restaurants and cafes, and swimming pools. (Brief summaries of many of these outcomes can be found in the DDA Newsletters on the Commission's web site.) Other matters have gone to hearing, with similar results.
Work for the future:
Again, it is the use of the legislation which ensures it is implemented. There is not, and nor is there likely to be, a Disability Discrimination Act audit and monitoring authority: the authority lies with regulators, architects and developers, and with people who have disabilities, to ensure the Act is implemented.
Further work will need to be done on those parts of buildings, and of the external built environment, that are not covered by the Building Code of Australia, and on the infrastructure connecting different environments, such as between shopping centres and adjacent business precincts.
Much of the work so far described has concerned physical access, however this has certainly not been an exclusive focus.
The issue of equal access to telecommunications for the Deaf and people with hearing impairment, and for people with a disability generally, has been high on the lobbying agenda of disability organisations in Australia. No issue received more political attention during the passage of the Disability Discrimination Act through Parliament. Again, however, it was a simple individual complaint - albeit supported by a representative organisation and by one of the disability discrimination legal centres - which had the most impact.
Geoffrey Scott is a profoundly deaf man from Western Australia who complained that Telecom (as it was then) had discriminated against him on the ground of his disability by not providing a telephone typewriter for the deaf (TTY) in his home on the same basis on which handsets were provided to other domestic users of the telecommunication service. This complaint could not be conciliated as Telecom did not consider its commercial decision to have been unlawful discrimination. Their main argument was that the service provided by Telecom was the actual telecommunication network and lines, and that the handset which provides access to the service was not part of the service.
I referred the matter to hearing, at which time the Australian Association for the Deaf was joined as a party to the complaint. The hearing was conducted by Sir Ron Wilson who found that Telecom had discriminated against Mr. Scott, and against all other persons in his situation. He ordered that Telecom immediately provide Mr. Scott with a TTY, and that there be a further hearing of submissions as to how Telecom could avoid such discrimination in the future.
Once Telecom had accepted that there had been unlawful discrimination they were very enthusiastic about finding solutions to this and many other service delivery challenges. The solution they adopted was to provide a voucher to all people who were eligible, that is who were profoundly deaf or who had significant speech impediment such that they were not able to use a telephone. The voucher would allow them to buy a TTY, and would be replaced in five years. Shortly afterwards Telstra, as the corporation is now called, decided to produce an Action Plan for equal access across the full range of their services, and has now launched that plan. Since then the corporation has introduced many other services and special measures to enable people with disabilities to be independent in their use of the telecommunication network, including the recent launch of a Braille bill for people who are blind. To be able independently to manage one's own financial affairs is most important, and Telstra are to be congratulated on this imaginative and appropriate initiative.
Another far reaching outcome of this matter has been that this year, under Australia's new telecommunications law, we have seen incorporation of disability access requirements, at least in general terms, in the definition of features of a standard telephone service which telecommunications service providers are required to comply with. This also appears to have resulted at least in part from Mr Scott's complaint.
The Telecommunications Act defines the obligations of providers by reference to their obligations under the Disability Discrimination Act, but does not provide any further clarification of those obligations. The Commission has been preparing to begin development of guidelines under the Disability Discrimination Act on requirements for equal access to telecommunications (not only for Deaf people and others using TTYs but on any features of telecommunications facilities which may present barriers to equal access for people with various disabilities). We have deferred commencement of this process because of advice from the Department of Communications and the Arts that the government is preparing to exercise its own power to regulate these issues under the telecommunications law.
We have indicated that we would prefer to assist in this process rather than running a competing process under the Disability Discrimination Act, but that if the development of regulations under telecommunications law is unduly delayed the Commission will proceed with a guideline development process under the Act.
- People who are deaf or who have a hearing impairment now have access at home to the telecommunications service in the same way as do people who can use a standard handset
- This benefit has been extended to others whose speech impairment or other difficulties require them to use a TTY
- Telstra has lodged an Action Plan with the Commission, including a strategy for equal opportunity of employment within Telstra of people who have disabilities
- In all future technical and service planning Telstra is taking into account the requirements of people who have disabilities
- People who are blind can now receive their account in Braille and so be self-sufficient in managing this aspect of their finances
- The requirements of the Disability Discrimination Act are now to be incorporated in the development of regulations under telecommunications law
Work for the future
The development of telecommunications law will need to be carefully monitored both by the Commission and by people who have disabilities: if there is undue delay the Commission will need to consider issuing guidelines for service providers and operators
Service providers other than Telstra may find themselves in breach of the legislation if they do not ensure the elimination of barriers to equal access to their own services and facilities.
It became clear early on that employment was an area in which people with disabilities experience significant discrimination: some 38% of complaints under the Disability Discrimination Act received by the Commission are about discrimination in employment. Sometimes this is direct discrimination, that is once it is known that a person has a disability he or she is not considered for a job or is dismissed, and sometimes it is indirect or inadvertent discrimination. Several matters which were not capable of conciliation were referred for hearing. Indeed the first Commission decision under the Disability Discrimination Act was an employment matter, X v McHugh, Auditor General for the State of Tasmania in which there was a payment of $20,000 in compensation for lost income and for humiliation to feelings.
X was a highly qualified young man in a responsible position who experienced an episode of psychiatric illness which affected his behaviour at work. After a period in hospital and the stabilisation of his condition he returned to work only to be fired before he had an opportunity to demonstrate that he was once again able to perform his duties. Sir Ron Wilson found that there had been discrimination in this case in that the employer, in these circumstances, ought to have been aware that X's earlier inappropriate behaviour was a manifestation of a disability for which he had received treatment and from which he had recovered. There had been no adjustment made by the employer to accommodate X's disability, and no assessment made upon his return of his capacity to do the job.
Another complaint, McNeill v Commonwealth of Australia heard in February 1995 by Stanley Jones QC, resulted in payment for damages and lost salary of $50,900. In this matter it was found that the Department of Social Security had failed to provide Ms McNeill with the equipment she required as an adjustment for her vision impairment, and had failed to ensure that when it was provided the equipment functioned adequately. Her supervisor had nevertheless recommended annulment of Ms McNeill's appointment after the probation period on the basis of poor work performance and problems with interpersonal communication. Commissioner Jones found that Ms McNeill's difficulties in doing her job were largely due to the failure of the equipment, and her interpersonal difficulties were in large part a reflection of her isolation and frustration resulting from this failure. He found the Commonwealth had not met its responsibilities under the Disability Discrimination Act.
These two complaints, as well as meetings I held with employer representatives, contributed to recognition of the need for employers to be aware of the provisions of the Disability Discrimination Act and to take them into account in their relationships with employees. Other matters continued to be brought to the Commission for investigation, conciliation and hearing. (Details of hearing decisions under the DDA can be found in the Annual Reports of the Commission, and through our web site.)
In the light of this, in 1995 the National Advisory Committee on Discrimination in Employment and Occupation set up a sub-committee to consider the development of a Standard in employment. The Sub-Committee includes representatives of the National Coalition for Development of Disability Standards; the Australian Chamber of Commerce and Industry; the Australian Council of Trade Unions; the Council for Equal Opportunity in Employment; the Victorian Equal Opportunity Commission; and the Federal Government through the Department of Employment, Education, Training and Youth Affairs, the Department of Industrial Relations (as it then was) and the Attorney-General's Department, as well as myself representing the Human Rights and Equal Opportunity Commission. I have chaired that sub-committee throughout.
The sub-committee has now produced a draft disability Standard in Employment which has been circulated for a further round of consultation with relevant parties. (The draft is available in a range of formats from the Federal Attorney-General's Department and will also be available on the Commission's web site.) Once this draft is finally settled, I trust by March 1998, and has been subjected to the RIS process, it will be forwarded to the Attorney-General for consideration and, one hopes, adoption by Parliament as a Standard under the Act. (This draft was itself prepared taking into account submissions received in response to a Resource Paper and Discussion Paper issued by the Sub-Committee in July 1995.)
A substantial majority of submissions on the first draft supported developing Standards through consultation as an effective way of clarifying existing rights and obligations, contrasting it with the time, expense and energy involved in pursuing litigation. These concerns are even more relevant with the impending shift of the hearing function of the Human Rights and Equal Opportunity Commission to the Federal Court. A strong minority considered that people with disabilities would do better to pursue complaint strategies under the existing provisions, and wait for further developments of case law to define the nature and scope of their rights under the Disability Discrimination Act. In the meantime they would prefer the Human Rights and Equal Opportunity Commission to issue guidelines.
The Commission's position continues to be to support developing non-prescriptive Standards, although we remain open to the development of guidelines as an interim measure, or on specific issues.
The development of a Standard in employment has been a complicated task as there are so many considerations to be taken into account - considerations that cannot be summarised in a measurement of millimetres of width, or a simple rule, but which are related to a multiplicity of factors bearing upon a decision about who is the best person for the job, what are the inherent requirements of the job, and what it is reasonable to do to assist that person to do the job.
The draft Standards set out, and attempt to clarify, obligations under the Act:
- not to discriminate against a person with a disability, by less favourable treatment or by treatment which is less favourable in its impact, at any stage of the employment process from advertising and recruitment to terms and conditions of employment, opportunities for training and promotion, and in dismissal or other separation procedures
- to make reasonable adjustments where required;
- not to ask questions for discriminatory purposes; and
- not to harass a person with a disability in relation to employment.
The draft Standards seek to clarify limits to unlawful discrimination, in particular by reference to the concepts of inherent requirements of the job and unjustifiable hardship.
There have, of course, in the three years that this Standard has been under development, been many other employment related complaints under the Disability Discrimination Act which, failing conciliation, have been referred for hearing. In some cases the complaint has been dismissed, while in others there has been a finding of unlawful discrimination and the ordering of financial and other remedy including policy change or development, staff training, institution or tightening up of procedures, and provision of appropriate adjustments to the work place. These decisions have been made publicly available, so Australian employers, workers and potential workers have become more and more aware of the Disability Discrimination Act and the solutions that may be found to avoid direct or indirect discrimination in the workplace.
Despite the complexities, the process of developing this employment Standard has been very gratifying: parties have worked cooperatively and creatively together to produce what is essentially a description of appropriate employer-employee relationships in the light of the Disability Discrimination Act. The draft Standard has been the subject of intensive nation-wide consultation and the submissions of all parties have been carefully considered.
