National Deafness Sector Summit

Saturday 20 May Perth Graeme Innes Human Rights Commissioner and Disability Discrimination Commissioner

Introduction

I'd like to acknowledge the traditional owners of the land on which we meet.

I'd also like to acknowledge Brian Rope's many years of contribution to the disability sector, and wish him well in retirement, and wish Nicole Lawder success as she moves into the CEO's role.

When Brian invited me to speak he suggested that I might like to provide delegates with views and information relevant to the Summit topics:

• costs of hearing/deafness disabilities,
• hearing health,
• deaf education,
• communication access,
• and noise injury.

I'll do my best on those, and a few more topics as well, in the 20 minutes I have. If I skim over some points in the interests of time, the extended version will be on our website shortly.

But I have to say that in getting that list I was reminded of an occasion a few years ago when Gough Whitlam was given ten topics to choose from for a ten minute speech, and so he spoke for 10 minutes on each of them in turn.

I'll try to be shorter than that, but perhaps one more Gough story before I start - this one from a Labor Party branch meeting in regional NSW, where the chairman asked members to welcome guest speaker "Mr Geoff Whitlam". Gough turned to his staff and said - "comrades, we're among savages!"

Here in Western Australia , of course, I'm in the happier position of being back among friends and colleagues.

So I want to use our time together well.

Summits

I'm not going to talk at much length about what the Human Rights and Equal Opportunity Commission has been doing on issues relevant to the sector. Hopefully, most of you know as much as you want to about that already from our website and our email list.

I'm more interested in discussing together what the Commission, and the sector, haven't been doing, and what we might do together into the future.

We've had several deafness sector summits now, raising a series of important issues.

A few years back now HREOC hosted its own summit for peak disability organisations.

Those summits produced some papers which still make very interesting and topical reading.

But isn't that's really part of the problem? Issues we discussed years ago still need discussing now.

If your musical tastes are stuck in the 70s, like mine are, and you go to see Deep Purple or some other 70s rock and roll band on tour, you might want to just hear all the old songs.

But in working for access and equality for millions of Australians, it would be nice to feel able to move on to some new material.

As Karl Marx famously said, the point is not just to describe the world in various ways, but to change it.

Let me offer a sweeping, and therefore partly unfair, assessment: that previous summits convened both by the deafness sector and by the Human Rights and Equal Opportunity Commission to talk with the disability sector more broadly, have been much better at exchanging information on issues than on producing action to resolve those issues.

That's meant more as a confession than as an accusation.

And in one respect it's not surprising. Both in the human rights business and in disability, our summits and similar meetings are often conducted with one side of the table missing - the industry and government representatives we need to negotiate with, to get our agendas translated into action.

I don't mean to dismiss the importance of the expertise and support that comes in a meeting such as this from specialist disability service providers and disability specialist areas of government.

But obviously if what we want is equality and access in every area of society then talking to ourselves is not enough - we need to engage government and industry more broadly.

Now, of course, in fact this is exactly what deafness sector organisations have been doing successfully on some issues, as well as being the approach which the Human Rights Commission has been trying to take on disability issues more generally.

• The advances being made in the amount of television captioning available, both on free to air and subscription television, were achieved through the sector using the complaints and exemption processes under the Disability Discrimination Act as a forum for negotiation with the relevant industry players to achieve agreed outcomes, with a timetable for achieving those outcomes and processes for discussion of further progress in future.
• Deafness Forum has used the DDA as the lever to negotiate with the Hotel and Motel Association of Australia a program of upgrading access for Deaf and hearing impaired guests
• The program of open captioned cinema around Australia started with a complaint from one individual but has also been built on with cooperative work between industry and sector organisations.

But just by referring to some of the excellent papers from the last Deafness Sector Summit, or Deafness Forum's paper for the disability sector summit hosted by HREOC as far back as 2001 we can see a long list of other issues where progress still needs to be made, in areas such as equal access to education, and communications access in public places as well as in employment.

It seems to me that a summit meeting has two main things to seek agreement on: identifying effective strategies to achieve common goals; and setting priorities for pursuing those strategies.

For organisations with limited resources - and that means all of us - effective action always requires choices among competing priorities.

Frederick the Great of Prussia put it like this: "He who advances everywhere advances nowhere".

A little more recently, and much more tongue in cheek, Deep Purple confronted this same problem of setting priorities, when they instructed their sound crew to "Just make everything louder than everything else".

They certainly tried, setting the record as loudest band in the world at the time.

See, I told you I'd mention issues of noise injury.

Preventing hearing disability and HREOC agendas

I don't actually have much to say from the perspective of the Human Rights Commission, though, on noise injury and prevention of hearing loss.

