The continuing battle for equal rights for people with a disability

The Disability Discrimination Act and the continuing battle for equal rights for people with a disability

Chris Sidoti Human Rights Commissioner and Acting Disability Discrimination Commissioner ACROD Convention Cairns 27 November 1998

 

Introduction

I have to admit that two months ago when I took the title " The Disability Discrimination Act and the continuing battle for equal rights for people with a disability" for my paper today I was not attaching great importance to the precise words of that title.

It seemed as good as any other title to cover what I knew I would want to talk about - a stocktake after six years of the DDA and after a year for me as Acting Disability Discrimination Commissioner. Where we have been and where should we be going? What has been achieved and what has not? Which approaches has the Commission taken to its roles in disability rights and which should it take now? What are the roles in this of the disability community and its representative, advocacy and service organisations?

Those are still the things I want to talk about today. But it's November, it's end of year exam time, and like a good student I think I should also address the actual topic in front of me.

The word that strikes me is "battle".

Perhaps it is too easy, maybe presumptuous, for us to talk about political and legal and social struggles as battles, about strategies, advances and retreats and being in the trenches, about victories and defeats. Perhaps we should only talk about battle when we really mean people fighting with deadly weapons.

But the struggle for human rights does have high stakes. It is about life and death issues as much as any battle is, and it is about adopting the best tactics to achieve strategic goals to ensure ultimate victory. I am not comfortable with the imagery of battle but on this occasion I am stuck with it. So I'm going to refer to the concept of battle throughout my address today. I think it prompts some useful themes for discussion.

Human rights - the legacy of battle

Fortunately my knowledge of battles is second hand, through other people and through books and films. I would like to give you an account of the battle for equal rights for people with a disability based on battles from Star Wars and the Lord of the Rings, full of the magical triumph of good over evil. But unfortunately we are not yet in a position for speeches like that.

Not that I intend to give you something like the first half hour of the film "Saving Private Ryan", grim and gory and graphic, leaving the audience shocked and in tears. "Saving Private Ryan" is an appropriate starting point, however. That film is about the D-Day landings and events immediately following them, events that were terrifying and terrible and costly in human lives but ultimately of value for human rights.

For one thing, as the Allied line in France advanced it put a belated stop to deportations of men, women and children to death camps because they were Jewish or homosexual or had an intellectual or psychiatric disability.

For the longer term, the fruit of the battles of the Second World War included the Universal Declaration of Human Rights, fifty years old in two weeks time on 10 December.

A large part of the ancestry of Australia's DDA, as with race and sex discrimination legislation and other human rights law, can be traced to this and subsequent United Nations human rights activity.

And some lessons from battles

Let me turn from human rights laws as the legacy of battles like that on Omaha Beach, back to my topic of continuing battle for equal rights.

We have just had the eightieth anniversary of Armistice Day 1918. You may have seen or heard one of the few old soldiers still surviving from that war, still shaken by recollections of year after year bogged in mud and barbed wire, battling over much of the same ground where many others had fought and fallen before.

Not that advances and victories were not gained. But the gains were achieved at immense cost which could have been lessened or avoided with better leadership, in particular with greater preparedness to adopt innovative methods of attack (like the use of tanks) and less willingness to persevere in methods which were not working (like direct assaults relying on the bravery of individual infantry).

More fundamentally, each of the contending forces would have been better off seeking a negotiated settlement around the end of 1914 after the initial battles or at almost any subsequent point in the conflict.

Yes, I am afraid that I am saying that all this has quite a bit of relevance to experience so far with the DDA. Before elaborating on this, let me make very clear that my comments on needed change are not addressed principally to disability community organisations but in large part to the Commission itself.

