The DDA 20 Years On: Successes, Lessons and Future Directions (2012)

The DDA 20 Years On: Successes, Lessons and Future Directions

3rd Annual National Disability Summit
Paving a future direction for disability policy reform in Australia
Melbourne 27 June 2012

Graeme Innes
Disability Discrimination Commissioner

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I acknowledge the traditional owners of the land on which we meet.

At this Summit in 2010, I talked about the crucial roles of a National Disability Insurance Scheme. They were in moving to a society that respects, protects, promotes and fulfils human rights for people with disability.  I used the title Money Changes Everything - But What's Insurance Got to Do with It?

I couldn't think of a suitable song in 2011. Perhaps it was a mistake to use up two song titles the year before. So I talked about the role of an NDIS in Changing the disability rights climate, and speeding up the glacial pace of change towards an inclusive society.

At this year's Summit, my title - The DDA 20 Years On: Successes, Lessons and Future Directions - is almost alone in not referring to the NDIS. So, have I changed my mind about the NDIS being the most significant part of the disability rights policy landscape? No.

If you were at school back in the 70s like me, you may have spent time wearing a denim jacket, and listening to Status Quo. They were touring Australia back when an Australian government, led by Gough Whitlam,  first considered introducing a no-fault insurance scheme. They're still going: one tour a couple of years ago was titled "Famous in the last century".  Recently an interviewer pointed out to them that their work over the years displayed a remarkable thematic unity: or, putting it more bluntly, that whatever the title, it all sounded the same. "Course it does, it's a Status Quo album, innit", they replied. "It's gotta do what it says on the tin".

So, likewise, it's mostly my title today that has changed, more than my theme. I will talk again today about the NDIS in changing Australian society for the better. And I'll make some suggestions of how the NDIS legislation could be framed to increase that change. But I'll start with the DDA, and I'll also get back to it before the end.

Famous last century

It's important to recall that the origins of the DDA came not from the law and justice area of government, but from the department we now call FaHCSIA, and its Minister Brian Howe. I also note that, like the NDIS now, the DDA had bipartisan backing. 

The DDA was not conceived solely as a means of providing redress for individual instances of discrimination, important as that is, but as part of a strategy to increase economic and social participation and opportunity for people with disability. The DDA, of course, has broader coverage than employment, because Government quickly accepted advice - from the human rights commission, and from the disability community, as well as from a bloke called Innes who was chair of their disability advisory council back then - that in order to achieve change in employment outcomes, broader social change would be needed, including in areas like education, transport and communications.

So, how have we gone so far? Well, one of the big issues to acknowledge is that we don't know the answer to that question anywhere near well enough.

We do have some areas of definite achievement:

• Public transport: Despite some continuing problem areas, the overall picture on transport is very positive, with implementation of Disability Standards for Accessible Public Transport very well advanced.
• Telecommunications: One of the earliest systemic results achieved under the DDA was the inclusion of disability access within the standard telephone service.
• Access to premises: Upgraded and harmonised access standards under the DDA, and the building code of Australia, took a long time to negotiate. But the results are now flowing in hundreds of thousands of building and development decisions.
• Information access: There have been some major achievements on information access. One example is a series of increases in TV captioning which were achieved under the DDA now being wrapped up in legislation passed on Monday this week. It lays down a timetable towards 100% captioning within mainstream television regulation.

There's much less evidence of progress in lots of other areas however. Firstly, some of that is because there are important areas the DDA doesn't clearly address. Things like, people with intellectual or psychiatric disability having an inadequate range of choices of services and accommodation options, and being forced to accept choices made for them. Obviously we would hope that the NDIS can make a difference to all that.

Secondly, some of it is because, in the areas the DDA does clearly address, resources for evaluation, monitoring and accountability are very hard to come by. As I have said before, the Human Rights Commission's disability policy staff consist of myself plus three other people. Not a large team to deal with human rights issues nationwide.

Thirdly, however, there are areas where not much progress is occurring. This is true in particular, in the area of employment, which was the initial motivation of the DDA, and which is the largest area of complaints under the DDA.

Earlier this month, the COAG Reform Council released its 2010-11 report assessing progress under the National Disability Agreement. It told us what we already know.

The four million Australians with disability - about the population of Melbourne - and the further 2.6 million Australians who care for family members with disability - altogether that's more than the population of Victoria - are among the most disadvantaged groups in Australian society.

