Deafness Forum Hearing Access Seminar

Deafness Forum Hearing Access Seminar

Bruce Maguire

Policy/project offier, HREOC

April 14, 2003

Good morning everyone. I begin by acknowledging the traditional owners of the land on which we are meeting today.

I always like to begin my presentations with a humorous anecdote or joke of some kind. For one thing, it lets me know that someone is actually listening, and it also lulls the audience into a false sense of security for the dry parts to follow. So as part of my preparation for this morning's discussion of disability discrimination law in Australia, I decided to find an answer to the important question, "how many audiologists does it take to change a lightbulb". Fortunately there is a website devoted to lightbulb jokes, and so I duly consulted it. I found a lot of valuable information:

How many bureaucrats does it take to change a lightbulb? Two: one to assure everyone that everything possible is being done, and the other to screw the bulb into the water tap by mistake.

How many fishermen does it take to change a lightbulb? Four: one to change it and the other three to tell you about the really big lightbulb that they would have changed only it got away.

And how many lawyers does it take to change a lightbulb? Well, how many can you afford.

But I'm sorry to say that there is absolutely no mention of how many audiologists it takes to change a lightbulb. So if any of you have the answer, please let me know over morning coffee,and I'llmake sure it is added to the website.

May I extend a warm welcome to Donna Sorkin on behalf of the Australian Human Rights and Equal Opportunity Commission. It is indeed a privilege to have someone of Donna's experience and insight with us today. As I listened to her oration, I was struck by just how many similarities there are between the issues that affect people with disabilities in Australia and the US. I couldn't help but remember, though, the comment by Winston Churchill, that America and Britain are "two great peoples divided by a common language." The disability field illustrates this very well. In Australia, we talk about people who are blind or vision-impaired, in the US, it's blind and visually-impaired; in the US, it's Hard of hearing", whereas in Australia, "hearing impaired" still seems to be the preferred term, and it's the one that I'll use today. It may be that the hearing-impaired community in Australia might want to re-evaluate the terms it prefers, and in that case, the Commission would, of course, adopt any changes.

By "Commission", I mean the organisation that is at present the Australian Human Rights and Equal Opportunity Commission (abbreviated to HREOC). I am a Policy and Project Officer within the Commission's Disability Rights Unit, and the main function of our unit is to promote the objectives of the Disability Discrimination Act.

The Disability Discrimination Act 1992 (DDA) is the key piece of Commonwealth legislation that relates to discrimination against 1.7 million Australians people who are deaf or hearing impaired. The DDA is one of a number of legal instruments relating to human rights that is administered by the Human Rights and Equal Opportunity Commission.

The DDA makes it unlawful to discriminate against a person on the grounds of a disability. The objects of the DDA include eliminating, as far as possible, discrimination against people with disabilities, and promoting recognition and acceptance within the community that people with a disability have the same fundamental rights as the rest of the community.

The DDA uses a broad definition of "disability" that includes:

• Physical
• Intellectual
• Psychiatric
• Sensory
• Neurological, and
• Learning disabilities, as well as
• Physical disfigurement, and
• The presence in the body of disease-causing organisms.

The DDA sets out specific areas in which it is unlawful to discriminate. These areas include access to premises, accommodation, education, employment the provision of goods, services and facilities, and the administration of Commonwealth laws and programmes. The definitions of "goods" and "services" in the DDA include financial and information services provided, for example, by banks and other financial institutions, retail shops, churches, cinemas, television stations, as well as services and equipment provided by telecommunications companies. An organisation such as a government department that provides services is also liable for complaint under the DDA if those services are not accessible to people with disabilities.

The DDA defines two kinds of discrimination: direct discrimination is when a person with a disability is treated less favourably because of that disability. An example would be if a university refused to allow a hearing-impaired student to enrol, or if a shop assistant refused to serve a person because they were deaf. Indirect discrimination refers to treatment that, on the face of it, is not discriminatory, but which has a disproportionate impact on people with a particular disability. An employer might require that job applicants have a driver's license, even though the job does not involve driving. Such a requirement would discriminate against people who are blind. Providing emergency service information only in audio form may also involve indirect discrimination, as it would not be accessible to many people who are deaf or hearing-impaired.

The DDA recognises that, in certain circumstances, providing equitable access for people with disabilities may cause "unjustifiable hardship" for an individual or organisation. I'llreturn to this in a moment.