I should also say that I may do less than justice here to the positive things that have been and are being achieved. I do not apologise for that, since these things are well described in the regular reports which I distribute to the community and those which my predecessor as Disability Discrimination Commissioner distributed before me. My latest report was given to the Commission on Tuesday this week and posted on our Internet site yesterday. I encourage you to look at it, bookmark it, recycle its content for your own use, respond to it. Within our greatly reduced resources we also do our best to meet requests for this report in other forms.

In summary, my points today about the DDA are these.

• Advances are being achieved, although not on all fronts.
• In many cases these advances are taking longer than they should and requiring disproportionate effort by everyone involved.
• Too much effort is being allowed to be dissipated in traditional methods of attack which produce limited results at best, while innovative methods need to be developed, endorsed, and adopted.
• More attention is required to approaches allowing issues to be resolved by negotiation or arbitration rather than having to be fought out.

The other front: human rights and disability

Before discussing battles using the DDA, though, let me pause to note that there is a whole "other front" of human rights and disability issues beyond those covered by the DDA. For the Commission the keys to victory have often seemed harder to find on this other front, human rights issues for people with disabilities beyond the DDA.

I am thinking in particular of issues of accommodation rights and abuse.

Many of your members will be interested in the recent release by the National Disability Advisory Council of a Discussion Paper on De-institutionalisation. The paper proposes a number of recommendations for consideration including that

• there be no further inappropriate placements of children in institutions
• a program of de-institutionalisation for children be completed by 2001
• State governments produce de-institutionalisation plans for adults by 2001
• independent agencies be available to assist people with disabilities and their families make choices about alternatives to institutional accommodation.

I also wish to encourage measures to ensure that people with a disability have accommodation options consistent with Australia's human rights commitments and I therefore welcome the initiative by the Council and look forward to contributing to future discussions.

As the paper recognises, there is no question about the fact that abuse of people with disabilities reliant upon accommodation support services continues. This is particularly true of large institutions where both individual and systemic abuse is reported on a regular basis. I am very conscious that this issue is one that people with disabilities, advocates, families and concerned service providers have been trying to address in a variety of ways for many years.

While closing large institutions would have a positive effect on the human rights of people currently reliant on them, closure in itself would not solve the problem of human rights abuses. Properly funded and delivered support services and real choice of community based options are necessary for any de-institutionalisation program to succeed. These services must be subject to independent monitoring and evaluation to ensure the abuse symptomatic of institutions is not simply transferred to the community. Commonwealth and state governments must co-operate to ensure that is the case.

The Commission does not have the answer to this problem; all I can do is contribute to the goal of stopping abuse in the most effective way possible given the resource limits we work under. One possible contribution the Commission could make would be to host a forum in which effective monitoring and safeguarding mechanisms are discussed and promoted. I intend in early 1999 to discuss this idea further with interested groups and encourage ACROD to contribute to this discussion.

Private Ryan and private dispute resolution

To return to the DDA, let me start with some thoughts on the limitations of the method of attack which has consumed most time and resources to date, the individual complaint process as it has generally been administered. I must emphasise here that I am speaking today only of disability discrimination complaints.

In some places and at some times, single combat has been an important method of battle for settling a wider conflict. And not just in ancient or medieval times. In his book "The Right Stuff" Tom Wolfe argues that America's first astronauts were in effect serving as "Single Combat Generals" in the cold war. And John Glenn was a "Galactic Single Combat General". (I cannot help pointing out that last month Senator Glenn, as he now is, was in space again at age 77 while the Federal Court was upholding my finding that an upper age limit of 28 for Australian army helicopter pilots was improper discrimination. The Commonwealth of course is appealing against that finding.)

For single combat to work to resolve wider disputes, it has to occur openly, in full view of both sides.

That is how precedents in test cases are supposed to have wider effects - decisions are made openly and reported publicly with reasons which parties to other cases can apply to their own situation.

A number of reviewers have said that the most chilling scene in "Saving Private Ryan", that most shows war as horrible and futile, is one of two men fighting to the death almost in silence, indoors, alone in an otherwise empty room.