The draft Standard, and the process of its development, is now being circulated for final comment; the process has itself clarified many issues in this area.
This is not the level of tangible outcome I had hoped for as the process began: the delays reflect in part, I believe, the expectation of people who have disabilities, founded on experience, that they will always be "last in, first out" of the employment market. This has resulted in a hope that any loophole in the draft can be refined away by application of the sandpaper of consultation: I fear that what may be lost in this, and other areas, may be the process itself. I return to this in my later discussion of the limitations of strategy.
Work for the future:
People who have disabilities are seriously under-represented in employment (even an EEO conscious employer like the Australian Public Service can count only 4.7% of its work force as persons with a disability): the development of outcome oriented policies, and of training about discrimination in the work place may contribute to redressing this imbalance. In the first instance the Human Rights and Equal Opportunity Commission itself should seek to increase the participation of people who have disabilities, and not only in the Disability Discrimination Policy Unit, as part of its management of diversity.
While employment and access matters comprise the bulk of complaints, education issues also create a significant pool of about 10% of complaints lodged. There are some complaints relating to secondary or other non compulsory education provision, but the majority fall into two groups: access to primary school education and access to tertiary education.
Of those complaints pertaining to primary school education most have been about provision of facilities and teachers aides or initial enrolment, usually in relation to children with intellectual disabilities, or with a combination of intellectual, sensory and physical disabilities. In many there is also a component of behavioural disturbance or disorder which may or may not be the primary disability.
Many of these complaints, brought usually by parents on behalf of their children, have not been conciliable and I have referred them for hearing. A common pattern has been that once the matter is referred for hearing the respondent, usually a State education department, will settle the matter with the complainant on a confidential basis. The Commission, therefore, is not generally aware of the details of the settlement. This is, in the end, satisfactory for the complainant, and therefore worthwhile as individual remedy.
This "on the doorstep of the hearing" settlement pattern has just now been repeated in a long-running complaint which had already begun the early stages of hearing but which settled confidentially in November. I understand that the complainant was very pleased with the outcome.
Unfortunately such confidential outcomes have not contributed to our understanding of the provisions of the Disability Discrimination Act nor to Australia's case law in this area; thus while they are individually satisfactory (and that is the main aim of the provisions allowing for the bringing of complaints) we are still unsure of the meaning and reach of such terms as "reasonable", and "unjustifiable hardship", or of what in fact people who have disabilities can legitimately demand of an educational institution and what should properly be provided by some other agency such as a health care service.
One case which added a little to our body of law on these matters occurred under the Queensland Anti-Discrimination Act. In January 1996 the Queensland Anti-Discrimination Tribunal dismissed a matter between "L" and the Minister for Education for the State of Queensland. "L" was then a seven year old girl with an intellectual impairment which had a severe impact on her intellectual development, her ability to communicate, her gross motor skills and her capacity to care for herself in matters such as eating and hygiene. She spent two days a week in a Special Education Development Unit, and three at a regular State primary school until a changed arrangement in placed her in the primary school for five days per week. She was assessed as requiring the highest level of support, so an individual program was developed for her and funding for a teacher's aide was obtained.
Despite these arrangements, and many attempts to solve problems as they arose, the school experienced significant difficulties in managing "L's" behaviour, her tendency to regurgitate, and difficulties with toileting. The teachers felt she was learning very little and they experienced great stress in having to cope with "L" while meeting their obligations to other students. At one point it was proposed to "L's" mother that she be placed in another special education unit, the mother, believing a regular school setting to be the best for "L", declined this offer. In July 1995 "L" was suspended from attendance at the school. Various reviews took place, and the suspension remained in effect. A complaint was brought under the Queensland Anti-Discrimination Act, and finally went to the Tribunal for determination.
The respondent defended its actions on three bases: the claim of potential infective hazard was rejected by the Tribunal; that of unjustifiable hardship was accepted by the Tribunal after consideration of complex evidence, not limited to assessment of financial cost; and the claim that the suspension was specifically required or authorised by an existing provision of another Act was also upheld by the Tribunal. The finding was that there had been discrimination on the ground of disability but that it was not unlawful, and the complaint was dismissed.
Some of the questions asked by teachers, parents, advocacy groups and Departments of School Education are: Is it appropriate that teachers are responsible for the administration of psychotropic drugs? For treating diabetic, allergic or other medical emergencies? For taking an incontinent or physically disabled child to the toilet several times a day? For feeding a child through a gastric stoma? For assisting a child with a catheter? These are real issues of reasonableness and unjustifiable hardship which have as yet been barely tested by anti-discrimination legislation, and which are part of the whole picture that must be considered in any single complaint. These issues must also be addressed in the development of a disability Standard in education because such a Standard will set the maximum that can be demanded as well as the minimum that must be provided: in a Standard these two become, effectively, one. Compliance with the Standard in the relevant area of a complaint would be deemed to be compliance with the Disability Discrimination Act for that complaint.
I encourage teachers, and their representative associations, to begin to draw the "line in the sand" that states, as far as they are able, what it is reasonable to expect from a teacher. People who have disabilities will then draw another line, and unions, parent groups and other interested parties will all draw their lines. Only when those lines are drawn, when the various parties can see the edges of each others' positions, can we hope to achieve some negotiated outcome, some shared expectation. My experience of teachers is that they will bend and yield as far as possible, and then a little further, so highly do they value the opportunity for education for every child. They are, it seems, unwilling to draw any line until the stress is so great that eventually a line much more limited that necessary is laid out as the not negotiable maximum, the ditch to die in. This is not the way to create a sensible, workable Standard of any kind. All parties must work towards the creation of a Standard that ensures the level of access to education demanded by the Disability Discrimination Act, taking into account reasonableness and unjustifiable hardship, without either diminishing the rights of students with disabilities or expanding the responsibilities of providers.
Post primary education
The secondary and tertiary education matters are usually brought by the students themselves and have mostly related to: lack of signing and other services for students who are deaf or who have a significant hearing impairment; to inadequate access to classes and other facilities; and to difficulties arising out of the expression of a student's acquired brain injury or mental illness or psychiatric disability. In general the pattern has been the same as for school education complaints, except that the Commission has been able to settle a larger proportion in the first instance. Some of these have been considered by the Commission at a formal hearing.
There have been sufficient complaints in the education area, under the Disability Discrimination Act and under the disability discrimination provisions of some of the State Acts, and touching all levels of the education system, for Education Ministers to consider the development of a Disability Discrimination Act Education Standard. Ministers have been supported in this by the considerable success of their transport counterparts in developing the draft accessible transport Standard. The Ministerial Council on Employment, Education, Training and Youth Affairs (MCEETYA) has set up a task force to consider the development of these Standards. The task force consists of representatives from each State and Territory Education Department, two disability representatives, a representative of the Federal Attorney General, and a selection of University, TAFE, private sector and other providers. The task force issued a Discussion Paper on Education Standards for comment and is now considering the submissions.
At the moment the task force is looking at the possibility of a Standard to cover the whole range of education, from early childhood right through to tertiary and vocational education. This is a large and extremely complicated task: the task force may in the future consider breaking it up into smaller or more manageable components.
While the Commission is not represented on the task force, I have maintained contact with it in order to contribute effectively to outcomes which promote the objects of the Disability Discrimination Act.
It must be said that these processes have been running for considerable time and we are still to see either clear indications of what a draft standard in this area would look like or definite commitment by Ministers to standards as the preferred option.
Education was identified in our strategic planning process as probably the area of most universal relevance across types of disability, and is clearly crucial to people's prospects of equal opportunity and participation in society. I do not think it can be said that we have yet had the decisive impact on equality in education that has been hoped for. We need to be looking closely at what strategies can be pursued alongside or as an alternative to the development of standards on education in coming months. (To assist these processes, and with the aim of identifying the barriers to equal access to education and the means for their removal, in 1996 I undertook a series of personal consultations with a range of education providers and other organisations with a direct involvement in education at all levels. Some of the issues raised are outlined later in this report.)
Clearly there have been some very good outcomes for parents and children who have persisted to the point of being referred for a hearing and it may be entirely appropriate for Departments of School Education to respond to individual complainants in this way: when one considers the huge number of children attending school across Australia, the number of complaints received is relatively small, and usually the outcome of a serious breakdown of communication between the child's family and the school. If the lodging of a complaint is the best way these families have to gain attention for their difficulties and to achieve a solution, then the Disability Discrimination Act has served its purpose in that instance.
The Ministerial task force is beginning to clarify the issues and questions to be addressed in any Standard and is getting to grips with the breadth and complexity of the task. At the beginning of December the task force decided to move ahead to the next stage of development of a disability Standard, though a minority still believe the best results for individuals will be achieved through the processing and resolution of complaints.
There is no doubt that the education sector at all levels has a deep commitment to education for every child of compulsory school age where this is at all possible, and the post school sector has long established disability support practices which, subject to funding (never sufficient) seek to ensure equity for people who have disabilities.
Work for the future:
While hearings and tribunals at Commonwealth and State levels are making little headway in establishing case law to clarify rights and obligations under anti-discrimination legislation; there are nevertheless significant issues of responsibility and expectation to be addressed and this may in the end have to be through the courts and tribunals established for this purpose. Advocates in this area will need to maintain persistence and focus in the face of setbacks.
This area has produced around the same number of complaints as education, with a similar outcome pattern. At first the insurer finds itself unable to enter into a conciliated agreement, so I refer the matter for hearing, shortly before or during which event the Commission is informed that a confidential settlement has been achieved between the parties. Again, the outcome is no doubt satisfactory for the complainant and is therefore a successful conclusion to the particular matter - but it does not throw any public light on the provisions of the legislation, and does not add to our case law.
There has been one major exception to this pattern in that although there was still a settlement shortly before the hearing, on this occasion the insurer has made the outcome public: AMP has decided to provide a complainant with disability income insurance with a blindness exclusion, and to review its policy in relation to people with vision disabilities.
The Complainant is a computer programmer who has worked full time in the field for 20 years. He has a wife and five young children, and a mortgage, and wished to protect his family in the event of illness or accident preventing him from carrying out his usual employment. Disability income insurance would provide him with a monthly income if this happened.
The Complainant has a vision disability which may result in his being totally blind in a few years. The traditional position of insurance companies is to deny disability income insurance to people who have vision disabilities on the assumption that they are at greater risk of becoming unable to work. All the Complainant's applications for insurance were refused, so he brought a complaint under the Disability Discrimination Act. When conciliation did not seem possible I referred the matter to the Commission for Hearing.