Almost half the people with disability in Australia lives in poverty or near poverty. Median gross weekly income for people with disability aged over 15 years was about half the median earnings of people without disability. 2009 figures show people with disability getting just $309 a week on average, compared to $614 for people without disability.

Poverty is a cause, as well as a consequence, of lack of equal participation and opportunity in employment.

Labour force participation rates for people with disability remain significantly lower than for people without disability, and have not improved since 2003. Unemployment rates remain significantly higher.

Also, for many people with disability the participation costs are much greater: costs of personal care and support to get up and out the door; higher transport costs because we don't yet have fully accessible public transport; costs of various aids and appliances, and so on.

These issues also flow into participation in education and training, which would allow people to participate in, and contribute to, the community to the fullest of their ability, including in employment.

Beyond education and training, poverty also limits social participation and interaction for many people with disability. As pointed out by the Productivity Commission, there are people with disability, today in Australia, who have to wear a nappy, and get no significant social interaction in a three month period, because of lack of resources to meet reasonable personal care needs.

All these issues, of course, also affect carers. Labour force participation rates are lower- In 2009, for carers it was 68.9%), and for primary carers just 53.6%, compared to 79.4% for non-carers.

It's pleasing to see increased recognition of what big economic opportunities are presented if we can do better on these numbers. Last month the Australian Network on Disability, Australia's lead employer organisation on disability, issued a report estimating a $43 billion increase in Australia's GDP from reducing the employment participation gap even by one third. The report notes that closing this gap by one-third is an achievable - even a conservative - target, given that many nations, including New Zealand, have already achieved or surpassed these benchmarks.

AND's report reinforces the conclusion of the Productivity Commission: that increased employment participation from improved support, and reduced barriers, will easily pay for the costs of the National Disability Insurance Scheme.  I hope that for this reason we'll see business and employer organisations continue their very welcome support for governments establishing and funding the NDIS.

Clearly the NDIS, and the National Disability Strategy, have the potential to improve the outcomes reported on, and to fundamentally change the lives of people with disability, their families and carers.

But what contribution can the NDIA, and governments more broadly, make to this unemployment challenge. To put it bluntly, governments in general, and the NDIA in particular, need to eat their own dog food.

Governments can not continue to try to sell to the private sector the benefits of employing people with disability, and not do it themselves. The drop in the employment levels in the Commonwealth public service in the last fifteen years- from 6.5 percent to 3 percent - can only be described as shameful. Governments need to set a much better example. Its time for quotas or targets, being seriously discussed - I note - in the private sector.

But let me focus today on the issue of employment of people with disability within the National Disability Insurance Agency itself, and organisations delivering services on its behalf. I have been opposed to quotas for employment of people with disabilities for most of my life, but I have changed my mind. We are so far behind on employment of people with disability that the only way to redress the balance is to set some quotas or targets. There is a very strong case for the National Disability Insurance Agency to take a lead in this area.

Obviously, questions will be raised about how this approach fits with the merit principle. We do need to ask, though - merit defined how, and merit to do what?

It's clear that arguments in favour of a diverse workforce, that includes strong representation of people with disability, apply with particular force in the context of organisations working to implement an NDIS. In particular, lived experience of disability brings with it practical experience of the systems and services we have now, of what works well and what doesn't work so well.

To avoid unproductive dispute about the relationship between merit and targeting people with disability in employment, it would be appropriate for the legislation for the NDIS to reflect the approach I have outlined here. Let's have the new NDIA set the example of what people with disability can do when we are given a chance.

Review mechanisms

Let me talk about another key facet which the NDIS needs to contain. Scheme governance arrangements must include effective mechanisms for review of scheme funding and eligibility decisions, including independent merits review. This is critical in ensuring that everyone can have confidence in decisions around eligibility and allocation of resources.

Effective review is critical in ensuring confidence for people with disability and their families that eligibility and funding is not unfairly or inappropriately restricted,  including perhaps by systems or processes that don't fully comprehend the impact of a person's disability, and their circumstances, or the positive impact that funding of some services could have in promoting independence and participation. This could be a particular issue in the early stages of the scheme, as we move beyond pre-existing models of services and funding.

But effective review will also be key to ensuring that the scheme can make robust decisions, including saying no when required. In turn, that is a key element in building a scheme which has, and maintains, public and political support.

It's a familiar principle, both in public administration and in business management, that accountability and review mechanisms don't just serve the interests of people seeking to have their own rights upheld. They provide critical feedback mechanisms for promoting good administration and policy development.