Where a person with a disability believes they have been discriminated against, they can complain to the Commission, which will investigate the complaint and, where appropriate, attempt to conciliate a solution between the two parties. Where conciliation is not possible, the complainant may take their complaint to the Federal Court or Federal Magistrates Service, which have the authority to determine whether unlawful discrimination has occurred, and what constitutes "unjustifiable hardship". If the court concludes that removing discrimination would cause unjustifiable hardship, then the complaint is not upheld, that is, although there may be a finding of discrimination, there is no finding of unlawful discrimination. There are two points to note about this notion of unjustifiable hardship: firstly, it implies that removing discrimination may involve some justifiable hardship - it is not enough for an organisation defending a complaint of disability discrimination to say that removing discrimination will be hard. Rather, the question is when that hardship becomes unjustifiable, and the answer will depend on a number of factors that can be considered by the court. Secondly, the concept of unjustifiable hardship recognises that not all discrimination can be removed, and that the rights of people with a disability are part of a social matrix whose diverse and sometimes incompatible elements must be balanced.

Having said that, It is important to note that the defence of "unjustifiable hardship" is not available where a complaint relates to the administration of Commonwealth laws and programmes. This reflects the government's view that it has a particular responsibility to promote the objectives of the DDA and to eliminate discrimination against people with a disability. In the context of the current conference, this means that if a person who is deaf or has a hearing impairment lodges a complaint that alleges discrimination in the way a particular Commonwealth law or programme is administered, then the Commonwealth cannot claim unjustifiable hardship, and so if the complaint is upheld, it is obliged to take steps to eliminate the discrimination.

The DDA works mainly through the complaints mechanism that I have just outlined, but there are other important aspects of the legislation. For example, the DDA allows for the development of what are known as DDA standards, in certain specific areas, these areas being accommodation, education, employment, the administration of Commonwealth laws and programmes, transport and, most recently, access to premises. DDA standards provide much more specific information about what needs to be done to comply with the DDA in a particular area. Once a DDA standard comes into force, then contravening the standard amounts to a breach of the DDA itself; but, on the other hand, if an organisation is complying with a DDA standard, then they are deemed to be complying with the DDA in the area in question, and so a complaint cannot be successful. It is therefore important that DDA standards be developed with full consultation and consideration, and so far the process has been rather slow. Last October, the first DDA standard came into force, the Accessible Public Transport standard. It is hard to overestimate the long-term significance of this standard: over the next 20 years, people with a disability will find that public transport will become more and more accessible as a result of the biggest change to society in which the Commission has been involved. And the development of the transport standards was sparked by a DDA complaint made by an individual with a disability.

The Transport Standard contains a number of provisions that will have direct benefits to people who are hearing-impaired. For example, public address systems that are part of public transport services must comply with the Australian Standard AS1428.2 by including appropriate hearing augmentation. Information about public transport services must also be available to all passengers.

The Standard contains many detailed specifications, but there is also provision for transport providers to develop equivalent access solutions. This is an acknowledgement that making public transport fully accessible is an increasingly complex task, and that it may not always be possible to specify how it should be done in particular cases. If a transport provider needs to develop an equivalent access solution, then Section 33.4 of the Standard requires that consult with people with a disability or their representative organisations about any proposals for providing equivalent access. It is therefore important for self-help and advocacy organisations to become familiar with the Standard, and to discuss it so that they can provide input into further development.

At the moment, a lot of work is going into the development of a DDA standard dealing with access to premises. This will have important benefits for people who are deaf or hearing-impaired; as a first step in the development of this standard, the Building Code of Australia's access provisions have been extended, and they include, for example, requirements for hearing augmentation systems in public buildings. We also now have voluntary standards dealing with electronic banking services, including telephone banking. I don't have time this morning to go into detail about these; the key point is that it is in your interest as people with a disability to become familiar with them and use them as a tool for lobbying tool to make our society more accessible.

I would like, now, to return to the question that began this presentation, and rephrase it in a slightly different way: how many people who are deaf or hearing impaired does it take to change a lightbulb? Well, those of us who have hearing disabilities are a smart and resourceful lot, so obviously the answer is none, because we only buy lightbulbs that never need changing. Let me ask another question: how many advocates who are deaf or hearing-impaired does it take to use the DDA to change society? I'll answer that question by offering a few examples.

The Commission received a complaint from Dr John Byrne, a Deaf person from Western Australia. The complaint alleged that he was being discriminated against by cinemas because they did not provide captioned movies. The Commission established a forum involving industry and disability groups. The result was that in April 2001, Hoyts, Greater Union, and Village Cinemas, in cooperation with the Motion Picture Distributors Association of Australia, began showing first-release captioned movies in Australia. Dr Byrne was presented with the Australian Caption Centre's Roma Wood Community Award, and the WA Disability Services Commission awarded the Hoyts Cinema City in Perth a Small Business Action in the Private Sector Award. On April 2 this year, Parramatta Village Cinema showed its first-ever captioned movie, Harry Potter and the Chamber of Secrets. The schedule of captioned movies is steadily expanding. Not bad for one DDA complaint.

