The elimination of disability discrimination in Australia
Disability Rights
The elimination of disability
discrimination in Australia
|
Graeme Innes AM |
 |
The Disability Discrimination Act was passed by the Federal Parliament
eight years ago, in November 1992. The leading object of the Act was clearly
stated: "to eliminate, as far as possible, discrimination against persons
on the ground of disability" - and to do this in areas of life from employment
and education to access to premises and services.
Very few laws achieve their objects automatically or overnight just by
being passed. Certainly no one involved in developing or passing the DDA
thought that eliminating disability discrimination was so easy that it
would happen just by passing an Act saying discrimination is unlawful.
That's why, of course, the Act contains various implementation and enforcement
mechanisms:
- Provision for complaints to be made, and resolved if possible by conciliation
but if necessary by enforceable decision - Provision for standards to be set to define what is required to eliminate
discrimination and, in some cases, how long it is allowed to take - Provision for temporary exemptions to encourage and assist the transition
from a discriminatory present to a non-discriminatory future - A promotional role for HREOC to ensure that people with rights and
responsibilities under the legislation knew about those rights and responsibilities
and what they meant.
Eight years is more than enough time for us to ask and answer some questions
about the achievement of these objects and the effectiveness of these
mechanisms.
Has disability discrimination in Australia been completely eliminated
in that time? The answer - no, it has not - is obvious to everyone in
this audience. Discrimination, whether it is overt and attitudinal, or
built into physical structures, or built into information and communications
systems, or built into rules and just "the way things are", remains a
daily experience for many if not all people with a disability in Australia.
People with a disability still frequently encounter places we cannot go,
opportunities we cannot take fully or equally take advantage of, or activities
we cannot fully participate in or contribute our skills or ideas or energy
to: not because of inherent limitations imposed by our disability, but
because of discriminatory barriers which have not been eliminated since
1992, or even barriers which have been put in place since then.
Have we at least, then, passed the more limited and pragmatic test set
by the legislation, of eliminating discrimination "as far as possible"?
Here the answers might be a little less clear cut, because what is "possible"
for the purposes of the DDA depends in some cases on issues for judgment,
like where the limits are of reasonableness and unjustifiable hardship.
What is " possible" in practice will also change over time with changes
in technology and changes in knowledge, and with possibilities for replacement
of inaccessible features of the world with accessible features, given
appropriate time or money or both. But I think two things should be clear.
First, we have made substantial progress over the last eight years in
eliminating or reducing discrimination in some respects. Second, though,
this progress has been very patchy, and it is "possible" to go far further
in eliminating disability discrimination, even with existing knowledge
and technology, than we have gone so far.
I want to talk today not just about what has been achieved and what remains
to do but about what approaches we are taking or should be taking to achieve
the object of eliminating discrimination. I want to talk about areas where
we have achieved substantial progress, both because I think we all sometimes
need an antidote to frustration or defeatism, and because looking at how
progress on some issues has been achieved may help in thinking about how
to move forward on other issues. I also want to talk about areas where
less results have been achieved:
- in the interests of accountability for HREOC's important roles in
implementing the DDA and - as a starting point for discussion of what more effective actions
or strategies HREOC, the government and Parliament, the disability community
and industry should be undertaking or at least considering to achieve
elimination of disability discrimination.
Let me start with an area which ought to be recognized as one where there
has been very large scale success, not perhaps in terms of a finished
result but certainly in terms of progress achieved and a way forward laid
out. Lack of public transport accessibility has been consistently identified
for many years as one of the major barriers to equal participation by
people with disabilities in economic and social life, including the crucial
areas of education and employment.
Some of you may be aware that the DDA was originally proposed as employment
discrimination legislation. HREOC and the former Disability Advisory Council
of Australia, among other organisations, insisted successfully that more
general anti discrimination law was required, for reasons including that
addressing issues such as access to transport was an essential part of
achieving effective equal opportunity in employment.