After a pre-hearing conference, not only has AMP provided disability income insurance with a blindness exclusion, it has also taken the initiative to review its policy in relation to people who have vision disabilities. In future AMP will be prepared to provide many blind applicants with long term cover subject to a blindness exclusion (this means disability directly related to blindness is not covered). Each case will be individually underwritten in the usual way with the provision of cover being dependent on AMP's assessment of the risk attached. The majority of blind applicants who are permanently employed at income levels at AMP's standard level of acceptance, who are well adjusted to their blindness, and who satisfy AMP's usual requirements for occupation, health and pursuits, will be eligible for cover on standard terms, subject only to the blindness exclusion.
I have had several meetings with the Life Investment and Superannuation Association (LISA), and other relevant bodies, on the difficulties people who have disabilities find in obtaining insurance of any kind, but particularly income protection insurance, disability insurance, life insurance and travel insurance. I have also included representatives of people who have disabilities in these meetings which have proved to be very fruitful indeed. We are now in the process of developing agreed industry guidelines to assist underwriters and insurance companies in complying with the Disability Discrimination Act as they make their risk assessments and decisions whether or not to provide cover in specific instances. A draft of these guidelines is currently being considered by relevant interested parties and should be published by the time this report is issued. LISA will distribute the guidelines to its members.
The development of Action Plans by major organisations has now achieved a momentum of its own, with some organisations which have not themselves been the focus of significant complaints following the example of others who developed Action Plans as part of a response to the complaint process. There are now approximately 65 Action Plans lodged with the Commission. (A list of Action Plans is available on the Commission's web site. Copies can be obtained from the organisations concerned or from the Commission.) They come from various community sectors: local governments and councils, tertiary education institutions, Commonwealth & State government departments (including the Transport examples mentioned earlier), non-government organisations, small business and major corporations.
The City of Rockdale (NSW) won a Prime Ministerial Award for innovation for its Action Plan under the Disability Discrimination Act, and they are now sharing the benefit of their experience with other local government organisations. Telstra also is keen to assist other corporations in their Action Plan writing. Such a diffusion of expertise through the system, nation-wide, can only result in furthering the ultimate goal of eliminating disability discrimination.
One of the most encouraging spontaneously developed Action Plans (that is, without the impetus of a complaint) has been that of the National Australia Bank, currently the market leader in Australian banking and one of Australia's most successful corporations. The Action Plan itself is detailed and innovative, and clearly has the enthusiastic support of NAB Management at all levels. The Commission hopes that this organisation's having voluntarily committed itself to a program of eliminating disability discrimination will inspire other corporations to do likewise, both in the banking sector and generally. There are positive signs that this is in fact happening.
Another recently received Action Plan which should, if appropriately reviewed and implemented, create long-overdue change is that of the NSW Department of Justice. Access to Justice is of great importance to people who have disabilities who are over-represented in the Courts. This Action Plan includes the employment for two years of a dedicated staff person to oversee its implementation and to develop it further, and contains provisions relating to equality of opportunity in employment. It is the first to be received from a Department of Justice and as such is a beacon which I hope will inspire other jurisdictions to do the same. (Access to justice is discussed later in this report.)
This developing recognition of the benefits of achieving effective access for people with disabilities as customers and equality of opportunity to contribute as employees has not come about by itself or by virtue simply of the existence of the legislation. The Action Plan mechanism was identified in our strategic planning as a key to the success of the Disability Discrimination Act. We planned to produce a guide for organisations interested in developing action plans; we ended up producing five guides addressed to different sectors and assisting in production of a sixth. (The Guides published by the Commission are for Commonwealth Government departments and agencies; State and Territory government departments and agencies; tertiary educational institutions; non-government organisations; and businesses. In co-operation with the Australian Local Government Association a Guide for local government was also produced, and distributed through the ALGA.)
We are presently developing a more extensive program of workshops to assist organisations to produce effective plans rather than only plans which meet formal planning criteria but do not produce substantial change towards equality to justify the effort. The response to these workshops has been positive, and we are producing a package of information to assist others to conduct such workshops in this area in the future. We are also working to generate other means of encouraging and assisting development of action plans and the Disability Discrimination Policy Unit will be reviewing over the next few months priorities for the areas to be addressed and the types of organisation to work with. (The Commission's own Action Plan was launched in June 1997 and is available on our World Wide Web site, and in alternative formats on request.)
The cooperation of large employer representative organisations and insurance enterprises with the Standards, Guidelines and Action Plan development work of the Commission demonstrates an important aspect of the promotion of anti-discrimination law: on the whole Australian businesses and enterprises are willing to comply provided the issues are made clear to them, provided they are included in the development of any educational, informational or regulatory material; and of course provided compliance does not put them out of business. The Disability Discrimination Act recognises this important proviso in its unjustifiable hardship provisions.
This willingness to comply is particularly true of those larger enterprises which have the staff and research capacity to examine equal opportunity and anti-discrimination law, and to develop, implement and monitor policies within the organisation.
Small businesses, which actually comprises about 80% of all employers and businesses in Australia, do not find it so easy to understand or respond to the requirements of such laws. They do, nevertheless, have responsibilities under the Disability Discrimination Act. I have held meetings with representatives of small business, including the Council of Small Business Organisations of Australia (COSBOA), and listened to their submissions. Clearly the type of information and policy planning achievable by large enterprises is not possible where there are somewhere between two and two hundred employees. The Commission will continue to cooperate with and assist COSBOA to make the requirements of the Disability Discrimination Act understandable and manageable to small business.
The issues are the same: it is unlawful to discriminate, directly or indirectly, against people who have disabilities in employment, in access to premises, or in the provision of goods, services and facilities. The capacity and flexibility of small business to respond to the provisions of the Disability Discrimination Act will vary from situation to situation, and from business to business.
The slice of public life represented by small business, though made up of small bits, is very great. It is in this sector that people who have disabilities seek legal, hairdressing, medical, accounting and other professional services, and it is here that people who have disabilities will be looking for the opportunity to try on clothes, to select from a range of products, and to dine in the restaurant of their choice. The small business area has great impact on the lives of everybody, including people who have disabilities and their friends, relations and associates. At the same time, people who have disabilities and their friends, relations and associates are a significant employment pool and customer base for small business.
As with larger enterprises, small businesses may, if they wish, lodge with the Commission an Action Plan under the Disability Discrimination Act. There are already a few of these lodged, some only a page or two in length, but indicating the steps the business owner intends to take to eliminate, as far as possible, direct or indirect discrimination from the provision of goods, services or facilities.
People with a disability are still seldom considered as full citizens and participants in our political community, rather than as recipients of welfare services and, perhaps, as disadvantaged people in terms of social and economic indicators.
Much of the content of, or conditions for, the right of citizenship and self determination are covered by individual rights recognised in the human rights Covenants: in particular, the right to freedom of opinion, expression and information; the right to freedom of association; and the right to take part in public affairs, to vote and to be elected, and to have access on equal terms to public service.
For people with a disability, political participation includes information on issues of political interest being available in forms and formats that people can receive and understand. It includes accessibility of the places where political processes are conducted. It also covers whether political parties themselves, and other politically active associations, work in ways which include or exclude people with a disability.
The Disability Discrimination Act provides substantial legal protection in this area. Discrimination is unlawful in the provision of services including broadcasting and information services; in the activity and membership of associations, including political parties and other relevant associations; and in the administration of Commonwealth laws and programs, including in relation to the electoral process. State and Territory discrimination laws extend this coverage in relation to State and Territory laws and programs.
Access to voting, to the information surrounding an election but more specifically to the ballot boxes or to a secret ballot, has long been a problem for people who have disabilities, especially those with physical disabilities who use mobility aids or who have difficulty in writing, those who are blind or who have a vision impairment and those who have an intellectual disability. I have received several complainants on this matter, and have had several meetings with officers of the Australian Electoral Commission. They, of course, are aware of the issues and are working towards solutions to the various problems presented to them. The Electoral Commission is currently writing an Action Plan under the Act, but have been somewhat deflected recently by the postal vote for delegates to the Constitutional Convention. I am assured by that Commission that an Action Plan is in the pipeline, and I am sure it will be welcomed by the Human Rights and Equal Opportunity Commission, and by people who have disabilities, when it is completed. The ability to take up this compulsory responsibility, in the same way as all Australians do, is precious to people who have disabilities who, in general, have much to vote about.
Handling the complaints brought under the Disability Discrimination Act is one of the statutory functions of the Commissioner. (Detailed statistics of Disability Discrimination Act complaints,, and some illustrative case studies, can be found in the Commission's annual reports from 1992-3 onwards; the figures provided here merely give an overview of the complaints in the last reporting year, 1996-7.) While providing an opportunity for individual remedy in cases of unlawful discrimination, complaints also provide a type of barometer of community "take up" of the Act. In the last reporting year complaints of discrimination on the ground of disability comprised a third of all complaints received by the Commission; there were 680 received and 738 finalised (some of these being from the year before). Those received showed an increase of 51% over the previous year, so it is clear that people who have disabilities, and their advocates, advisors and lawyers, are growing in awareness of the Act. Of the matters finalised, 25% were conciliated and a further 11% referred for hearing where conciliation was not possible; 37% of complaints were declined, either at the outset or after investigation of the allegations, and 26% were withdrawn. These figures are consistent with experience under the Racial and Sex Discrimination Acts.
An overall picture of who makes disability discrimination complaints to the Commission indicates that about 29% have a physical disability, 16% have a mental illness or psychiatric disability, 4% have an intellectual disability, and another 4% a neurological disability such as epilepsy, while 3% have a learning disability. Around 10% have a sensory disability, about evenly divided between vision and hearing, and 7% have a work related injury; 2% have a condition such as HIV/AIDS or hepatitis, and 4% have diabetes. There is another 18% labelled "other" where the disability is not clearly defined or does not fall into one of these categories.
About 38% of complaints relate to employment, and 44% to access to goods, services and facilities, and to premises (I have combined these as they are often much the same thing). 11% pertain to education, and this year 2% relate to insurance and superannuation a significant drop from 8% in 1995-6. The others are small numbers over the whole range of areas. 52% of complainants are men, 45% women, 1% are from representative groups and another 1% are joint complainants, brought by two or more people.