I am afraid this reminds me of something.

I said in a recent speech on employment that disability discrimination employment complaint experience to date has involved

• resolution of a high proportion of complaints by conciliation (or other agreed outcome including withdrawal of complaint) and
• some clear instances of achievement of non-discriminatory practice.

But this has required

• investment of a considerable proportion of the Commission's complaint handling resources (and those of State and Territory authorities)
• correspondingly large use of time and effort (and in some cases money) by complainants, advocates or representatives, and employers
• numerous complaints which could equally well have been dealt with under State or Territory discrimination laws (although I am well aware that in some situations the DDA remains the only available remedy due to defects in local laws, notably the failure of the South Australian legislation to apply to psychiatric disability and the absence of any State prohibition of disability discrimination in Tasmania)
• the resources of the Commission and the parties being consumed in dealing with a substantial number of complaints regarding Commonwealth and other government bodies which were and are legislatively required to have their own EEO policies and procedures in place and which should have been capable of either avoiding the problem arising or at least resolving it internally
• efforts to unscramble some badly scrambled working relationships after the event, when more availability and exchange of information up front might have prevented the problems in the first place.

I think that these comments apply to complaints more generally rather than only in the employment area. Resolution of complaints by confidential processes has generally been on an individualised basis and arguably at a level that does not justify the resource allocation involved for the Commission and for parties to complaints.

Alternative approaches to complaint handling

Some disability discrimination complaints have produced decisive results on issues of broad public importance but this has generally not been achieved by relying solely on confidential processes of investigation and conciliation.

Perhaps the most notable area of achievement to date under the DDA has been access to public transport. The two complaints which kick started developments in that area - regarding access to a new railway station in Newcastle and regarding Adelaide buses - produced swift and large scale results precisely because they were both referred to the Commission for public inquiry without any prior private investigation or attempt at conciliation. In the first case this enabled the Commissioner to negotiate a resolution directly with the Minister without complications of conflicting roles. In the second case, a conciliated settlement was reached but at the hearing, on an open public basis, with the assistance of the Commission's then President.

The single complaint which has had the greatest impact was probably that of Mr Scott against Telstra regarding access to the telecommunications system for deaf people. An agreed resolution to that complaint was reached but only after the matter had been referred for hearing and a finding of liability for unlawful discrimination made by the President.

I am not saying that every complaint of substance should be referred directly for hearing. On the contrary conciliation remains an important process for providing individual remedies for individual acts of discrimination - important but limited.

The functions of investigating complaints and attempting conciliation are and will remain significant parts of our statutory responsibilities. We need from time to time to look at what we do when we investigate complaints so that we discharge those responsibilities as effectively as possible.

Public investigation of complaints

I am now convinced that I am not required to restrict myself to a model of investigation in private, relying principally on correspondence back and forth between the immediate parties to the complaint, and that I should not so restrict myself when acting as Disability Discrimination Commissioner any more than I do in my role as Human Rights Commissioner.

If there must be battle, let it be open. Let the strategies engaged be the most appropriate ones to achieve the most comprehensive results in protecting and promoting human rights.

Many disability discrimination complaints can and should be investigated by more open processes, comparable to those which the Commission uses in dealing with exemption applications under the DDA, or those used in public inquiries like our current closed captioning inquiry. This could include conducting a form of hearing or other public forum in appropriate cases. The DDA clearly provides sufficient power to investigate in this manner.

Whether this approach is appropriate should be seen as a decision to take on the merits of each case or class of cases, or as a general policy matter, rather than being a question closed by past practices and legal interpretations.

I am not suggesting that what is said or done in conciliation should be reported or discussed publicly without the clear agreement of the parties. The DDA quite rightly has a provision requiring conciliation conferences to be held in private but this only applies to conciliation conferences - it has no application to investigation or other activities in complaint handling.

