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HREOC - Annual Report 2001 - 2002: Chapter 5: Disability Rights

Human Rights and Equal Opportunity Commission

Annual Report 2001-2002

Chapter 5: Disability Rights

Dr Sev Ozdowski, OAM - Acting Disability Discrimination CommissionerActing
Disability Discrimination Commissioner

Dr Sev Ozdowski
OAM commenced duty as acting Disability Discrimination Commissioner
in December 2000 in addition to his duties as Human Rights Commissioner.
In February 2002 the Attorney-General announced an extension of this
acting position to run until 10 February 2003.

Statement from the Commissioner

This is the 10th
year of operation of Australia's federal Disability Discrimination
Act. There have been some substantial achievements in that time. In
particular, achievements include widespread progress in accessibility
of public transport, and increased accessibility of communications
and information to people with sensory disabilities.

However, there
are also many areas where progress has been slower than might have
been hoped. Setting of detailed standards to clarify what access and
equality mean is a key feature of the scheme of the legislation -
but no disability standards under the Disability Discrimination Act
are in force at the time of writing. I am confident that this will
improve before next year's report, with the Disability Standards for
Accessible Public Transport anticipated to be put before the Parliament
in the Spring 2002 session. Progress can be seen towards standards
on access to premises. At the time of writing it was not clear whether
standards on non-discriminatory access and opportunity in education
will advance through the relevant Ministerial council.

Even more serious
concerns must be noted regarding the effectiveness of the legislation
in relation to employment. There is little evidence of the employment
situation for people with disabilities having improved significantly
since 1992 - even though employment was the original central motivation
for introduction of the Disability Discrimination Act. I intend to
make this area a major focus for policy examination in the coming
year.

It also has to
be acknowledged that we have been able to achieve less for some sections
of the disability community so far than for others using the Disability
Discrimination Act. In particular, people with intellectual or psychiatric
disabilities have not had the same clear benefits as people with physical
or sensory disabilities.

The Commission's
own policy has been to concentrate first on issues where broad gains
can be achieved most readily. These have often been in areas of physical
and communications accessibility rather than in more subtle or diffuse
forms of discrimination.

There will still
be plenty of challenging issues to deal with in disability discrimination,
and beyond that in wider issues of human rights and disability, even
once (or if) we reach the point where the specific accessibility issues
presented by disability have been resolved.

Organisations
at local, state, and federal level all have important roles in advancing
the human rights of people with a disability. At the international
level, the United Nations system this year commenced consideration
of development of a binding Convention on disability and human rights.
The Commission will be offering its experience and expertise in this
process and seeking to facilitate participation by the Australian
disability community.

Deputy Disability Discrimination
Commissioner - Mr Graeme Innes AM

Mr Graeme Innes
is a lawyer and mediator, and has been an equal opportunity practitioner
for 20 years. He commenced as Deputy Disability Discrimination Commissioner
in September 1999. In this role he assists with the handling of public
enquiries, exemption applications and the development of standards
under the Disability Discrimination Act. Mr Innes has worked in this
field in New South Wales and Western Australia and is currently a
part-time member of four Tribunals.

Promotion of awareness,
understanding and compliance

Most work in
this area has focused on development of accessibility standards in
consultation with industry and community representatives as detailed
under other headings of this report. The Commissioner and staff also
undertake more general consultations with disability organisations
and relevant industry bodies to ensure that these organisations are
aware of possibilities for constructive use of the legislation and
to discuss suggestions for further Commission projects.

A summit for
national disability peak organisations was hosted by the Commissioner
and opened by the Attorney-General in December 2001. Papers from this
summit are available on the Commission's website.

Major speeches
given during 2001-02 are published on the Commission's website. A
list of significant speaking engagements is provided in this report.
Public use of the disability rights area of the website continues
to increase with over 400 000 page views being recorded for the Commission's
disability rights web pages in this period.