Last month, after a long process some of us had begun to fear we would
never see finished, Federal Cabinet approved adoption of disability standards
on accessible public transport. These standards are expected to be put
to the Parliament for authorization early in 2001. Cabinet approved the
standards essentially as they were negotiated between governments, industry
and community in 1995-96, but with some modifications reflecting the results
of the long running Regulation Impact Statement process. These modifications,
in brief, involve
- extension of the timetable for full compliance for rail and trams
to 30 years instead of 20; - adjustment of the compliance requirement at the 15 year point for
buses to 80 percent instead of 90 percent of fleets; - exclusion from the standards of a number of issues including school
buses and small aircraft so that these issues remain covered by the
existing provisions of the DDA; and - amendment of the DDA to extend HREOC's existing power to grant temporary
exemptions from provisions of the DDA to include granting temporary
exemptions from Standards.
HREOC has gone on the record stating that it sees this decision as a
great advance for the achievement of the objects of the DDA and congratulating
the Government and particularly the Attorney-General and his Department
for getting the process to this point. We are strongly in favour of moving
forward to adopt the Standards on the basis of the Cabinet decision, and
not in favour of seeking to re-open any of the details of the package
at the risk of further delaying or derailing the process.
A number of major disability organisations have come out with a similar
view. Certainly this is the view which has emerged from statements by
PDCA's Maurice Corcoran, who with Angus Downie and Elizabeth Hastings
played such a major part in the initiation of the transport standards
process and with those same people plus Margo Hodge and Kevin Murfit provided
such strong disability input during the processes of negotiation and drafting.
I know, though, that there are other points of view held by some people
in the community. Some of these go so far as to say that the Standards
should be rejected - on the basis that the Standards would postpone rights
to accessible transport for too long and that accessibility can be achieved
more quickly, or is being achieved more quickly, using the existing provisions
of the DDA and equivalent provisions of State and Territory legislation
- or using other strategies such as writing petitions or lying down in
front of transport vehicles.
People are of course entitled to their own opinions and strategies. But
since I have been invited today you are also entitled to my opinion and
to such information as I can share with you. My opinion is that we should
recognise a victory when we see one.
The key compliance requirement in the Standards, so far as buses, coaches,
trains, trams, ferries and larger aircraft is concerned, remains unchanged:
all vehicles and vessels newly entering public transport service in Australia
will have to be accessible. For many operators, this requirement, combined
with normal fleet replacement schedules, will mean 100% accessible fleets
well before the 20 year point. Most public sector bus operators, in particular,
have been applying the draft Standards as de facto standards for several
years, and several appear to have reached over 20 percent accessibility
already through fleet replacement.
Melbourne's tram operators also committed last year to accessibility
of all new trams, in the course of HREOC's exemption process, and to accelerating
their acquisition substantially from what they had previously planned.
Although this will lead to fleet replacement over 27 rather than 20 years
due to the long lives of the vehicles concerned, it also means accessible
trams will start rolling in Melbourne from next year, and infrastructure
changes to match them are happening now.
A number of parties who had been seeking to have the Administrative Appeals
Tribunal overturn HREOC's decision on the Melbourne Trams exemption have
now moved to withdraw their appeal in the light of the decision on standards.
Obviously we think that is a positive move - not least because we would
prefer money to be spent on implementing accessible transport rather than
on litigation.
Premises like railway stations have even longer lives than trams or trains,
of course, and cannot be expected to become accessible through natural
processes of replacement without extensive retrofitting and upgrading
programs. Although there is still a long way to go, in my view progress
in this aspect of transport access is a major area of success - just because
there is nothing easy or technologically inevitable about it.
For example, Sydney's CityRail, with far more stations and more expense
to deal with than any other operator, has already left far behind its
mid 1990s view that 30 accessible stations out of 300 would be sufficient.
On current plans they will exceed the first five year, 25% accessibility
target in the Standards by a considerable margin.
But, the argument goes, since much is being achieved without the Standards
being in force, with some operators already being at or near the first
five year compliance point at least so far as physical access is concerned,
what is the gain in authorizing the Standards and taking away the rights
to try to get a better deal through the existing legislative provisions?