The DDA specifies that a report from the Commissioner referring a complaint to the Commission for hearing must not set out or describe anything said or done in the course of conciliation provisions. Again, this clearly is not a general secrecy or confidentiality provision regarding the whole complaint process. It applies to conciliation but not to investigation or to the fact of a complaint being made.

The DDA also provides that evidence of anything said or done in the course of conciliation proceedings is not admissible in subsequent proceedings relating to the matter. This is not a confidentiality provision, it is only an evidentiary provision. More to the point for present purposes, it applies only to conciliation proceedings. The fact that a complaint has been made is separate from conciliation proceedings regarding that complaint. The investigation of the complaint is also separate in principle and capable of being separated in practice from conciliation.

The DDA also provides (on pain of fine or imprisonment) that Commission members, staff or other persons exercising powers or functions under the Act shall not "record, divulge, communicate or make use of any information relating to the affairs of another person acquired by reason of the person's office or employment".

Clearly this provision applies to unauthorised or improper disclosure. But it specifically does not apply where use or disclosure is made in the performance of a duty, function or power under or in connection with the Act. Publication of information about a complaint for the purposes of investigating that complaint appears to be well within this exception. Publication of information about complaints for the purposes of other Commission functions also appears to be covered by the exception and thus to be permitted.

Rather than information about complaints being subject to a general ban on use and disclosure, the questions to be asked should be

• what use or disclosure is justified to advance the objectives of the DDA? For example it might be possible and appropriate to disclose the nature of a complaint but not the identity of one or more parties.
• connected with this, what would be an unreasonable disclosure of personal information for Privacy Act purposes?
• what information should be protected to maintain the confidence of parties in the process (and the willingness of a complainant to proceed with the particular complaint) even if disclosure is not legally prohibited?

The DDA states that the Commissioner "may, for the purposes of this Act, obtain information from such persons, and make such inquiries, as the Commissioner thinks fit". The Human Rights and Equal Opportunity Commission Act also contains the general provision that for the purpose of the performance of its functions the Commission may make an examination or hold an inquiry in such manner as it thinks fit. In my view these provisions clearly confer adequate power to include public inquiry as an element of complaint investigation.

Obviously, this power like any other needs to be handled properly, including with due regard to the requirements of natural justice. The requirements are the same as for other aspects of complaint handling: give affected parties an opportunity to be heard and avoid bias.

Both these purposes in fact can be as well if not better served by conducting investigations openly rather than in private.

One of the great benefits of conducting a more open investigation of disability discrimination complaints, particular regarding access issues, is that it allows participation of people, in the disability community and elsewhere, who have expertise to contribute or an interest in the outcome but who are not direct parties to the complaint. I am thinking here not only of physical access issues, as important as they are, but of access issues affecting telecommunications and other communications and information facilities like the internet.

Focusing effort for effective results

It is of course likely that the Commission would not be able to deal with the same number of complaints using this approach as with existing complaint handling models. A more open, consultative approach requires more resources, both financial and personnel, and as you may know our budget has been cut by 40% over the last three years.

It is necessary for us to look more closely at the effort we apply to complaints on the books and at the complaints we are taking on the first place.

Writers on military strategy from the ancient Chinese Sun Tzu's "Art of War" onwards have emphasised the need to concentrate resources on selected objectives to have a reasonable chance of success, rather than dissipating resources among too many objectives.

The Human Rights and Equal Opportunity Commission Act requires that the Commission perform its functions, including its functions under the DDA, "for the maximum benefit of the people of Australia". It does not seem to me to be consistent with the legislative direction to perform our functions for maximum benefit, if we disclaim any right to make strategic choices over the major part of our business and simply take whatever complaints come through the door, more or less in the order that they come in and without any clear distinction in the level of resources or type of activity applied to them.

Non-duplication

If our work is to have the maximum benefit for the people of Australia, we should not be in the business of duplicating more or less equivalent work of other organisations.

