Meeting with National Disability Advisory Council

Meeting with National Disability
Advisory Council

Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner May 21 2004 Melbourne

Introduction: Importance of co-operation between NDAC
and HREOC

Thank you for the opportunity to be here today.

I wrote to Ian Spicer early this year to commend him for agreeing to
serve for a third term as Chair of the National Disability Advisory Council.

I think the long term commitment that Ian has given to this role should
be admired.

You might have noticed that somehow governments never seem to want the
same long term commitment from Human Rights Commissioners. In fact, they
often seem quite happy to see us arrive at the end of a term of office
... .

Of course, new people can be important in bringing forward new ideas.
But I do think that the continuity and experience that Ian brings to his
role is very important.



When I wrote to Ian Spicer I also expressed my congratulations to all
members appointed for the Council's current term.

I said then that I would be happy to meet with Council at any convenient
opportunity to exchange information and discuss possible joint work and
priorities.

Can I also repeat now in person those congratulations and that message
about the importance of working together.

I think it is important that we keep up these meetings on a reasonably
regular basis, as I and my predecessors have done.

Of course, our responsibilities are not identical. Not everything within
the ambit of Commonwealth Government disability policy and programs, which
NDAC has a role in advising on, is within the ambit of the Disability
Discrimination Act, which defines my main responsibilities. And of course
the Disability Discrimination Act is not only about the activities of
the Commonwealth Government, covering other levels of government and many
aspects of the private sector.

But still, there are very large areas where our work overlaps and where
continued co-operation can be productive in advancing access, opportunity
and citizenship for people with disabilities in Australia.

Information exchange

We make a particular effort to provide detailed and regular information
- through email and the world wide web - on the disability policy work
of the Human Rights and Equal Opportunity Commission, and to seek input
in all aspects of that work..

I hope that you have all seen the regular updates which I publish to
the web every eight weeks or so, which are essentially the same content
as the reports I provide to my own colleagues within the Commission. We
also maintain an email list to advise people when those and other updates
are available. If you are not already on that email list there is information
on our website on how to join or my staff can add you in if you prefer.

But all of us I think still also need the old fashioned human interaction
of face to face discussion from time to time.

What I want to do today is give a brief run through of where the Human
Rights and Equal Opportunity Commission are at and where we may be going
over this year on a few disability issues. I will not attempt a comprehensive
survey of issues, because I want to leave plenty of time for discussion.

But I am happy to come back to any of the other issues we are dealing
with or that you think we should be dealing with - either today or by
contacting my office by phone or email.

Productivity Commission review of DDA

Last year, both the Commission and NDAC conducted events to mark ten
years of operation of the Disability Discrimination Act. We reflected
then on what has been achieved and what remains to be done.

As I think you all would know I published an informal review of the first
ten years, "Don't judge what I can do by what you think I can't".
That publication remains available on our website and also in print and
other alternative formats.

Over the last year a more formal review of the DDA - with provision for
extensive public input including hearings around Australia - has been
conducted by the Productivity Commission.

The origins of this review were in a National Competition Policy requirement
to review legislation assessed as having potential impact on competition
or a major impact on business.

We made the point early on in this process that if anything the DDA should
be considered pro-competitive - by seeking removal of the exclusion of
Australians with disabilities from markets both as providers of skills
and labour and as consumers of goods and services.

But we welcomed the opportunity for detailed independent assessment of
the effectiveness of the DDA, and for discussion of possibilities for
achieving the objects of the DDA more effectively.

The report of this inquiry was given to the Federal Government at the
end of April. The report is not yet public and so I cannot comment on
what is in it.

I understand though that it should be tabled in Parliament soon, since
that is required within 25 sitting days from when it was delivered.

Some indication of the directions that the report is likely to take can
be seen from the draft report issued late last year and discussions at
the subsequent round of public hearings.

• The Productivity Commission assessed the DDA as having net economic
  and social benefits for the Australian community with benefits outweighing
  costs, and limited impact on competition
• The draft report assessed the DDA as having achieved substantial progress
  in some areas such as public transport and access to buildings but less
  success in other areas, in particular employment and discrimination
  against people with intellectual or psychiatric disabilities. This was
  consistent with the assessment HREOC published in March 2003 on the
  first ten years of the legislation.
• The draft made a range of proposals for making the legislation more
  effective. Without necessarily endorsing all of these proposals in detail
  HREOC welcomed their overall direction and supported their serious consideration
  by government. Important proposals included clarifying definitions and
  making wider provision for making disability standards.
• We also welcomed a call in the draft report for further consideration
  of how costs of achieving equal access and participation for people
  with disabilities can be effectively and equitably met.