Part of the answer is that a number of operators have shown that they
are more prepared to invest large amounts of money and effort in accessible
fleets and facilities, if they can have some certainty that they will
not still have to defend discrimination complaints seeking more rapid
implementation of accessibility. The fact that businesses with large investments
at stake are frequently prepared to do more in exchange for certainty
than they have been able to be compelled to do by the threat of complaints
does not seem to be as widely recognized as it might be.
In the Melbourne Trams case, a key factor in securing the decision to
replace a fleet which otherwise might have continued into the indefinite
future with accessible new vehicles, was the privatization process and
the interest of potential buyers in knowing whether they were buying a
tram fleet with a predictable service life, or what might be so much scrap
metal if HREOC or the Federal Court or their state equivalents so decided.
A number of operators have also made it very clear that their implementation
of accessibility will be more rapid if they are able to decide for themselves
where new vehicles or upgrading of premises should be applied first, rather
than this being decided for them by HREOC or its State and Territory equivalents
in response to the pattern of complaints which happen to come forward.
One of the effects of the Standards, of course will be that everyone,
consumers and operators alike, will be able to proceed on the clear basis
that the DDA is concerned only with whether an operator is making the
necessary progress in achieving accessibility: not with deciding that
consumers in one place should get priority over consumers in another place
(or perhaps vice versa according to who complains first) . I have to point
out, for those who have not already recognised it, that this was exactly
the point we made in granting the Olympic Roads and Transport Authority
exemption.
With the likely entry into force of Standards in the near future, the
exemption process will not have the same scope and importance for transport
issues as if the Standards had been further delayed. The Standards will
be able to do most of the work of defining what is required to eliminate
discrimination and how long it is allowed to take. The exemption process
will however remain relevant for those transport issues excluded from
the standards, and within the standards in particular circumstances where
strict compliance with the terms or timetable of the standards may not
be possible, but where granting an exemption to permit another approach
or timetable would promote the objects of the DDA.
The need for accountability, openness and fullest possible participation
in decisions having a wide impact under the DDA, led HREOC some years
ago to adopt a policy on exemption applications under which we publish
a notice of inquiry, seek public submissions, and in some cases make a
proposed decision available for comment. More recently , use of the Internet
has allowed us to reach a much wider public with these processes than
we could before, and to publish submissions we receive rather than people
only having access to HREOC's own view.
As most of you would be aware from the ORTA exemption process, we cannot
and will not promise to follow any particular views or set of views we
receive in submissions - we are bound by law to make our own decision
on the merits and in accordance with the objects of the legislation. But
our decision making does depend heavily on the input we receive - as can
be seen by looking at our decisions on small aircraft, refusing an application
from the Regional Airlines Association but granting an application by
Kendell Airlines.
In the context of the transport Standards, some options are being discussed
for reinforcing as a matter of law the open and consultative approach
which we take to exemption applications now as a matter of policy.
We have also begun applying a more open and consultative approach to
HREOC's complaint investigation function, in selected cases, where the
complaint involves broad public policy issues and where open investigation
can be conducted consistently with privacy requirements. As with the exemptions
process, this works mainly using the internet, to issue a notice of inquiry,
seek and publish submissions, and publish a report or decision.
However, where appropriate and as resources permit, the process can also
include a face to face public forum or hearing. For example the captioned
movies inquiry has consisted of several meetings of a public forum involving
each of the major movie exhibitors, disability community representatives
and HREOC. This process led to an agreed trial of open captioning in selected
cities for a number of films. Without being premature I can say that as
a result of this process there are excellent prospects for captioning
to be extended more broadly on a more permanent basis.
The public inquiry we conducted arising out of an individual complaint
on access to local government elections in Newcastle has produced broader
outcomes in my view than all previous electoral complaints under the DDA
put together, precisely because of the public nature of the process. The
inquiry resulted in establishment by the Australian Electoral Council
- of which all Electoral Commissions are members - of a committee, including
the Commission and community representation, to develop a standard definition
for access, and set benchmarks for its achievement over a period of years.
Of course, continuing openness and accountability in this process will
be critical in achieving improved access in practice and in ensuring that
all access issues - whether for people with physical or sensory or other
disabilities - are appropriately considered.