We clearly should not duplicate the work of specialist bodies such as workers' compensation tribunals that between them have resources far beyond those available to our Commission. Although there is still room for improvement, I think we have been reasonably effective in referring complaints to more appropriate specialist remedies, including by use of the power to decline complaints.

I am not convinced, however, that we have been effective in avoiding duplication of the work of organisations with closely equivalent roles such as the State and Territory equal opportunity and anti discrimination bodies.

I do not accept that the legislation gives a complainant a right, in a strong sense, of choice of jurisdiction. The complainant makes his or her choice of preferred jurisdiction but I then have a responsibility to decide whether to deal with the complaint, on grounds including whether there is another more appropriate remedy or whether the matter can be more conveniently dealt with by another statutory authority.

I am conscious that issues in this area require further discussion within the Commission, with our State and Territory colleagues and with the disability community. And I realise that many lawyers will not feel comfortable with the Commission taking a more selective role. However, in the interests of promoting victory in this continuing battle, I intend in future decisions to examine very critically elections by complainants as between Federal and State jurisdictions.

Matters already adequately dealt with

Another area where I think more selective application of complaint handling effort is required is where there is reason to conclude that an adequate remedy for a complaint has already been provided or offered but the complainant wishes to continue with the matter.

To revert to grisly battle scenes from the cinema, in one scene in Monty Python and the Holy Grail King Arthur fights the Black Knight. The Black Knight refuses to concede defeat or even serious injury despite having his limbs hacked off one by one. Some complaint handling experience has reminded me of this in reverse, where a complainant has refused to concede victory despite having achieved or being offered everything that the legislation could be reasonably construed as requiring, if not more.

The DDA provides that the Disability Discrimination Commissioner may decide not to inquire into an act or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act, on grounds which include

• in a case where some other remedy has been sought in relation to the subject matter of the complaint - the Commissioner thinks that the subject matter of the complaint has been adequately dealt with; or
• the Commissioner thinks that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act.

A number of decisions by the President of the Commission confirming decisions to decline complaints show that this provision is applicable where an employer or service provider provides appropriate internal avenues for redress of grievances. The Commissioner is not bound to continue investigating or attempting to conciliate or to refer to hearing matters which he or she thinks have already been adequately dealt with by the respondent.

In my view this need not mean that a remedy or settlement has been agreed to by the complainant. If an offer of an adequate remedy is made, I may regard this as a sufficient basis for finding that the matter has been adequately dealt with and declining to deal further with the complaint. If a complaint has been adequately dealt with, I have not only the power but a duty to decide on that basis to cease dealing with the matter, rather than continuing to seek an agreed settlement by conciliation or referring the matter for hearing because it cannot be conciliated.

I intend to adopt an increased focus on whether complaints have been adequately dealt with. A more publicly declared preparedness to decline complaints on this basis will, I expect, have a number of benefits

• in avoiding wasting the Commission's firepower and the resources of the parties in battles over ground where the objective has already been substantially achieved
• in giving respondents incentive and encouragement to come to the negotiating table with peace proposals instead of digging in and ordering further supplies of lawyers armed with barbed wire or nuclear weapons, which in many cases respondents will be better able to afford than complainants.

Structures for a just and lasting peace

Locally negotiated truces need to be encouraged but we also need more general mechanisms for just and lasting peace on a wider basis.

When the DDA was passed, provision was made for rights and obligations to be set out in more detail and with more certainty through instruments to be known as "Disability Standards". These were to be developed by the Attorney-General, subject to approval or amendment by the Federal Parliament.

It was recognised that everyone involved had an interest in better ways of deciding how, when and where services and facilities should be made accessible, rather than fighting about it case by case by case or having design of services and facilities dependent on the progress of more or less random complaints and how those complaints are handled by different courts and tribunals interpreting the very general terms of discrimination laws.