The Commission's growing expertise with the new data base and records management system should allow interesting correlation reports to be extracted in the future, should such an activity become a priority. This data base will soon have been taken up by several State/Territory agencies, so a more national picture will be possible which should assist both in complaints management and in future policy development.
At the time of writing, the Disability Discrimination Complaints Handling Team has reduced the backlog to almost nil, and the waiting time for allocation of a matter to about six weeks. Where it is clear from the outset that a matter should be declined, this is usually accomplished within a week or so or receipt of the complaint.
Under the Disability Discrimination Act the Disability Discrimination Commissioner has a wider range than in the other Acts of grounds upon which a complaint may be declined; nevertheless the decline rate is still about the same for all Acts. Some disability rights activists have expressed concern at the wider ground for decline available to me and have expressed the view that the exercise of these discretions should be restricted. As it is, most of those declined are because it is not an unlawful act; the complaint is well out of time (more than twelve months after the event); the complaint lacks substance (there is no or no sufficient evidence of a connection between the disability and the event complained of); or because there is another more convenient remedy available to the complainant. Where resources are restricted it is necessary to ensure, as far as is possible and consistent with the aims and objectives of the legislation, that they are used for those people who have no other redress available to them.
Where a matter is investigated and conciliation attempted but not successful, I may refer it to the Commission for hearing and determination. Since the High Court decision in Brandy these decisions of the Commission have not been enforceable, except in complaints against the Commonwealth; however in many cases once the respondent has recognised that discrimination has occurred, intentionally or inadvertently, there is often a positive response and an attempt to redress the problem. Draft Standards and Commission Advisory Notes and Guidelines may well be taken into account in the determination of relevant matters.
Requests for information and advice
In the last five years thousands of requests for information and advice have been responded to, some simple and straightforward, others raising complex questions of law, interpretation and application of provisions of the Act, or seeking assurance for or endorsement of proposed courses of action. We have tried not to spend all our time on these requests (though it would have been, on occasion, possible to do so), but rather to get sufficient information out to those who are likely to be interested. Our hope has been to get people who have disabilities and those with responsibilities under the Act to a point where they can implement their own roles in relation to their rights and responsibilities. Of course, with the severe cuts in funding to the Commission and the proposed restructure, much less of this type of work will be done in the future.
Guidelines for access to the World Wide Web
Government, business, educational and other organisations in Australia are increasingly using the World Wide Web as a means of providing large numbers of people with access to information and other services in a timely and cost effective way.
Availability of information and services in electronic form via the World Wide Web has the potential to provide equal access for people with a disability; and to provide access more broadly, more cheaply and more quickly than is otherwise possible using other formats:
- People who are blind or have vision impairments can use appropriate equipment and software to gain access to electronic documents in Braille, audio or large print form;
- Deaf people or people with hearing impairments could have more ready access to captioning or transcription of sound material;
- Many people whose disability makes it difficult to handle or read paper pages can use a computer, for example with a modified keyboard or with voice control;
- World Wide Web publication may provide an effective means of access for people whose disability makes it difficult for them to travel to or enter premises where the paper form of a document is available.
By itself, however, presence of a document on the World Wide Web does not guarantee accessibility. For example:
- current text readers and Braille output devices are not able to deal with information or links presented only in graphics or photographic format;
- material provided only in audio format will not be accessible to Deaf people or some people with hearing impairments unless an alternative is provided;
- although users can determine many aspects of colour, size and print font of output for themselves, some approaches to text form or colour will render access difficult or impossible for users with impaired vision (and in some cases many other users also).
Further, people with a disability have, on average, lower incomes than other members of the community and may not have access to "state of the art" equipment and software. So, even if access is technically possible, a page may not provide reasonable access in practice.
On the basis of available expert information, it appears that it is technically feasible to remove many barriers to equal access for people with a disability in this area; and that this may be done in a way which does not detract from the usefulness or attractiveness to other users of Web pages, or in many cases actually benefits all users.
In July 1997 therefore I recommended, and the Commission issued, Guidelines for access to the World Wide Web. (These Guidelines are available on the Commission's web site. Modifications will be made as necessary.)
The Disability Discrimination Act does not require, and the Guidelines do not suggest, that Web pages be restricted only to plain black and white text. Forms and formats which give increased functionality for some users or increased scope for creativity by developers are not prohibited or discouraged. It is essential, however, that where a feature does not itself provide equal accessibility, an effective accessible alternative should be provided unless this is not reasonably possible. The guidelines point out areas of Web page design where accessibility may be a problem, and provide strategies for achieving access without sacrificing presentation qualities or functionality, including multimedia elements.
These Guidelines have been quoted in other arenas as a suitable method of ensuring access to the Web pages of various organisations, and are a topic of enthusiastic discussion on the Internet: as responses are received the Guidelines will be reviewed and amended as necessary.
Access to justice
When the Sackville report on Access to Justice was released in 1994 it was evident that the experience of people who have disabilities with the justice system had barely been considered. This refers to all aspects of the justice system including interactions with the police, the capacity to understand or be understood in court proceedings, in sentencing and prison experience. It also includes lack of physical access to the courts for purposes of appearance as a plaintiff, defendant or witness, or to support another person, or for jury duty, or as an employee of the court, or for appearance as a barrister or solicitor, or as a judge or magistrate.
People who have disabilities are over-represented in the courts and prisons of this country, especially people who have an intellectual disability, people who have a mental illness or psychiatric disability, and people who have an acquired brain injury. This over-representation is not because people who have disabilities are more likely to break the law, but because their particular needs and circumstances are often not adequately taken into account by the Law or its officers.
I sent a detailed response to the Sackville Access to Justice report but clearly little has yet happened to change the situation. I have received several complaints about inadequate provisions for people who are deaf or who have a hearing impairment as they appear in court or try to support a family member or friend during an appearance, from people who use wheelchairs who cannot perform their duty either as jury or as witness, and from people who are blind or who have a vision impairment who are unable to use the forms required by the courts to be filled out before an appearance. There is also the perennial problem of people with disabilities affecting their communication or their cognitive functions being effectively silenced by the court's not understanding their attempts to speak, or their need for assistance.
With the hearing function of the Human Rights and Equal Opportunity Commission eventually passing to the Federal Court some of these matters have again been thrown into relief as preparations are made for that transition. As far as I know at present, the Federal Court has agreed to recommendations I made as to the content of the forms that must be filled out by applicants. They will contain a clear reference to Auslan sign interpreters, and to requirements for assistance with physical mobility. In addition there will be room to request the presence of a support person to assist people who have an intellectual disability or acquired brain injury to understand the proceedings, for a communication support person to assist the Court to understand a person with a severe speech impairment, and for a person to provide "assisted communication" to enable someone with severe physical and speech impairment to use whatever form of communication is necessary.
The Court has so far been very positive in its response to these requirements, and I trust it will continue to develop in knowledge and expertise so that people with such cognitive and communication disabilities can experience justice when they bring a complaint of discrimination, or when they are otherwise involved in court proceedings.
Medicare benefits for psychiatric services
In its 1996 budget the Federal Government announced a change in the Medicare scheme which resulted in a reduction in the scheduled fee, and therefore the Medicare refunds available, after patients had attended a private psychiatrist more than 50 times in a year. These changes were effected in Group A8 of the Health Insurance (1996 - 1997 General Medical Services Table) Regulations (No. 230 of 1996). (Consultations in nursing homes and hospitals were not included within these items and are not subject to these limitations.)
The Group A8 Regulations were later amended to include item 319, which commenced on 1 January 1997 and made provision for an extension to up to 160 consultation fees, which however were only able to be claimed where certain preconditions were met. Those preconditions were that the patient should have:
- a history of severe sexual or physical abuse which has lead to a psychiatric illness, or has been diagnosed as suffering from borderline personality disorder or anorexia nervosa or bulimia nervosa; and
- been rated with a level of functional impairment within the range of 1 to 50 according to the Global Assessment of Functioning Scale; and
- a history of failed related psychiatric treatment.
The Commission received a number of complaints under the Disability Discrimination Act that the Regulations discriminated against people with psychiatric disabilities. Those complaints were dismissed because the subject matter of the complaints concerned the law itself rather than a discriminatory action of any person or organisation. The Act makes discrimination unlawful in the administration of Commonwealth laws or programs. It does not make discrimination unlawful in the law itself.
However, the functions of the Commission under the Disability Discrimination Act do include examining enactments for consistency with the objects of the Act and reporting on the results of any such examination. The Regulations are an enactment for this purpose.
At its meeting in February 1997 the Commission resolved to examine the Regulations concerned for consistency with the objects of the Disability Discrimination Act. I conducted this examination on behalf of the Commission.
The examination concluded that the restrictions which were introduced in the 1996 Budget on Medicare benefits in relation to certain psychiatric services included restrictions which had a discriminatory impact on people with a psychiatric disability and which accordingly were not consistent with the objects of the Disability Discrimination Act.
Modifications which were made to the relevant regulations (effective from 1 January 1997) with the introduction of Medicare Item 319 addressed some but not all concerns in this respect. It is regrettable that the Government considered that it was not able to undertake the consultations which led to these modifications prior to the original Budget decision.
As a result of further modifications to the regulations, introduced effective from 1 November 1997 following further consultations, the Commission was unable to conclude that the Regulations as most recently revised remain discriminatory or inconsistent with the objects of the Disability Discrimination Act.
The Commission hopes that the conduct of this examination, and the contributions of the people with a psychiatric disability, mental health professionals and others who made submissions, has assisted in achieving these improvements. The Commission urges continued review of the operation of the relevant provisions, in consultation with consumers and the professional bodies concerned, to ensure that they operate in a manner which is non-discriminatory and which is consistent with and promotes the right of people with a psychiatric disability to equality with all members of the Australian community.
Education and people who have disabilities
In 1996 I undertook a wide consultation with education providers at all levels (from pre-school to tertiary and vocational), and from all sectors (State, independent and private providers). I visited NSW, Queensland, Victoria, ACT and South Australia, including metropolitan, rural and remote regions. I spoke to teachers, their unions, principals, departmental heads and officers, special educators, tertiary institution administrators and disability liaison officers, independent and Catholic schools system administrators and parents' groups.