The inquiry we conducted into complaints regarding interference with
hearing aids from digital mobile phones has likewise provided a forum
for exchange of community and industry views about better access to solutions
and for clarifying the responsibilities of service providers and mobile
phone suppliers. As a result of this, and assisted by the Commission's
report on the inquiry, settlement negotiations on these complaints are
now progressing well.
The public inquiry process has several benefits:
- It enables broad community participation in discussion of important
policy issues raised in the context of complaints rather than whichever
individual or organisation happens to be the complainant having to take
all the running; - It reduces the risk of a complainant potentially accepting a less
than adequate resolution which affects the community more broadly because
of a lack of knowledge of other options or a lack of support and resources - In some cases it may enhance the prospects for agreed resolution
of complaints by providing the parties to the complaint with a wider
range of information, perspectives and options than they would otherwise
have had available - It secures more publicity both for discrimination issues and for
positive outcomes than the more usual confidential complaint handling
process generally does: bearing in mind that the leading object of the
DDA is the elimination of discrimination, rather than the resolution
of particular complaints - In some cases, just discussing a draft notice of public inquiry with
the parties may help to clarify the issues and move matters towards
resolution.
I am not for a minute questioning the appropriateness of confidential processes
where sensitive issues of personal information are involved. But there is
not much personal and sensitive information, after all, in whether transport
or telecommunications systems or public buildings are accessible: and these
issues always have a wider impact than for the particular complainant and
respondent alone.
I mention this initiative again today because I do not think it has yet
had as much attention from the community as perhaps it should. We have
had several submissions from peak organisations welcoming the opportunity
provided by this approach for broader participation in discussion of important
issues, in the context for example of our complaint based inquiries into
captioned movies and into electoral access. We have also seen some comments
criticising HREOC for not having conducted one of these processes years
ago. I guess we can also take that as a form of support.
What we have not seen though is much evidence of many disability organisations
actively building this process into their own agendas for using the DDA;
or any evidence at all of anyone seeking to have State and Territory discrimination
authorities consider similar approaches.
The message I want to give is that this type of process is a significant
departure from the standard methods of Australian anti-discrimination
agencies, and that if people see something positive in this initiative
and want it continued or expanded, they need to say so more clearly and
more often and in particular need to make clear their preferences about
how their own complaints should be handled.
One of the catalysts for the development in 1998-99 of the public inquiry
initiative on complaints was the knowledge that with legislative amendments
taking effect in April 2000 we would lose the function of conducting hearings
on matters which were referred to the Commission as a tribunal because
they could not be conciliated. These matters, and complaints terminated
for other reasons including that the Commission thinks no unlawful act
has occurred, can now be taken to the Federal Court instead and heard
either by the Court or the new Federal Magistrates Court.
The hearing function allowed the Commission to contribute to the development
of the law. In a number of important cases, the public nature of hearings
as compared to the usual complaint investigation and conciliation processes
was very important in generating public and media attention for disability
discrimination issues. I'm thinking for example of Sir Ron Wilson's decision
in the Scott v Telstra case about access to TTYs, and of course the Finney
case, which I had something to do with as hearing commissioner.
I see public inquiries at the earlier, investigation stage in appropriate
cases as potentially performing some of the same functions.
The legislation removing the post-referral, tribunal hearing function
from HREOC was not the Commission's idea, but it is something we had to
live with in the wake of the High Court's decision, in Brandy v Bell,
that in making the Commission's decisions enforceable the previous legislation
conferred judicial power on the Commission, which not being a court is
not allowed under the Constitution. The result was that we were left with
the Commission making decisions which were not legally binding - so that
if a respondent such as SOCOG in Bruce Maguire's website accessibility
complaint decided to ignore HREOC's ruling, the complainant would have
to start all over again in the Court.
The government decided in these circumstances that if complaints were
not resolved by HREOC's investigation and conciliation processes they
should be able to go straight to the court, without an unenforceable hearing
process in between. I know that there has been widespread concern that
this legislation would in effect mean the "death of the DDA", with the
court process and in particular the prospect of costs against unsuccessful
complainants being seen as too daunting.