A very large amount of work has gone into standards development processes, on the part of the disability community, industry, government agencies and the Commission itself. But six years after the Act was passed, not a single Standard has been adopted.

I will not review each of these processes here, as they are discussed in some detail in my regular reports. I would again encourage you to look at my latest report for information on developments on employment. In return I would welcome information on initiatives which I understand ACROD has been taking regarding increased funding and status for advisory and information services. But there are some points in the standards area that I do want to discuss today.

Public transport processes

Of the standards development processes, public transport is the most advanced and still seems to offer the best prospects of adoption in the near future.

Some of you here may even be old enough to remember the victory when Ministers at the Australian Transport Council endorsed draft accessible public standards in principle. Of course, the veterans of those battles are getting fewer every year . Seriously, it really was quite some time ago, back in June 1996.

The bells rang out across England to celebrate victory after a breakthrough using tanks at Cambrai in early 1917. But the tanks were an early, still experimental model. They broke down, the attack faltered - and the fighting was still going nearly two years later. So too with the draft transport standards.

In my latest report I describe some re-engineering which the Commission is working on with other participants to get the transport standards machine rolling forward again with everyone back on board. This is to find some way to meet the desire, expressed by industry in particular but also consumer representatives, for more up front certainty rather than having to go through complaint processes to see if the standards have been complied with.

When we met in October with the Implementation Working Group established by the ATC, we put forward options for certification of certain specifications as "deemed to satisfy" the Standards, and for certification of the provisions for the Standards regarding "equivalent access" or "unjustifiable hardship" as being satisfied in particular circumstances.

My hope is that this power could be provided by the standards themselves, rather than requiring legislative amendment - which would involve more delay. The Attorney-General's Department is presently considering the legal validity of these options.

In exercising this power the Commission of course could and would ask for and act on recommendations of other organisations with expertise in this area and could refer to and pick up specifications or codes emerging from other processes. This could be done by the kind of limited public inquiry process I proposed earlier.

This approach may offer a means for dealing with the problem of harmonising different standards on access issues. It would also provide a process through which possible revised specifications for future incorporation in the standards could be brought forward and tested

I think these proposals may offer useful models for standards development in other areas under the DDA.

The long delay in the standards process increases the importance of all parties focusing on existing rights and responsibilities under the DDA and means for ensuring that these are complied with.

The lodgement of an Action Plan by Victoria's public transport authorities is a major and positive development in this respect, following those of authorities in Western Australia and South Australia. I am hopeful that public transport authorities in other jurisdictions will also lodge Action Plans in the near future.

Connected with their Action Plan, the Victorian authorities have lodged an application for temporary exemption regarding physical accessibility of trams, and I have commenced inquiring into the issue to determine what action I should recommend to the Commission. The application is not sought to permit the authorities to do nothing, but to establish a timetable for making Melbourne trams accessible for people with disabilities. I encourage you to refer to the information available from the Commission on that application. I am seeking community submissions on this application. I propose to convene a public hearing to permit the application to be debated and evaluated on the basis of the best available advice.

I also anticipate an exemption application in the nest few weeks regarding aspects of regional airline services. During the course of the Commission's Bush Talks program this has emerged as an important issue for people with disabilities in regional, remote and rural areas. If received as expected the exemption application will also be the subject of a submission and inquiry process. If for some reason the application is not received as expected, I intend to conduct some other form of public inquiry into issues in this area, perhaps along the lines of our current inquiry on closed captioning. In the Commission's current circumstances any inquiry process must necessarily have a very modest budget. The captioning inquiry has operated so far with a budget of not much above zero but it is still enabling the effective examination of issues for all that.

I also intend - subject to consultation with parties to particular complaints - to include public inquiry elements in future in the investigation of public transport complaints and other complaints which raise broader than individual issues, to permit wider industry and consumer contribution and to encourage systemic change, not only individual remedies.