Research and policy

Access to electronic commerce

Following its
report in June 2000 on access to electronic commerce and other new
service and information technology by people with disabilities and
older Australians, the Commission has been assisting government and
industry bodies to develop initiatives in this area, including through
an Accessible Ecommerce Forum sponsored by the Commission and the
Australian Bankers Association.

In April 2002
the Australian Bankers Association launched industry accessibility
standards on automatic teller machines, EFTPOS and voice response
services and internet banking. The Commission is now discussing plans
for implementation of these standards with individual banks.

The Commission
has commenced planning for a survey of website accessibility similar
to but broader than that conducted regarding Commonwealth government
websites for the electronic commerce Inquiry.

Accessible taxis

The Commissioner
conducted a Public Inquiry on aspects of wheelchair accessible taxi
services during the second half of 2001. Over 90 submissions were
received from industry, government and the disability community. Public
hearings were held in western Sydney, Melbourne, Newcastle and Perth.
A final report was released in March 2002 after consultation on a
draft report released in November 2001. The Inquiry found evidence
that response times were significantly longer for passengers requiring
wheelchair accessible taxis than other passengers making taxi bookings
in some parts of Australia. It was not possible to judge conclusively
whether numbers of accessible vehicles in taxi fleets overall need
to increase to achieve equitable service, because most jurisdictions
did not have, or had only very recently established, adequate performance
monitoring for accessible taxis. Discussions with transport regulators
on improved performance monitoring are continuing.

Television captioning

The Commission
has been chairing a forum on captioning of free to air television
arising from a number of complaints in this area. As at June 2002
free to air broadcasters jointly have indicated that they will very
shortly be tabling a large scale proposal for increases in captioning.

A similar forum
on captioning of pay television services has seen constructive discussions
between industry and disability community representatives but without
the same degree of specific progress to this point.

Education: Access to materials

In response to
a number of complaints, the Commissioner convened a national forum
on access to tertiary educational materials for blind and vision impaired
students in May 2002. Almost all universities participated, together
with disability representatives, publishers, the Copyright Agency,
the Attorney-General's Department and the Department of Education
Science and Training. Recommendations were agreed on access to copyright
materials, provision by publishers of electronic formats, and better
coordination of production and provision of materials in accessible
formats. These recommendations are available on the Commission's website.
A working party involving the Commission, the Australian Vice Chancellors
Committee and other interested parties is being formed to carry these
issues forward.

Exemptions

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

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

A temporary exemption
for a period of six months was granted to Queensland Rail in February
2002 regarding installation of tactile ground surface indicators to
permit clarification of safety issues and other issues affecting design
and installation of the indicators. The exemption was designed to
facilitate discussions between relevant interested and expert parties.
These discussions were close to successful conclusion as at June 2002.

An application
from Westbus Ltd for temporary exemption regarding carriage on buses
of unrestrained and unoccupied wheelchairs (the passenger having transferred
to a fixed seat) was under consideration as at June 2002. This exemption
application seeks clarification of relevant safety issues.

Action Plans under the
Disability Discrimination Act

The Disability
Discrimination Act provides for service providers to lodge voluntary
Disability Action Plans with the Commission. An Action Plan is not
a complete defence against complaints (except in those cases where
an exemption is applied for and granted on the basis of implementation
of an Action Plan) but it can be taken into account in dealing with
a complaint. The Commission views Action Plans as a good means for
organisations to structure and gain credit for their own compliance
with the legislation. There has been particularly strong take-up of
Action Plans from local government and from universities. The number
of plans from major businesses remains small but does include two
of the major banks and the two major telecommunications providers.
Several major businesses are expected to lodge Action Plans early
in 2002-03.