I have argued before that the DDA would only be dead if the disability
community and its representatives acted as if it were dead. After all,
it is not as if the Commission's own procedures had always worked instantly
or exactly how complainants would have liked in all cases.
But I must admit that until cases started to come through under the new
procedures, how they would operate was to some extent unknown territory.
Those of you who follow our web site or have subscribed to our email list
will know that decisions under the new procedures have started coming
out of the Federal Court and the Federal Magistrates Court in the last
few weeks. I think the cases so far give very encouraging signs on several
issues.
First, although it is too early to make any detailed comparison, the
cases so far do not show the Court being any slower than the Commission
in getting cases heard or decided.
Second, the cases so far certainly do not show the judges or federal
magistrates taking any narrower view than the Commission on critical issues
of interpretation, either on issues of procedure (such as what can be
regarded as included in the "complaint") or on substantive issues, such
as whether a condition or requirement has been imposed and whether the
complainant was able to comply with it, for indirect discrimination purposes.
Third, the comments in the cases of Low v Australian Tax Office and Tate
v Rafin and Wollongong Cricket Club, where the complaints were dismissed
but the courts decided that costs should not be awarded against the complainant,
should be interesting to people concerned about the costs issue. In the
first case, costs were not awarded because the complaint was at an early
stage. In the second whilst the complainant lost he was seen as having
a case with some merit. The "We'll all be rooned, said Hanrahan"
prophecy is not coming to pass.
Fourth, in the other two cases so far which have reached final decision
the complainants have received legally binding orders in their favour
for payment of $1000 and $3000 damages - and as I noted a moment ago the
inability of the Commission as a non-judicial body to make binding orders
of this kind was the major reason for the change in the legislation.
Obviously it is still very early days for the new procedure, but it does
not sound to me as if the complaints procedure under the DDA is quite
dead yet.
Exemption applications and complaints are not the only means by which
HREOC can commence an inquiry on an issue. The Commission can decide to
conduct an inquiry on its own initiative. I have to say, though, that
there would need to be very strong reasons to commence such an inquiry.
Our experience where the Commission has conducted an inquiry without it
being in response to demand through a complaint or an exemption application
has been that organisations "on the receiving end" are quick to raise
some obvious questions: questions such as
- Why is the Commission taking up this issue now?
- How can the Commission state that this is an appropriate issue for
public inquiry if it does not have any individuals or organisations
on the books as complainants prepared to publicly state their support
for an open inquiry? - Where exactly in the legislation is the Commission's power to conduct
inquiries at large, compared to its specific power to investigate complaints? - What is the point of a general inquiry which can only result in a
report compared to an inquiry on a complaint or exemption application
which can result in meaningful decisions?
Answers can be given to each of these questions, and the Commission will
embark on a more general inquiry where convinced it is necessary to do so
- like the general inquiry on captioning we conducted prior to receiving
specific complaints on television captioning.
The Commission can also decide to commence an inquiry when it is given
a reference by the Attorney-General to do so, such as the reference we
received in 1999 on access to ecommerce and other new service and information
technologies for people with disabilities and older people, on which our
report was published in June this year. It is fair to say that this inquiry
was more resource intensive for HREOC than the complaint based inquiries
so far have been, mainly because of additional efforts required to secure
appropriate engagement by interested parties. The fact that HREOC is preparing
a report which will be tabled in Parliament at some point does not always
focus the mind as much as the fact that a decision is about to be made
in a matter of weeks on a complaint or an exemption application.
Having said this, some very good outcomes and processes have come out
of the ecommerce inquiry. There has been progress in internet accessibility
policy, notably from the Commonwealth government itself, as well as the
inquiry having assisted with achieving copyright reforms which will mean
among other things that students who need material in digital form should
no longer have to put up with waiting months longer than their classmates.
Of particular importance to this audience is that a joint working party
with the Australian Bankers Association, HREOC, and community representatives
has agreed to work to develop standards for accessibility of automatic
teller machines, and I hope that more progress in this initiative will
be able to be announced in the near future.