The information gained has been very useful in informing me and the Commission about the field as development of Standards in education proceeds through the Ministerial task force. (A fuller version of the results of this consultation will soon be on the Commission's web site. I wish to acknowledge and thank all those who made their time available to me, and to recognise the work of Helen Hurwitz of the Commission whose organisation and understanding of the area in all its complexity made this such a worthwhile exercise.) The main areas of concern were consistently reported in every part of the sector:
Funding and support services
The prime need is for reliable and predictable funding for the students' support staff, school ancillary staff and special education staff; for building modifications, support assistants such as integration aides, signers, note-takers and personal care assistants; and for technological aids such as touch-screen and voice-activated computers, Brailling machines etc.
There are problems experienced in the Federal/State distribution of funds, and in assessing eligibility for funding.
Teacher training and staff development
There is a great need for pre-service, in-service, on-the-job, theoretical, practical and continuous education about teaching people who have disabilities and managing a number of people who have disabilities in a class. There were significant concerns about competence and skills, and about OH & S issues; industrial issues; stress; and the ability of a teacher to provide adequate teaching to the whole class.
This was unanimously cited as critical for stimulating response, communication and speech, and many other areas essential to learning later on.
Teachers felt a strong need for assistance and training in teaching children and young people with emotional problems and challenging behaviours such as may arise from autism, Attention Deficit Disorder, hyperactivity, Obsessive Compulsive Disorder and so on. There was anger that classroom assistants and integration aides may not be funded under DEETYA eligibility criteria for some of these conditions.
Personal care, health and medical procedures
The requirement for teachers to administer medication; give injections; apply procedures; give suppositories; apply asthma treatments; and deal with toileting, feeding, and airway clearance of students was experienced as a great stress and occasion for fear. There is a need for systems coordinating education services with health and community services, NGOs and specialist disability associations to provide collaborative support services.
Access to the curriculum
Assistance is required for some students genuinely to access the curriculum rather than being merely present in the classroom. Provision of access to education or genuine learning is dependant on the child's disability and the technical or personal assistance provided.
Attitudes of providers
The attitude of the Principal or Head is what creates the culture in the organisation or school or Department and can make or break successful participation. The attitude of and support offered to the classroom teacher is also of great importance.
Transition processes from home to pre-school, and from each level to the next, including continuity, consistency, predicability, and security of funding and services are all critical for successful outcomes. This means appropriate assessments at each transition, and the assurance that the information will be passed on to the next provider.
The problems experienced in getting to and from any place of education, but primarily pre-school and school were consistently raised. These transport problems apply equally to those with physical, sensory, intellectual and behavioural disabilities.
Knowledge of the Disability Discrimination Act and its implications for education providers as well as parents and students was seen to be inadequate. Also it was felt that parents need information about educational choices. Without information about options, rights and obligations, a child or young person may lose a month, a term, or a year, of schooling or vocational training while a situation is resolved or a complaint is lodged.
Disability discrimination in schools: Students and parents speak out
In a companion activity to my consultations, the National Children's and Youth Law Centre, assisted by the Commission, conducted a project aimed at discovering the education experiences of children and young people with disabilities. This consisted of a survey, a national phone-in, and focus group discussions with students and parents held in Adelaide, Lismore, Wagga, Sydney and Parramatta. The NYCLC generated some favourable publicity around issues arising from the phone-in, in particular in relation to harassment of students with a disability. (The report was released in April 1997 and is available from the NCYLC, c/- UNSW, Sydney, NSW 2052. Tel: 02 9398 7488; Fax: 02 9398 7416; or E-mail: email@example.com. Ref: NCYLC Research Report series 01/97, ISBN 09586463 41; ISSN 1321-3547.)
Sterilisation of girls and young women in Australia
This Commission has, over a long period going back to at least 1988, sought to ensure - by intervention in court proceedings including in the High Court, by direct representations to the Attorney-General and by contributions to public debate - that people with an intellectual disability are not subjected inappropriately to sterilising surgical procedures. Since the High Court's decision in Marion's Case, 1992, well-publicised legal principles have been in place requiring that, except in limited circumstances where surgery is urgently required on ordinary therapeutic grounds (such as to treat cancer), court authorisation must be obtained for sterilising surgery on persons unable to give effective consent. Thus there is a mechanism (even if not necessarily an ideal one) intended to ensure that drastic surgical measures are not taken needlessly and for want of examination of alternative courses.
Despite this, it appears that the number of such operations occurring continues to be very high and to exceed by far the number of cases in which approval has been gained. In very many cases it appears that these apparently unlawful procedures are being funded by the Commonwealth itself through the Medicare system.
I therefore commissioned the production of a Discussion Paper on these issues, to be written principally by Susan Brady, an academic who has researched this area extensively, with Dr Sonia Grover who is a consultant gynaecologist to the Royal Children's Hospital and the Centre for Adolescent Health in Melbourne.
I have now released the report. (The report is available from the Commission on request and on the Commission's web site.) The summary states that:
"Courts and tribunals have authorised a total of 17 sterilisations of girls since Marion's Case. Meanwhile data collated by the Health Insurance Commission shows that at least 1045 girls have been sterilised over this same period, and this figure counts only those sterilisations which qualify for a Medicare benefit and for which a claim has been processed. It excludes sterilisations carried out by hospital doctors on public hospital patients in public hospitals. Comparisons with other data sources suggest that the number is in fact much greater, perhaps by a factor of several times.
The law has failed to ensure these children the heightened accountability they are owed, and without any doubt most were sterilised unlawfully. The facts are clear:
- disease of the reproductive tract is a very rare occurrence in girls, and no less rare in girls with intellectual disability. It follows that very few of these girls were sterilised genuinely 'as a by product of surgery appropriately carried out to treat some malfunction or disease'. The sterilisations of the vast majority were unlawful because they were not authorised by a court or tribunal;
- sterilisation in the absence of malfunction or disease may sometimes be the option of genuine last resort, but this too is a rare occurrence. There are almost always less invasive alternatives of both medical and non-medical kinds, and they work with few exceptions. The sterilisations of the vast majority were unlawful because without any doubt alternative and less invasive options had not been exhausted.
The law has failed to protect significant numbers of children from significant abuse of their fundamental human right to bodily integrity.
Worse, the community has aided and abetted that abuse by funding it - all the 1045 sterilisations which are identified can be identified only because they were 'services which qualify for Medicare benefit', and many more, perhaps several times more, are in the main 'services provided by hospital doctors to public patients in public hospitals'. These matters require urgent attention in the best interests of significant numbers children whose human rights have been and continue to be abused in fundamental ways. The issue of law reform has been on the agenda of the Standing Committee of Attorneys-General since Marion. It requires only the political will to bring it to conclusion."
Three weeks before I released this report I sent it to the Attorney-General and the Minister for Health and Family Services for their information and, if they wished, comment. I sought a meeting with them to discuss means by which the Commonwealth may ensure that it does not fund unlawful sterilising operations which constitute serious assaults in civil and criminal law terms.
The release of the report caused great media interest.
I am disturbed by the reported response from Dr Michael Wooldridge's office to the effect that this is the responsibility of the States and Territories who "carry the duty of care for people with an intellectual disability" and that the States and Territories "are responsible for the enforcement of any laws or regulations which require informed consent and also regulate the medical profession". This would clearly be an ill-considered response: the High Court which made the decision in 1992 is a Federal Court, as is the Family Court which was identified as a suitable court to make such decisions. The payment of Medicare rebates is a Commonwealth responsibility.
It is reassuring to find the Australian Medical Association agreeing that doctors should not be taking the law into their own hands, and that a prosecution for medical assault (as the practice has been described by the Chief Justice of the Family Court, Justice Nicholson) may be the only way to bring home the message.
Rather than distancing itself from this reality, the office of the Minister for Health should be assisting the Government to work towards the type of legislative reform that would uphold the High Court's decision and give effect to its recommendation that a decision making process be provided that would be more appropriate and accessible, and less expensive for families, than the adversarial court process.
I trust that this matter will soon be the subject of proper consideration rather than defensive reaction.
Abuse and institutions
As early as July 1993 I hosted a meeting of people with an interest in the prevention of abuse of people who have disabilities living in "congregate care" in institutions. This was in response to representations from a number of organisations, notably the National Council on Intellectual Disability (NCID) and the NSW Council on Intellectual Disability (NSW CID), concerning the potential for application of the Disability Discrimination Act to issues of abuse in institutions.
Discussions with the Office of Disability (OoD) in the then Department of Health, Housing, Local Government and Community Services led to this meeting which was attended by a range of people including from NCID, OoD, NSW CID and Prof. Robert Conway from the University of Newcastle.
At that time it was decided that a report was required gathering the information already available in many other reports that had been released in the past few years, and drawing some conclusions about the nature and causes of abuse of severely disabled residents. Professor Conway was commissioned to research and write this report. In a subsequent meeting I convened in March 1997 he reported on the processes that had resulted in the release of his report finally in December 1996. There had been many setbacks, and a great reluctance on the part of some State administrations to give him access to their staff, or to their data on the occurrence and reporting of abuse.
The report, entitled "Abuse and Adults with Intellectual Disability Living in Residential Institutions", received considerable media coverage over the 1996 Christmas period but had little political response. Prof Conway discussed in the report the various types of abuse experienced by people who have disabilities, and the conditions and institutional culture in which such abuses appear to flourish. Since then several more disturbing reports have been released, including one on nutrition of people with a developmental disability in institutions, finding a significant occurrence of malnutrition despite the fact that "malnutrition is preventable in this population"; several on the abuse and neglect of residents in various congregate care settings and most recently a report, entitled "Every Barrier Broken", on the widespread sexual abuse of women with psychiatric disabilities.
At the March meeting of this loosely constituted group several strategies were planned. Those the Commission undertook to achieve were:
- preparation of a paper to assist residents and their families, associates and advocates, and workers and managers in institutions, to recognise abuse, to develop policies and training to prevent it, and to set in train appropriate responses to reports of abuse. I hope that out of this work will emerge some national consensus about what constitutes abuse, and nationally recognised guidelines for its elimination.
- ascertainment through a legal advice whether and how abuse occurring in institutions may be reachable through anti-discrimination law processes, given that at the moment their are many factors militating against criminal procedures being commenced (the Public Interest Advocacy Centre is taking up the matter of bringing criminal proceedings to bear).
- letters to all relevant State and Territory Ministers requesting information about their response to the Conway report. Replies were predictably sanguine: this needs to be followed up with frequent reminders to governments of their responsibilities to those in their care.