John Byrne was also one of a number of people who lodged DDA complaints about the lack of captioning of TV programmes. In November 1999, the Commission announced its intention to hold a public inquiry into this issue, because it had implications for all people who are deaf or hearing-impaired. If a TV programme isn't captioned for one person, then it won't be captioned for anyone else, and vice versa. The inquiry received a number of submissions, and resulted in the establishment of a forum involving the Commission, the broadcasting and television industry, and disability organisations. Work has been progressing since then, and we are now close to a conciliated agreement that would see a staged increase in the amount and range of TV captioning over the next five years: the amount of captioning would increase to 55% by the end of 2005, and 70% by the end of 2007. The industry feel that they need protection from DDA complaints while this agreement is being implemented, and so they have lodged an application with the Commission for what is known as a Temporary Exemption under the DDA. This doesn't mean that industry wants to avoid its responsibility to eliminate discrimination; what it means is that industry will work towards meeting its responsibilities but that while it is doing so, it will be free from DDA complaints on the question of captioning. The Commission does not automatically grant an exemption application; we invite submissions from interested individuals and organisations to assist us in making a decision, and we only grant such applications where we are satisfied that the organisation making the application is working towards meeting its responsibilities under the DDA - in this case, the agreement that I have just mentioned. The exemption application from the broadcast industry is now available on our website, and I urge you all to look at it and consider making a submission. I do want to stress that the exemption application is a part of the industry's strategy for meeting its responsibilities under the DDA, and we believe that it will be supported by the Australian Association of the Deaf (AAD) and Deafness Forum Australia, both of whom have been ivery much involved in the ongoing discussions about TV captioning.

There have been a variety of other DDA complaints lodged by people who are deaf or hearing-impaired. In one case, a person was awarded $1,000 damages because a caravan park refused to allow entry of his hearing dog. In another case, A man with a hearing impairment complained that he had been discriminated against by being refused an interview for a window cleaning job. The employer

had been concerned about the man's ability to fulfil safety requirements. The complaint was settled with an apology, payment of $2000 compensation, and

an undertaking to develop policies to ensure that the situation did not occur again.

So, you can see from these examples that it only takes one or a small number of people to use the DDA effectively to bring about change. But Advocates and lightbulbs have one thing in common: they can both burn out. While it is true that one person can make a big difference, the best way of building on the achievements of individual advocacy is to have self-help and peer-support organisations who can energise and encourage their members, establish goals and priorities for the community they represent, and provide learning and mentoring opportunities for new and potential members. Libby Harricks, whose dynamic leadership and notable achievements we are commemorating today, understood this need very well, and she articulated a vision of a barrier-free society for people with a hearing impairment. Consumer organisations have a vital role to play in helping to remove these barriers. One important contribution they can make is by providing the Commission with input when we undertake a detailed inquiry into a particular issue. Late last year, the Commission appointed a consultant to prepare a discussion paper dealing with access to telecommunications for people with a disability, including people who are deaf or hearing-impaired. Work on preparing the paper is nearing completion, and we hope to launch it in the next month or so. The paper will allow us to decide how best the Commission can contribute to progress in this area. The input we have received from a range of disability groups, including Deafness Forum Australia, has been invaluable in the preparation of the discussion paper.

This year marks the 10th anniversary of the DDA, and as part of our celebration of this historic event, the Commission has produced a publication that showcases the progress that has been made through use of the DDA on an individual and systemic level. But there is much more that could be done. By and large, the DDA is only effective if people are prepared to use it by lodging complaints. Sometimes people are reluctant to use the DDA because they think complaining is the same as whingeing, and that people with a disability should just accept things the way they are. I know that Libby Harricks didn't see it this way, and those who seek to preserve her memory and build on her achievements should be inspired by her example.

Discrimination against people who are deaf or hearing-impaired can be eliminated; society, like that lightbulb, can be changed. We in the Commission's Disability Rights Unit are always available to discuss the DDA and how you and your organisations can use it effectively. But remember: the DDA is not the government's Act; it is not the Commission's Act; it is your Act. We don't change a lightbulb by just looking at it, or hoping that it might decide to change itself some day. Someone has to change it. Discrimination against people with a disability exists; it doesn't have to exist, and if individuals and organisations representing people with a disability can, with confidence, courage and conviction, change it.