I would expect and hope that NDAC, as the principal source of advice
from people with a disability within government, will be closely involved
in formulating the government response to the final report. The Commission
made several detailed submissions and we will also be seeking to be closely
involved as the Government develops and implements its response to the
report.

Employment issues

I mentioned employment as an area where the draft Productivity Commission
report and HREOC's own assessments have indicated a need for substantial
further work and consideration of possible new approaches.

This need has been given particular emphasis by recent judicial decisions
calling into serious question the effectiveness of the DDA in dealing
with reasonable adjustment issues, particularly in the employment area.

Statements in two recent Federal Court decisions raise serious concerns
that, in response to the High Court decision in an education case last
year, Purvis v NSW, at least some judges may now be interpreting the DDA
as not including any requirement of reasonable adjustment at all. (The
two decisions - Forbes and Fetherston - are linked from the court decisions
page on HREOC's disability rights.)

In effect this could mean treating the DDA as covering only a lack of
formal equality - despite this being in my view clearly contrary to the
intentions of the Parliament, and not being required by what the High
Court actually decided in the Purvis case.

Such an approach would clearly render the Act largely ineffective in
dealing with the majority of discrimination issues that have arisen in
complaints and policy work over the last 11 years.

I am considering as a matter of urgency what responses are possible
to these developments. As part of this I intend to begin discussions as
soon as possible on employment issues with employer representatives, disability
organisations and government. I would welcome ideas today both on processes
for developing appropriate responses and on the substance of how to move
forward on equal employment opportunity for people with disabilities.

It seems certain that the Productivity Commission will make recommendations
in this area, and this will provide important opportunities and direction.
But the Productivity Commission report and any government response to
it will also have to deal with many other issues deal with by the DDA.
I think we need to explore all possible processes and ideas to get a particular
focus on employment issues rather than waiting for or relying exclusively
on a response to the overall review of the DDA.

Commonwealth Disability Strategy

One of the areas of particular interest to NDAC where the Productivity
Commission did not have much information in its draft report was on elimination
of discrimination within the Commonwealth Government's own operations
through the Commonwealth Disability Strategy.

Together with NDAC and a range of relevant Commonwealth Departments HREOC
has been included in the Steering Committee to oversee evaluation of the
current Strategy.

I think it is fair to say that there was a strong sense within the Steering
Committee that parts of the Commonwealth had not embraced the Strategy
vigorously and that the evaluation would show significant weaknesses in
its implementation.

I have become more and more concerned by evidence that employment of
people with disabilities as a proportion of the Australian Public Service
is continuing to fall. This is occurring not only overall - which might
be explained by reduced numbers of entry level positions - but at all
levels - when we might have expected and hope that improved representation
particularly at more senior levels would be flowing from

• reasonable adjustment and non-discrimination policies now in place
  for many years;
• developments in technology which should have made it easier to remove
  many disability related barriers for people with sensory or physical
  disabilities in particular; and
• advancing educational opportunities for people with disabilities in
  recent years.
  
  Obviously the government is not as large an employer as it once was.
  But public sector employment clearly still has, or should have, a critical
  role in setting an example on how to achieve the objectives of equality
  of opportunity which are enshrined in the DDA.

One proposal we made at the meeting of the CDS evaluation steering committee
in March was to make changes to the project outline to ensure the issue
of employment of people with disabilities within the Commonwealth was
more clearly identified as a focus for the evaluation of the outcomes
of the CDS.

At the same time, I am considering what other measures HREOC can take
to promote wider discussion of and action on unsatisfactory outcomes in
the employment area and specifically within the Commonwealth public sector.
Again, I would welcome your comments in this respect, both today and as
HREOC's work in this area develops.

Other issues for discussion

As I said, there is not time for me to detail now all of our other areas
of work. The content of my most recent report to my own Commission, presented
on Tuesday this week, is now available as the Disability Rights Update
for May. Apart from the areas I have already discussed, the areas of work
reported there include

• further work towards an international Convention on human rights
  and disability;
• consultations on the proposed disability standard on access to premises;
• developments on television captioning;
• the report of a Senate committee considering proposed amendments to
  the DDA regarding drug addiction;
• continued work on access to tertiary education course materials; sterilisation
  issues; insurance; and telecommunications.

I would be happy to talk about these and any other areas of interest
and possible co-operation now, and to receive any further feedback you
might have in future. Again, thank you for the opportunity to meet today.