I want to turn now to education, an area of huge significance but where
the picture is not so positive. As I have already mentioned, I have been
involved as Hearing Commissioner in one of the most highly publicized
cases about nondiscriminatory access to education, Scarlett Finney's case,
as well as other DDA cases. Naturally I think that the Commission, constituted
by me, did the best job it could in those cases in the circumstances.
I have also been pleased by the amount of public attention the Finney
case received, in promoting to the public both the existence of rights
and responsibilities under the DDA, and the importance of these rights
and responsibilities in the lives of real people.
But that does not mean I am at all satisfied that we are making adequate
progress in eliminating discrimination in education, or that we have adequate
processes in place to deal with or prevent discrimination. By the time
a judicial or tribunal system gets to deal with and finalise a complaint
of discrimination in education, an immense amount of damage has already
been done: often years during which a student may not have had equal access,
or perhaps any access, to education, and during which immense damage may
also have occurred to relationships within an educational community.
The limitations of complaint remedies based on general anti-discrimination
provisions have been one of the main reasons for working towards Standards,
including standards on discrimination in education. I commend the Ministerial
Council on Education, Employment, Training and Youth Affairs and its Taskforce
on Disability Standards in Education for their work in reaching the point
where draft Disability Standards on education have been able to be issued
for consultation.
HREOC's view is well known that Disability Standards have an important
role in giving greater definition and clarity to the rights and obligations
which exist under the general anti-discrimination provisions of the DDA.
The DDA imposes a general obligation not to discriminate in education,
and provides a corresponding right to complain of unlawful discrimination.
These rights and obligations, however, are subject to limitations by reference
to the concept of unjustifiable hardship and, so far as indirect discrimination
is concerned, by the concept of reasonableness. That is, a requirement
or condition which has a disparate and disadvantageous impact on students
with a disability is nonetheless not unlawful unless it is also unreasonable.
The extent and limits of reasonableness and unjustifiable hardship are
not defined in the DDA. Nor in my view have clear and detailed criteria
for applying these concepts in practice emerged from complaint experience
to date, which now extends for over seven years of the life of the DDA
and considerably longer in the case of some comparable State legislation.
So, the objective for which provision was made in the DDA for making
of Standards - to achieve clarity and certainty of rights and obligations
- remains relevant to education issues. I do not agree with views that
have been expressed by some people that it is too soon to consider Standards
because we should wait for more precedents to emerge from decisions on
complaints. Whether the present draft Standards achieve these objectives
appropriately, though, is another matter, and is principally a matter
for education providers and consumers to consider at this point rather
than for HREOC.
However, I must state my view that the draft Standards do reflect existing
rights and obligations under the DDA. In particular, I am aware of some
community comment that the draft Standards, in using concepts of reasonableness
and unjustifiable hardship, undermine existing rights and obligations.
These comments seem to me to reflect a lack of understanding of the terms
and effect of the existing provisions of the DDA, just as similar comments
on the draft employment standards did.
Whether the draft Standards are appropriate in their definition and level
of recognition of rights and responsibilities is validly the subject of
discussion by interested parties in the consultation process, but this
discussion will be more effective if it proceeds on the basis of accurate
information on the existing law on which the Standards are based.
Consultations on Standards may also be better focused if everyone bears
in mind that all that Standards can do under the DDA is state what is
unlawful and what is not - whether in terms of general principle like
the existing DDA provisions, or in terms of more specific performance
requirements, or in still more specific prescription of what is required
and what is not. Standards cannot in themselves deliver either improved
compliance and accountability mechanisms, or increased funding and resources
- although both of those could be part of a package together with standards.
My own view at the moment is that whether or not Standards in or close
to the form proposed are adopted, we need far better mechanisms for resolving
discrimination issues earlier in practice, and that it would be worth
discussing possible exemptions in exchange for better processes of this
kind. But these are only thoughts in the abstract: whether any particular
process deserved recognition through a DDA exemption would need to be
tested through accountable public processes in a specific case.