- the proposal that I should make contact with the various State and Territory police Ministers or other authorities to discuss with them the Disability Discrimination Act in relation to their response to reports of abuse in institutions was not completed as time and resources did not allow. This may be something to take up in the future in conjunction with PIAC's work as that develops.
At a third meeting on 29 November these and other actions were reported, and the group agreed that it would approach the Commission on my departure to request the convening of further meetings. It was recognised that despite the widespread concern about this issue, there was a yet no national coordination of work in the area apart from this irregular meeting. It was agreed that to continue so to meet would be helpful until such time as a more cohesive, nationally focussed activity could be established.
I recommend to the Commission continuing involvement at this loose convenor/coordinator level.
Disability Discrimination Act resource material for Indigenous advocates
It was a great pleasure to launch in October 1997 "Making Connections", a publication linked to the National Indigenous Studies Legal Curriculum. I was especially pleased because of the importance I have always placed on ensuring that all Australians realise that all our Human Rights and Anti-Discrimination laws belong to all Australians.
It is still the case that Aboriginal communities have much higher rates of disability than is expected for other Australians. Conditions such as blindness and deafness, diabetes and its related conditions, acquired brain injury from various causes, and other disabilities, are found in far greater proportions among Indigenous people. This is a terrible thing to be true in this day and age, and is a shameful matter for all the governments that have allowed such a situation to develop and continue.
Submissions to the Commission's report, "Bringing Them Home" also identified the double jeopardy of Indigenous children with disabilities who are still experiencing removal from family, community and culture as they are sent to city-based hospitals, treatment centres and schools far from where they belong - both literally and spiritually.
The statistics of use of the Disability Discrimination Act over the last five years indicate that, despite these facts, there are only a very few complainants who identify themselves as indigenous Australians.
One reason that Indigenous people do not use the Act is, I think, because they tend to see exclusion and unfavourable treatment only in the light of racial discrimination, and of course they are right in most cases. However it would frequently be the case that they receive a lesser service, or restricted opportunity, not only because they are an Indigenous person, but also because they, or their child, have a disability. For example, they may receive a less favourable education because they have a hearing impairment, or may be refused a job not because they are Aboriginal but because of a psychiatric disability or diabetes. So why do Indigenous people not use the Disability Discrimination Act?
The idea of disability in Indigenous communities is different from that in non-Indigenous communities, just as it is different in all the diverse communities that live in this country. The background material in "Making Connections" encourages students to explore the meaning and experience of disability in Indigenous communities, and to become aware of how this meaning and experience may influence the way individuals and communities think about and respond to instances of discriminatory treatment based on disability. It also encourages and guides reflection on the definition of disability, which can be very different in different communities, and on the systems or styles of categorisation of people which can vary so much between communities. It is not possible usefully to address the rights of Indigenous people who have disabilities, to recognise disability discrimination, or to advise people how to make a complaint and get the best result, until these fundamental cultural assumptions and ways of experiencing are understood by advocates and other workers in the field.
The National Indigenous Legal Studies Curriculum consists of a number of core subjects, and a range of electives. The modules on the Disability Discrimination Act are among the electives. Given the relative newness of the Disability Discrimination Act, and the fact that Australians in general still do not yet really understand how discrimination against people who have disabilities occurs, both directly and indirectly, Mick Dodson, the Aboriginal and Torres Strait Islander Social Justice Commissioner and I thought that whereas normally a college would offer a course and develop its own resource material based on a nationally accredited curriculum, in this case that resource material should be developed for them. We agreed that the development of this Curriculum offered a unique opportunity for a joint project to develop, for Indigenous legal and para-legal advocates, education and training tools on the Disability Discrimination Act based the two elective modules.
I invited tenders for the preparation of the resource material for the two modules on the Disability Discrimination Act based on the curriculum, and the NSW Disability Discrimination Legal Centre was successful in winning the contract. The result is the production of a Facilitator's Manual and a Student Workbook specifically written to meet the curriculum requirements of the modules 'Disability Discrimination and the Disability Discrimination Act' and 'Making a Disability Discrimination Complaint', and published together under the title "Making Connections".
I am confident the information and resources in "Making Connections" will be of enormous use to teachers and students alike.
The Facilitator's Guide covers both modules and includes: background information on disability issues and the Disability Discrimination Act; teaching strategies; exercises and rôle plays; overheads of key learning points; and references. The Student Workbook links directly to the Facilitator's Guide and includes: background information, exercises and, at the end of each section, a list of "important things to remember".
The Guide and Workbook are designed for:
- Indigenous legal and para-legal workers who are studying the modules on disability discrimination as part of a National Indigenous Legal Studies Certificate or Diploma.
- Students undertaking other accredited courses in areas such as health, welfare or child care and who pick up these modules as part of their course.
- People working in Indigenous legal, health, welfare, child care, rights or other advocacy organisations who want to complete the courses as an 'in house' training program.
The material specifically focuses on creating an awareness of disability and discrimination issues as experienced by Indigenous people. While the major part inevitably focuses on the law and complaints processes, every effort has gone into ensuring an Indigenous perspective on how this law can be used by Indigenous people. ("Making Connections" can be purchased from the Commission and from Villamanta Publishing. The Facilitator's Manual will be reviewed in 12 months time; those who purchase the material will be provided with updates.)
Communication, education and liaison
Regional visits, speaking policy and outcomes
Throughout my time as Commissioner I have endeavoured to reach as many people as possible. To this end I established a program of "regional visits" to ensure that rural and remote Australians with disabilities, and their associates, and those with responsibilities under the Act would have some exposure to the information. Of course I was in reality able to visit only a handful of places, but everywhere there was interest from the disability community in how they could use the legislation. My visits included every capital city as often as practicable (not, I hasten to add, considered either rural or remote!), Alice Springs, Lismore, Albury-Wodonga, Mt Isa, Cairns, Rockhampton, and Launceston. At each place I endeavoured to hold meetings with local government, local employer and commercial representatives, local Commonwealth and State or Territory Government representatives, education establishments, and the local disability advocacy or support networks.
Whether or not such "visitations" had a lasting effect was the subject of a "regional visit evaluation project" that never eventuated. They did, however generate interest at the time, and most certainly contributed to my knowledge and understanding of the variety of difficulties and pressures affecting those with disabilities in this enormous country. Remote towns do experience much greater problems that we in the city can readily imagine; for example, if you live in Mt Isa and have an episode of mental illness the nearest psychiatrist is on the coast some 1500 km away; if you live in one of the Aboriginal communities outside Alice Springs your nearest physiotherapist may be three days away in WA, and your wheelchair will need to be especially designed to withstand the conditions of such a remote and unserviced area. There may be no accessible transport available to you at all.
I am told that families with a child who has a disability usually end up removing from such remote towns and settlements to a city - thus depriving themselves and the child of the supports and love of the extended family and friendship networks, and in some cases selling up a family farm or business.
My policy on public speaking was, by and large, to accept invitations from national and state bodies but, while being as open as possible, to be more selective about smaller groups where the information and encouragement would not, perhaps, spread out very far. Notwithstanding that policy, I did find myself addressing a wide range of disability representative and advocacy groups, employer groups, particularly Commonwealth and State public service, providers of goods, services and facilities, particularly those whose industry was the subject of a Standards making process, and professional associations.
The Commission has long had a practice of such outreach, and there can be no doubt that it is well received and, as far as it goes, effective. My question is "how far can it go?". Many of these addresses amount to a tutorial from the Commissioner on the relevant Act, with a view to people being more aware of their rights and responsibilities. Given that we are usually speaking to those who already know at least of the existence of the legislation, and are probably in accord with its basic thrust, I am not convinced that this is the best way to use a Commissioner's time. Engagement of what the Americans with Disabilities Act calls "covered entities" in finding ways to meet the requirements of the legislation for reasons either of providing better service, enhancing their customer base, or simply avoiding the inconvenience and expense of complaints, may be a better use of public time and money.
I imagine my thoughts on this are coloured partly by the difficulty of achieving any media coverage at all in the area of disability discrimination. I have long said that unless a person with a disability is being burnt to death, raped or winning a gold medal at the Paralympics, nobody really cares. This has been true throughout the five years of the Disability Discrimination Act: we have had to focus on system change rather than attitude change, and I think in the end this is the best way to win those hearts and minds - or to render the unwinnable irrelevant. It really does not matter if the restauranteur, for example, feels good about having a person with a disability at table for dinner: it only matters that the person with a disability can choose to dine there.
Liaison with disability peak representative organisations
From the outset I have thought it necessary to communicate with, and consult with, disability representative groups and have therefore met regularly with the following organisations: National Council on Intellectual Disability, National Federation of Blind Citizens of Australia, Australian Psychiatric Disability Coalition, Deafness Forum of Australia, Carers Association of Australia, ACROD, Australian Federation of AIDS Organisations, Women with Disabilities, Physical Disability Council, Head Injury Council of Australia, the National Ethnic Disability Alliance, and the DDA Standards Project.
My hope was that such communication with the national Peak Representatives would result in the information being communicated to the State and Territory counterparts: one meeting of a dozen or so participants being preferable to eight. The best laid plans, however, go astray, and this is one of the activities I would, with hindsight, have done differently. For whatever reason, lack of funds, energy or time included, information from these attempts at communication simply did not filter from the Peaks out through the system. Given the possibilities that have since arisen for tele-conferencing, and even video conferencing, I think more use may be made of these facilities as well, perhaps, as more task focussed and outcome oriented reasons to meet. Information is certainly important, indeed it seems to be addictive, but it is not a useful end in itself.
Liaison with Disability Discrimination Act Legal Advocacy Services (DDALAS)
These services, which operate as part of the Community Legal Centre network, are independent from the Commission and provide free information, advice and legal representation to people with a disability or their associates in relation to disability discrimination.
The Commission maintains regular contact with the DDALASs through an informal liaison mechanism whereby requests for information and questions concerning policy issues are quickly responded to by staff. In addition I have met frequently with representatives of the DDALAS network to discuss issues of mutual interest and concern. It is in the nature of Advocates to advocate, but a Commissioner is an advocate for the legislation, its aims, objectives and provisions, not necessarily an automatic advocate for those who lodge complaints. As I was the one responsible for all decisions on complaints, these meetings occasionally resulted in tension reflecting our different roles and functions.