Access to premises

There are important and continuing developments on issues of access to premises. I understand that your Convention has discussed progress in relation to the revision of the Building Code of Australia earlier in the week and I do not want to repeat information already covered.

I note though that the Australian Building Codes Board has made clear that it wants to get to the point where a suitably revised BCA can be picked up as part of a DDA Standard in the area of access to premises. Before this can happen the standards power in the DDA needs to be amended.

Such a change has the support of industry and all participants involved in current discussions and, I understand, the support if both Government and Opposition. I hope the necessary amendments will be passed by Parliament in the first half of 1999.

I also hope that the consultation and negotiations taking place will result in a revised BCA which prescribes a level of access to buildings sufficient to meet the objects of the DDA so that, when the Act is amended, a standard can be adopted quickly. There is still considerable work to be done on some issues before we are at that point but I am optimistic we will get there.

To achieve that, we have encouraged support for standards picking up a revised BCA piece by piece as issues are resolved, reserving those issues where a reasonable resolution is still to be reached rather than allowing dispute on one or two issues to derail the peace negotiations and force everyone back out into the mud and barbed wire of the battlefield.

To support this approach I have made clear that as and when issues are acceptably dealt with in the BCA process we will amend the Commission's DDA Advisory Note on access to premises to incorporate the revised BCA by reference.

The BCA of course deals principally with new construction. The ABCB has recently established an Existing Building Working Group to examine issues of the framework and process for determining access requirements for existing buildings undergoing new work or significant re-development and requiring a building permit. This is an important development that I welcome and support.

The Group is looking at the feasibility of establishing local systems, involving representation of key interested parties, including people with disabilities, to apply a common set of protocols or guidelines to any application for either

• a variation from deemed-to-satisfy access provisions or
• a request for approval for a method of meeting performance requirements by providing equivalent access.

In effect such a system would be seeking to provide building owners and operators with an up front 'certification' that they could proceed. Like the certification proposals in the public transport area, this raises some legal questions that we will be looking at with the Attorney-General's Department.

It also raises a number of questions about the role of access experts, as advisers and consultants but perhaps also as certifiers. We need to discuss this further in the next few months. I expect ACROD has a particular interest in it.

In principle, there could be considerable room to expand the role of organisations with expertise on access issues if these sorts of proposals on certification of DDA compliance come into effect.

• Access experts may need to think about how to operate in a considerably larger market for access audit services than they are accustomed to.
• A revised compliance regime potentially changes the position of access experts for the better in terms of possible liability for the advice they give. Advisers can get sued but decision makers only get reviewed.
• An expert giving confidential advice on possible or probable compliance may get criticised from one or more sides for not being able to represent the views of the whole community. Not to put too fine a point on it, it is possible to be accused at the same time of having sold out and of not delivering on the sale if some members of the community go ahead and complain about access features which have been advised to be acceptable. More open processes of certification or consultation on certification may address some of these tensions.

As an aside, I understand that you discussed a number of issued relating to access on the first day of this Convention and that notice was given of the intention to work towards setting up an "Australian Institute on Accessible Environments".

It is vital that competent advice is available to those responsible for premises and services to achieve equitable access. That competency needs to extend beyond the ability to undertake access audits. An accessible environment involves establishing access to and linkages between buildings, information provision, transport systems and infrastructure.

I question whether any individual can achieve the necessary competency across all those areas. I welcome the idea of an Institute that may bring together those competencies. I look forward to being involved with other stakeholders in further discussions on this.

Conclusion

The more openly the Commission conducts its business on these issues, the less we will be open to the charge of simply "rounding up the usual suspects" like the policeman in "Casablanca".

The approaches I have discussed today open up an increased role for people with a disability, service providers, sector experts and their organisations, like ACROD. It could be, if not the beginning of a beautiful friendship, then the deepening and broadening of a beautiful working relationship. And maybe then we can prepare the Star Wars and Lord of the Rings speech on the triumph of good in the battle for human rights for people with a disability.