As at 30 June
2002, 228 plans were registered with the Commission (increased from
211 in June 2001). The plans comprise 27 business enterprises, 23
non-government organisations, 30 Commonwealth government departments,
32 State and Territory government departments, 88 local government
organisations and 38 education providers. The register of Action Plans,
and those plans provided electronically to the Commission (183 of
the total), are available through the Commission's website. A number
of organisations have also submitted revised plans or implementation
reports during 2001-02.

Legislative reform and
assessment

Disability Standards

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

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

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

Access to premises

The Commission
has continued to work with the Australian Building Codes Board, and
industry, community and government members of the Building Access
Policy Committee established by the Board, towards the development
of a Disability Standard on access to premises. This would permit
adoption under the Act of content developed by the mainstream building
regulatory regime and would provide industry, local government and
other parties with a clearer and more coherent set of rights and responsibilities.
This work has proved more complex than was earlier hoped but a draft
standard is expected to be able to be published in late 2002 with
a view to adoption in 2003.

Education

A taskforce of
the Ministerial Council on Employment, Education, Training and Youth
Affairs has developed draft disability standards on education. The
Commission has been providing advice to participants in this process.
As at June 2002 the draft standards were before the Australian Education
Senior Officials Committee which was close to finalising a recommendation
to the ministerial council on adoption of the standards, with only
a small number of issues regarding the relationship of the draft standards
to existing obligations to be clarified.

Employment

Development of
disability standards on employment did not advance significantly during
2001-02, with standards development efforts being concentrated on
the areas of access to premises, public transport and education.

Public transport

The Commission
welcomed the passage in June 2002 of the Disability Discrimination
Amendment Bill, providing power for the Commission to grant exemptions
from the Disability Standards for Accessible Public Transport in the
same way that it is able to grant exemptions from the existing non-discrimination
provisions of the Disability Discrimination Act. Agreement previously
given by the Australian Transport Council to authorisation of the
standards was contingent on this provision for regulatory flexibility
through exemptions being made. The standards are now expected to be
placed before the Parliament in the Spring 2002 session.

Speeches

A selection of
speeches, seminars and presentations made by, or on behalf of, Commissioner
Ozdowski during 2001-02 are listed below. Further speeches are available
on the Commission's website at www.humanrights.gov.au/disability_rights/speeches/speeches.html.

Launch of
Westpac Action Plan
, Westpac, Sydney, 24 July 2001.

An ABC for
all Australians: Launch of Disability Awareness Resources,
ABC,
Sydney, 9 August 2001.

The Human
Rights of Mentally Ill People: The Commission Inquiry and After
,
Mental Health, Criminal Justice and Corrections Conference, Sydney,
19 October 2001.

Acting Locally
against Disability Discrimination
, Barossa Council, Tanunda, South
Australia, 29 October 2001.

Equal Employment
Opportunity for People with Disabilities: How to Move from the Theoretical
to the Actual
, Equal Opportunity Practitioners in Higher Education
Australasia, Canberra, 30 November 2001.

International
Day for People with Disabilities 2001, Alice Springs, 3 December 2001.

Opening of the
Commission Summit for Peak Disability Organisations, Sydney, 4 December
2001.

Presentation
of Certificate of Recognition to National Australia Bank, Melbourne,
19 February 2002.

Disability
Discrimination legislation in Australia from an International Human
Rights Perspective: History, Achievements and Prospects
, University
of New South Wales, Sydney, 8 April 2002.

Launch of Banking
Industry Accessibility Standards, Human Rights and Equal Opportunity
Commission, Sydney, 15 April 2002.

Launch of
Disparity: A Journal of Policy, Practice and Argument
, ACROD Dinner,
Australian War Memorial, Canberra, 22 May 2002.

The Deputy Disability
Discrimination Commissioner gave around 35 speeches during 2001-02
including: access to premises in every capital city in February 2002;
speeches to internet conferences on access to the web; law and other
university courses on the Disability Discrimination Act and its implications;
presentations to state government department heads on Action Plans;
and conferences and workshops on the implications of the Disability
Discrimination Act.