Thirdly, if independent review mechanisms are not established in the scheme legislation, they will inevitably occur - probably much less efficiently and at much greater  cost- in the courts.

So we need strong and early attention to complaint and review procedures as a critical part of the scheme.

Procurement roles

Another set of opportunities for leadership by the NDIS present themselves in the area of procurement. I've noted before that under the Convention on the Rights of Persons with Disabilities Australia has obligations to promote research, development and availability at the least cost of enabling technologies, assistive devices, universally designed goods, services, equipment and facilities, and to promote universal design in standards and guidelines. It should be obvious that agencies administering an NDIS will have a very strong financial interest in seeing these obligations implemented. So will governments more generally. And of course, so will people with disability.

There are clear benefits in taking measures to ensure that accessibility features are built into universally designed goods, services, equipment and facilities, instead of people with disability needing to be served by specialised, segmented and thus inevitably less competitive and more expensive markets.

So there is a direct financial reason for the National Disability Insurance Agency to use its purchasing power to insist on universal design to the greatest extent possible in its procurement decisions. This applies both for the organisation itself, and for purchases it is funding.

As with targeting, independent review  and employment, it would be appropriate for this to be reinforced in the statutory underpinnings of the NDIS. This approach could be implemented by the NDIA setting standards for its own procurement decisions. A major opportunity for leadership in this respect is presented by the procurement program on information and communications technology for which funding was announced in the Budget. Obviously I am talking here both about accessibility of technology to people with disabilities as customers, and as employees.

But as well as this direct purchasing role, a broader social impact might be obtained by ensuring that the NDIA also has capacity to develop, or sponsor or participate in developing, more broadly applicable standards.

Other Convention implementation roles

Once more, I want to emphasise that the statutory underpinnings of a National Disability Insurance Scheme should provide for functions and capacities addressing obligations under the Convention on the Rights of Persons with Disabilities.

I've talked already about some of those roles, regarding procurement and promoting development of standards.

And at previous Summits I've compared possible roles for an NDIA with roles of transport and workplace accident and insurance authorities on other issues addressed by the Convention, such as promotion of research on new technologies, and promoting awareness and positive attitudes. I've also talked about roles in research and data collection, to improve accountability and deliver on disability rights, and to enable continual policy improvement.

As the Productivity Commission pointed out, funding needed for these sorts of roles is very, very small, when compared to the total, or the additional, funding needed for support for individuals: a few tens of millions of dollars compared to billions. This shouldn't even rate as small change in the context of an economy with GDP approaching two trillion dollars.

But in the world of disability rights in Australia right now, it would represent a huge difference.

Advocacy

I've said on earlier occasions that one of the major ways that the NDIS can perform its intended social change role is if the framework for the scheme ensures that scheme funds can be spent both on individual and systemic advocacy. In particular I'm talking about advocacy using discrimination law. I've argued for some years now that federal discrimination law should provide the Disability Discrimination Commissioner (or the Commission more generally) with the capacity to take appropriate cases to court in his or her own right. This would provide a fairer and more effective and efficient means of achieving large scale change and large scale resolution of issues - preferably through negotiated settlements, but by court decisions where necessary - rather than relying solely on disadvantaged people making individual complaints.

Other people have argued that this proposal faces two sets of potential problems - its possible effect on perceptions about the Commission's own impartiality in handling complaints, and the fact that the Commission's resources are quite limited. Neither set of problems applies to such a role for a National Disability Insurance Agency.

A national disability insurance scheme should include the insurance law principle of subrogation. Instead of individuals or families deciding whether to risk incurring court costs, perhaps risking their houses, and deciding that they cannot afford the risk, you could have insurers doing what it's their business to do: managing risk; and making decisions about whether to pursue a matter purely on the basis of its merits, and prospects of success - and having the resources for all the legal firepower required if it does come to litigation. Of course, this in turn might often help in getting other parties to the table to negotiate solutions. This is a function which needs to be included up front in the NDIS legislation if we are to see the NDIS have its maximum impact. It would reduce the cost of delivering individual services, because the environment would be more accessible. And more importantly, it would move people with disability closer to that substantive equality for which all of us here strive.

Conclusion

The DDA itself was a famous achievement last century. For the most part the DDA has worn quite well, like an old guitar, even if in a few areas it is showing its age, and needs a tune up. But what is really needed to get things moving is to plug the DDA into a big new power source. That's what the NDIS can be if we design it properly. And that's what we need. Because in disability rights in Australia, no one thinks another 20 years of the status quo is what we want.