The area of access to premises is a minefield of Commonwealth and State
as well as Local government legislation. It is also an area where progress
has been slow. I will not comment on it further today except to say that
I am hopeful of some advances in the next month or so, and significant
progress over the next twelve months.
As I have already noted, the DDA was initially conceived only as employment
discrimination legislation. There is no point then in hiding from the
reality that we have less measurable outcomes in eliminating employment
discrimination, or in achieving effectively equal employment opportunity,
than in almost any other area of life. Let me remind you of some depressing
conclusions which Chris Sidoti gave publicly as Acting Commissioner more
than two years ago:
"Comprehensive evidence on the effectiveness of achievement of the objective
of elimination of discrimination in employment is not available but such
evidence as exists is not encouraging:
- Overall employment rates for people with a disability do not appear
to have been improved markedly since passage of the DDA. - Representation of people with a disability within Commonwealth employment
has in fact decreased, as indicated by the Australian National Audit
Office report Equity in Employment in the Australian Public Service. - There are few if any instances identifiable of settlement of or decision
in complaint cases under the DDA in the employment area which have had
broad and significant impact in achieving the elimination of discrimination
-the major object of the DDA - rather than simply providing an individual
remedy - which while important does not appear among the objects of
the DDA in its own right. - This has not been because of a lack of complaints. From the outset
employment complaints have been and continue to be the largest proportion
of DDA complaints compared to other areas covered. - 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. - However, this has required investment of a considerable proportion
of the Commission's complaint handling resources (and those of State
and Territory authorities); and correspondingly large use of time and
effort (and in some cases money) by complainants, advocates or representatives,
and employers. - Resolution of complaints has generally been on an individualised
basis and questionably to a level justifying the resource allocation
involved for the Commission and for parties to complaints."
When the DDA was being planned, it was not meant to be the whole of a
strategy for achieving equal employment opportunity - even including issues
such as access to transport and accessible buildings, and other things
from which employment opportunity can be built, such as accessible telecommunications
systems, where I think it is fair to say we have made some progress.
Ten years ago, the agenda included other issues, like financial measures
from government to meet additional costs of disability. There is also
a need to look at whether employers have effective and sufficiently easy
access to information on how to deal with disability accommodation issues
- there is still no equivalent in Australia for example to the U.S. Job
Accommodation network advisory service, other than the efforts of agencies
like Technical Aid to the Disabled (seriously under resourced compared
to the task to be performed).
I fully support the call from many disability organisations, in the context
of current welfare reform discussions, to look at the "other side" of
mutual obligation: the obligation of government and community to do all
they can to remove the barriers which presently exist to people with disabilities
taking advantage more fully of opportunities and making contributions
more fully in the economic life of Australia. I think the submission to
the welfare reform discussions on behalf of the Physical Disability Council
for NSW (available on the Department of Family and Community Services
internet site) should be compulsory reading for everyone dealing with
these issues: not least because it places the issue of accommodation of
disability in employment in potentially a much wider context of a need
to consider costs of disability as a community insurance issue rather
than continuing to allow these costs to fall unjustly and arbitrarily
on individuals .
Meanwhile, however, we have the DDA to administer as it is. In that enterprise
I look forward to your continued constructive criticism and cooperation.
Finally, I want to talk briefly about the Commission's public education
function. In my view, there is no better way to educate the public on
disability discrimination issues than to have the Bruce Maguires and Scarlet
Finneys of the world pursuing complaints to successful results in public
hearings.
During the last year we have therefore used most of our limited resources
on issues which will cause policy or systemic change on the basis that
this change, in itself, will have public awareness value. The fact that
the 4700 hits that the disability rights section of the Commission's website
received last month was an 87 percent increase on last October's result
is clear testimony to this.
However, some years ago the Commission recognized the particular issues
facing indigenous Australians with a disability, and attempted to assist
this group with the publication of a manual Making Connections. We have
decided to make this manual freely available recently, and the large demand
for it has caused us to move having it available on line. Overall, it
is fair to say that this year has been one of achievement and progress
towards elimination.
But, as with Steve Waugh and his colleagues, now is not the time to take
our eyes off the ball because there is still a long way to go and much
to be done.