The purpose of the DDALASs is, in part, to inform the larger Community Legal Centre network, to which they belong, of the Disability Discrimination Act and its provisions, and to promote confidence in its use through those services, as well of course as providing a legal advice and advocacy service to people who have disabilities themselves. This purpose did not materialise quite as was hoped; indeed I have recently heard reports of Women's and other Community Legal Centres refusing to assist persons with a disability, preferring to refer them to the DDALAS. This is probably itself unlawful discrimination under the Disability Discrimination Act, and it is certainly not a practice to be encouraged. People who have disabilities have a right to equal, non-discriminatory access to the services provided by the WLS and CLC network, and may not be relegated to their own "special" service. If the problem is knowledge and competence, then it behoves the WLSs and CLCs to develop it - perhaps with professional training from the DDALAS.
The DDALASs are carrying out an important function in the education about and use of the law, and as a national "ginger group" for the recognition of the rights of people who have disabilities.
The Disability Discrimination Policy Unit has produced a quarterly newsletter since the first six months of my appointment. At first this was a single page, printed both sides, of fairly densely written items of news and public education about the Act and its use and effects. For the first two years I wrote this myself, directing one "edition" to the community of people who have disabilities and another, parallel "edition" to those with responsibilities under the Act. This was well received, and the size of the mail-out increased rapidly. I invited people to use all or part of the news-sheet in any of their own publications or information mail-outs; this proved to be a reasonable way to reach a large audience without the Commission incurring the full costs.
A mid-term survey of readers indicated that the news-sheet was considered useful, particularly because it was frequent, topical and reliable. Thus heartened, the Unit now publishes a more "up-market" DDA News. This has grown to six A4 pages and is distributed to major national and State or Territory peak organisations for them to use as they see fit. The mail-out now includes some 1500 recipients and it has been no small task for the Unit to maintain this level of communication with the whole of our "constituency".
A regular "Commissioner's Column" has allowed me to express my views on current policy activities; the rest of the newsletter contains more detailed information about these, along with summaries of conciliated complaint outcomes and of Commission decisions in matters referred for hearing. I believe this Newsletter, also now available on the World Wide Web home page, has been important in the education particularly of people who have disabilities in the terms, provisions and possible outcomes of the Act, as well as assisting those with responsibilities better to understand it.
I trust that the Commission will continue to allocate resources to the writing and distribution of what has been a most successful vehicle of communication.
It will be apparent that some of the actions in which we have invested time and money, based on our strategic planning, have had only limited success and relevance to what has happened subsequently. The public education campaign is one example of this, as is what I have said about liaison with Peaks and DDALASs. Some other strategies and areas of activity by contrast have expanded far beyond their original place in the plan. This is true for some types of activity: work on development of standards; work to promote action plans; and in particular work in considering applications for exemption under the legislation.
It is also true that some areas of social life covered by the legislation have received more than the share of attention which we planned for in trying to focus on areas where the greatest impact could be achieved while also attending to issues which areas presented disadvantage to the widest range of people with a disability.
In some areas which our planning identified as appropriate for major strategic action, such as public transport, people with a disability and representatives and advocates have made effective complaints which have provided the driving force for advances.
In other areas, notably in relation to captioning of television, there has been a preference by major representative organisations for heavier reliance on lobbying and persuasion, with complaints being discouraged on the apparent basis that complaints might compromise co-operative resolution of issues (rather than being perceived as the necessary spur to such resolution). In my view the limited results achieved to date in relation to captioning, compared to those regarding public transport, speak for themselves in this respect.
I do not think that it is actually a significant problem that the work that we have done varies from the work we planned to do. What we have done is to try to seize opportunity and follow up success where we found it rather than stick to a five year plan for its own sake.
Tom Peters, the prominent writer on management theory, has commented that often in strategic planning there is little strategic thinking, and Henry Mintzberg, in "The Rise and Fall of Strategic Planning", goes further, arguing in detail that "strategic planning" has severe limitations as a group of models which rest on the assumption that planning produces strategy. He offers the First World War battle of Passchendaele as a model of a highly planned activity which produced massive and protracted disaster because of events which the planners did not foresee (principally the very simple event of rain and shellfire turning the ground into deep mud), and because of continued following of the plan despite those events.
He argues that strategy is a process of learning, not planning; that strategic thought should avoid both the failure to focus and the failure to change; and that the proper purpose of planning is not to create strategies, but to elaborate and operationalise the consequences of strategies created by other means.
Some military analogies
Mr David Mason, Head of the Disability Discrimination Policy Unit, has the view that some of the most useful sources for assisting strategic thought in relation to disability discrimination are some major works on military strategy. I, having some interest myself in military history and sociology, tend to agree with him. Before you conclude that this is too eccentric a view, derived from frustration at the achievable pace of social change and from too much exposure to the films of Clint Eastwood or Arnold Schwarzennegger, I shall explain further.
In particular I am referring to Sun Tzu's classic "The Art of War" and to Liddell Hart's "Strategy". These are not works which support or promote confrontation and aggressive approaches and seem to have achieved considerable currency in business management circles. They are less prominent in public policy discussion, but have been increasingly useful in organising thoughts on past experience and current strategic choices in the administration of the Disability Discrimination Act. Let us examine the experience of implementing the Disability Discrimination Act by reference to some principles from these works.
First, two principles culled from "The Art of War":
To win without fighting is best. Capturing your opponent's territory or his army undamaged for your own use is superior to destroying it.
These observations, I think, support what I have said about the attractiveness of the model for regulatory responsibility under the Americans with Disabilities Act, where for example accessibility of telecommunications is regulated principally by the general telecommunications regulator. A human rights agency in the position of the Human Rights and Equal Opportunity Commission has neither the expertise nor the authority, nor sufficient personnel, to regulate everything itself. As far as possible the aim should be to have access and equality built in to the ordinary way of doing things rather than being an additional set of requirements subsequently imposed from the margins.
It is important for an anti-discrimination agency not to regard itself, or be regarded, as "administering" the Disability Discrimination Act. The Commission, and the Disability Discrimination Commissioner, have certain functions under the Act but every organisation and enterprise with responsibilities under the legislation administers it. The Commission and Commissioner at best assist in and monitor that administration. This means that all businesses, providers of goods, services and facilities and educational institutions; all engaged in public life, including community, religious and ethnic organisations; governments and government departments, are administrators of the Act, and other human rights legislation, in their ordinary activities and services.
(In early discussions of the establishment of a national telephone typewriter relay service to provide increased telecommunications access for Deaf and hearing or speech impaired people, it was seriously suggested by one government department that the Commission should administer this service, since it was a service which was about removing disability discrimination. The absurdity of this was realised when the Commission pointed out that on this basis we should also run accessible bus and train services, and indeed virtually everything else.)
The process of revision of the Building Code of Australia better to meet the objects of the Disability Discrimination Act and the development of draft transport Standards by transport ministers have been good models in this respect. Each process has closely involved the relevant industries as well as people with disabilities. Another excellent model has been the development of accessibility principles by the U.S. Federal Communications Commission, through a Telecommunications Accessibility Advisory Committee comprising industry and consumer experts.
There is a case for anti-discrimination agencies to adopt codes developed by other regulators so long as this advances the object of eliminating discrimination, even if the agency itself, and perhaps people who have disabilities, think a more perfect version could have been developed. A more perfect version is always just over the next hill - but to achieve the hill we may first need to employ the version we have available.
Indirect discrimination under the Disability Discrimination Act involves imposing a condition or requirement which has a disadvantageous impact on people with a disability and which is unreasonable.
It must be recognised that designing to a standard will continue to disadvantage or exclude some people. Access specifications are generally designed to meet the needs of a high proportion of users in relation to any particular requirement, such as ability to negotiate a certain slope unassisted or pass through a certain sized opening, or to use a piece of equipment such as a phone or an automatic teller machine. Whether a Standard addresses the needs of the "least disabled" 80% of wheelchair users, for example, or 90%, or 95% or 99%, some excluding effect will occur. The question under the Disability Discrimination Act will then be whether this exclusion is reasonable.
In my view it should be accepted that, in general, it will be reasonable for a provider to rely on the most inclusive specifications available in designing or selecting premises, conveyances or equipment, even though these specifications do not provide universal access. Designing to a less inclusive standard may at times be permissible, depending on the circumstances, by reference to the concept of unjustifiable hardship.
As discussed earlier, design and construction of buildings, conveyances and associated equipment and facilities necessarily, or at least reasonably, will usually require the use of specifications, rather than being possible by reference solely to generalised objectives and statements that access must be provided. It is not reasonable to require that construction or installation of new premises, conveyances or equipment, or upgrading of existing facilities, must await further processes of revision of standards. To require in effect that improvements in accessibility must be deferred, pending further refinement of access requirements, would not in my view be consistent with the object of the Disability Discrimination Act of eliminating discrimination as far as possible.
Some more principles from Sun Tzu:
Give an enemy at bay a way out or they will certainly fight desperately. Do not hinder a foe fleeing home.
These points emphasise the importance of provision for negotiated outcomes: in the conciliation process itself; in provision for action plans and the making of connections between action plans and temporary exemptions; and in negotiated processes of standards development.
It may seem perverse to present giving exemptions from legislation as a mechanism for achieving compliance with that same legislation, but like any statutory power, the exemptions power in the Disability Discrimination Act has to be interpreted and applied in a way that promotes the objects of the legislation. The policy which the Commission has adopted on dealing with exemption applications emphasises that the purpose of the exemptions power is to assist in managing the transition to non-discrimination, not to certify discrimination as permanently acceptable. (This policy, and decisions in those applications that have been received, are available on the Commission's web site.) This policy indicates that the Commission will look for evidence on factors including:
- why immediate compliance with the Disability Discrimination Act is not possible; or why immediate compliance with the Act, though technically possible, should not be required;
- processes and results of any review undertaken by the applicant to identify discriminatory practices or circumstances and means for their removal;
- in particular, details of any consultations undertaken with people with a disability for these purposes;
- any measures already implemented or planned by the applicant to achieve the objects of the Disability Discrimination Act including through an Action Plan;
- terms or conditions which promote achievement of the objects of the Act and which the applicant is prepared to meet as a condition of receiving the exemption.
As I have noted, conditional exemptions have been a significant part of achieving progress in access to public transport and may be important in some other areas in future.
Now, to turn to some principles from Liddell Hart's "Strategy":
Adjust your ends to your means
The means directly available to the Commission for achieving the elimination of disability discrimination are limited and this is no doubt the case for anti-discrimination agencies in other jurisdictions. We have a small number of staff and our own areas of directive legal authority are limited. In any case the effectiveness of any law will be limited if it operates only as a set of direct legal commands.
This reinforces the need to focus on acting as a catalyst for activity by people and institutions with obligations under the legislation, and by other regulatory authorities, rather than seeking to exercise authority directly in all cases. The realisation of this method has been described throughout this report, principally in the areas of Standards and Action Plans.
Adapt your plan to circumstances while keeping your object in mind
One of the things that has been effective in working to implement the Disability Discrimination Act has been adopting a principle of strategic opportunism. While trying to have a broad plan of where we are going and how we might get there we have been committed to seizing opportunities where they arise, in particular as a result of important complaints.
One aspect of this has been that we have attempted to concentrate on following up success - most notably in the transport area - rather than diffusing resources in too many areas. This might be criticised as leading to neglect of some important areas, or emphasising issues of importance to people with some types of disability over others. My responses to this are that, first, uneven or messy success is better than uniform or neat failure; second, there is no perfect other way of selecting; and third, to recall that success in one area such as transport may offer a model for later success in another such as education.
Take a line of operation which offers alternative objectives
This principle has been reflected in our work on Standards under the Disability Discrimination Act. In the areas where Standards can be made, we have pursued the development of Standards. This has not been because of a fixed and final view that Standards are the best approach in each area, or a belief that adoption of Standards by the Attorney-General can be guaranteed. We have planned on the basis that either appropriate Standards will be developed and adopted, or that the results of the work can be used instead, or first, through the other mechanisms provided under the legislation, such as guidelines, conditional exemptions, or Action Plan promotion.
Current activity in some States around provision of accessible public transport based on the draft Standard, and guidelines, advisory note and Action Plans in other areas illustrate this point.
Exploit the line of least resistance towards your objectives
One aspect of this has been that in Standards development, the emphasis has been on improved accessibility of new premises, vehicles and facilities. For existing premises, vehicles and facilities there has been a relying largely on known cycles of replacement or alteration to achieve most of the transition to accessibility, rather than seeking to impose a drastically accelerated cycle of replacement or alteration.
Another point suggested by the same principle is that in each subject area we should use whichever mechanisms (as between guidelines, standards, action plan promotion, exemption-based or other compliance promotion) give the best prospects of effectiveness relative to the effort required. This is something that needs continual re-assessing, rather than assuming that we have got the balance right or that circumstances may not have changed.
An example is that, despite extensive work put into it, the process of considering a possible Standard under the Disability Discrimination Act about accessibility of Federal Government communications and information has made virtually no significant progress in over two years. In co-operation with the Attorney-General's Department, we are looking to re-focus work in this area towards achieving outcomes through executive decision rather than regulatory development. One option would be to have more specific commitments on information and communications accessibility built into the revision of the Commonwealth Disability Strategy. This could include adoption of the guidelines which the Commission has issued on accessibility of World Wide Web publishing, or development by the government of its own guidelines on this.
Selection of the internet and telecommunications as priority areas reflects the same principle of choosing the line of least resistance. These are areas of very fast technological change and upgrading or replacement of facilities. They are areas where the potential is expanding for equal access being reasonably readily achievable for people with a wide range of types of disability. At the same time, the issues are not so easy that they can be left entirely to the market or to the course of technical progress. In the absence of clear direction on the necessity of ensuring disability access, many innovations in information and communications have produced additional barriers to equal access rather than removing them.
Of course, priority for these areas also reflects the huge and growing importance of accessibility in these areas, in themselves and as a means of achieving equal participation in many areas of life, from employment to education to access to business and government information and services.
So this seems quite a good basis for selecting these areas for priority in policy activity: it should be important, necessary, but not at all impossible.
In this five years we have worked intensively on what could be described as "fundamentals" for full participation in the life of our society: access to buildings, employment, transport, education, insurance and telecommunications; integrity of the body and freedom from abuse. There are many things that have not yet been achieved, some through constraints of time and resources, and others through delays of circumstance or government. I hope the Commission will continue to bring these matters to fruitful completion.
The Disability Discrimination Act is now entering its second half decade and there are opportunities for development of policy and activity in new areas. As I leave I am taking the liberty of outlining a few things I would like to see done. This is not an exhaustive list, and the items in no way displace policy activity currently under way, but should, I think complement and enhance the work.
People who have disabilities belong in all communities
The Commission cannot be the only repository of knowledge about the Act; neither can it ensure that the principles of the Act are manifested throughout our society: that is also the responsibility of the various community sectors and groups that seek to be represented and to lobby for their various causes.
Women's groups must include women with disabilities as legitimately counted among those for whom they lobby. For example: in women's health it is time that women's groups included women who have disabilities in their definition of their constituency. When they are lobbying for health checks and screening they must remember their sisters who have severe physical intellectual or psychiatric disabilities, or acquired brain injury, and who are shut away in congregate care units. Women's groups should be demanding regular Pap smears, mammograms, and other appropriate health care for these women as women, as their sisters. The neglect of women's health in long term congregate care is disgraceful, and it is not only the province of the Disability Discrimination Act: these people with severe disabilities are, first and foremost, women.
Similarly it is time that women's groups included their sisters with disabilities in their work for equal opportunity of every kind: for child care, for superannuation and insurance equity, for representation on government and other committees - and in their own in their own ranks. The assumption that women with disabilities are somebody else's responsibility, and perhaps even a burden on other women who have to look after them, has resulted in women with disabilities having to fight their own battles for rights and equities that should have included them in the first place. Neither is it safe to assume that women who have disabilities are interested only in disability issues: their presence in the wider work of women's groups should be encouraged, for their perspective and energy are valuable.
Where the Commission can contribute to this outcome, it should be included it in future policy, not only of the Disability Discrimination Policy Unit but also of the Sex Discrimination Policy Unit and the Public Affairs section.
Ethnic Communities Councils and other cultural groups must also recognise that people who have disabilities are an ordinary part of their own community and work for equality of opportunity and participation in their own and in the wider community. They could lobby for ethnically or culturally appropriate food, religious services, culture and language in places of congregate care where people who have disabilities of all kinds may be residing. They could ensure that they inform their own community about the Disability Discrimination Act, and implement it in their own activities. Again, people who have disabilities will have contributions to make beyond those relating to disability matters.
Most especially, if there are negative traditional or cultural beliefs about people who have disabilities, or language that diminishes, ethnic and cultural groups should examine these with as much rigour as possible, and work towards the discarding of such beliefs, assumptions and language. Culture and tradition must not be used as a veil to be drawn over expectations, aspirations, opportunities and hopes limited by negative culture or language, or by ignorance of the law, or by lack of information about alternatives.
People who have disabilities, whatever culture they belong to, are protected by the Disability Discrimination Act.
People who have disabilities are people: the men and women of Australia, the girls and boys of Australia; the brothers and sisters, cousins, uncles, aunts and grandparents of Australia; the mothers and fathers of Australia. The workers, consumers and voters of Australia. The disability is not our essential attribute - our personhood is, and until that personhood is recognised by all groups to which we belong, the Commission will be fighting an up-hill battle to persuade Australia to recognize itself.
Information on the Sex and Racial Discrimination Acts, and the Human Rights and Equal Opportunity Commission Act, should all be made available in alternative formats - including that information which is published in community languages.
The Commission itself must implement its Action Plan. This includes ensuring that all venues used by the Commission are accessible, that Auslan interpreters are advertised as available for all Commission activities, including those under other legislation. The Disability Discrimination Act does not require that information only about itself be available to people who have disabilities, but all information. This means that speeches on Human Rights, information sessions on the Racial Vilification Legislation or Wik or Native Title, or workshops on sexual harassment, should all be accessible. People who have disabilities need to know of all their rights and responsibilities as equal citizens as much as does anybody else, and women with disabilities are more likely to experience sexual harassment than any other group - not that this is evident in videos, training kits or brochures.
People who have disabilities and leisure
Another area which I think is ready for some focus is the response of the retail, hospitality, entertainment and sports industries to people who have disabilities as participants, and as workers. These high service areas tend to be reluctant to employ people who have disabilities, often on the basis that "the customer won't like it". Although on occasion there may be good reason to exclude certain persons with certain disabilities from certain activities, this is not in general a satisfactory - or lawful - response. Engagement of these industries in developing sector specific guidelines for employment of people who have disabilities could open up new possibilities for employment in a growth area.
Service provision to people who have disabilities in these arenas is also in need of attention: from provision of accessible changing rooms to a courteous attitude to people with communication difficulties, these high service areas do not yet appear to understand their obligations under the Disability Discrimination Act. Had I a few more years up my sleeve, I would spend some of them working to improve the enjoyment of people who have disabilities seeking to participate in our community's leisure.
In the U.S. there are government funded "Technical Advice Bureaus" to assist industry and business, providers of goods, services and facilities and employers, to understand their obligations under the Americans with Disabilities Act and to assist them in compliance through information and advice. Such offices established in Australia would be of great service to those with responsibilities and remove from the policy staff of the Commission some of the huge burden of response to enquiries. This would require funding, and it is perhaps in encouraging such activity that the Commission could make a contribution. Or, given the stated preference of the current government for education about responsibilities over complaint handling, perhaps a New Policy Proposal could be put forward to cater for this clearly felt need.
The administration of the Disability Discrimination Act is not the sole responsibility of either the Disability Discrimination Policy Unit or of the Human Rights and Equal Opportunity Commission: it is the responsibility of all Australians.
In the work of the last five years I believe the Commission has laid the foundations upon which non discriminatory structures will be built in the future. Much that has been done is load bearing infrastructure rather than grand edifice: the grand and accessible edifices are yet to come. These will be apparent as people who have disabilities travel independently on accessible public transport, move easily into and through public premises, engage in the commerce and activity of daily life, seek work with as much hope as anybody of getting a fair hearing, protect themselves and their families with insurance and superannuation coverage equitably weighed, and take their place in meeting the responsibilities of community living.
The grand edifices will be evident as people who have disabilities are treated with care and respect if obliged to reside in congregate care; and when the community is outraged at assault or neglect of people who have disabilities and acts with sufficient political will to prevent this - and punish it.
The grand edifices will be manifest when people who have disabilities know equality before the law, integrity of their person, and a place in the political life of Australia.
I trust that the founDDAtions laid in these five years are sufficient to support the great works ahead.
Disability Discrimination Commissioner
17 December 1997