Don't get me wrong, I think it's perfectly legitimate for deafness sector organisations to include a focus on prevention of hearing loss, in the same way that blindness organisations that I've been involved in include a focus on prevention of avoidable blindness. I don't think it detracts from my dignity and value as a person at all to say we want to help prevent children becoming blind.

Disability and diversity seem to me such inevitable parts of the human condition that even with all the advances in genetic science going on, I just don't believe we are in any real danger at all of being bred into a uniform physically perfect master race. Equally, with 20 per cent plus of the population, the disability community is not a club that needs to go out looking for members.

Having said all that, the focus of the work of the Human Rights and Equal Opportunity Commission is on pursuing equality and access for people who do have disabilities, rather than on prevention.

Sometimes the two sets of issues might overlap. In the area of occupational health and safety we have tried to emphasise - including in our submission to the current review of the Federal occupational health and safety act - that as far as possible safety at work should be pursued by ensuring a safe environment and safe work practices for all workers, including by ensuring equal protection of health and safety for workers with a disability - rather than by excluding people with disabilities from workplaces, and rather than just overlooking disability as something that some workers already have not just as something to be prevented in future.

I'm less sure what an effective role for the Human Rights Commission might be in doing something about the terrible epidemic of hearing loss among indigenous children, though you might want to discuss issues in that area further with my colleague the Aboriginal and Torres Strait Islander Social Justice Commissioner.

It's easier to see how we might have a role in addressing some of the consequences of that epidemic, in particular in looking at whether the children and young people concerned are being ensured the opportunity for equal access to education. This was raised in a paper to a previous Deafness Sector Summit. I'm not aware though of any complaints on those issues concerning indigenous children having been brought forward to HREOC by deafness sector organisations or indigenous organisations or the two sectors in conjunction; or of co-ordinated calls for a national inquiry on the issue, but perhaps those are things a summit might consider.

The DDA and changing society

As I've said, the Disability Discrimination Act is about changing disabling environments and social practices.

On first impressions the Act might look as if it embodies a medical definition of disability and an individual rights focus, in particular through the complaint process.

First impressions are surprisingly often accurate, but in this case they're not.

The Act does embody a social understanding of disability. It was not intended solely or mainly to provide remedies for individual instances of discrimination but as a means of pursuing the elimination of disability discrimination from Australian society as far as possible. The words "as far as possible" might sound like a limitation, almost an apology - but I prefer to think of them as a mission statement.

Mechanisms within the DDA

Exemptions

The DDA provides for the Commission to grant temporary exemptions, for up to five years at a time. A similar power is provided in the Sex Discrimination Act but the different contexts of sex discrimination and disability discrimination has meant using the same power in different ways. In the SDA the main purpose of exemptions has been to protect services or opportunities directed to women, and stop the Act being used to undermine its own purposes by being used to attack those gender specific programs. In the DDA that sort of issue doesn't arise - a valid complaint simply can't be made that people without a disability are missing out on all those wonderful opportunities available only to people with disabilities.

The exemption power under the DDA has had a much more positive function of giving certainty in exchange for positive measures to achieve the objects of the Act. I've referred to the television captioning processes; other major examples were that exemptions were critical in getting accessible trams rolling in Melbourne and in getting South Australian and Western Australian transport authorities started with more comprehensive programs on accessibility back in the 90s.

The Act doesn't specify any process either for how decisions on exemptions should be made, but for many years as a matter of policy an opportunity has been provided for public comment on exemption applications. That policy was initiated partly to ensure accountability in the exercise of such a significant power, and partly because the Commission just cannot do without external input in making decisions on the technical subject matter that often arises in disability access issues.

The constructive but critical participation of the deafness sector in these processes has been very important so far and will remain important in the future in ensuring that the Commission can exercise this power in a way which promotes the achievement of the objects of the DDA.

Standards

The most distinctive feature of the DDA among Australian discrimination laws is of course its provision for Standards, to define in more detail what access and equality mean and when they have to be achieved. In drafting the DDA we took the view that, as I have already suggested, much of disability discrimination is very different from race and sex discrimination.

With many access issues it isn't enough just to tell people not to discriminate. People need authoritative information on what a non-discriminatory environment would look like, as well as a fair degree of legal certainty about what is required for compliance before they will invest in upgrading buildings and infrastructure and information systems and so on.

Public transport

The accessible public transport standards have been producing big changes in physical access around Australia with most sectors looking like meeting or exceeding the first five year targets for accessibility in that area by 2007. Ironically there is much less clear progress in information access, which originally was though of as one of the easier bits and so was marked for 100% compliance by 2007. I know that some transport operators and deafness organisations have started talking about what to do by way of achievable compliance strategies. I would encourage more of that discussion both in the run up to 2007 and in the context of the review of the transport standards scheduled to occur at the five year point.

Education

Disability Standards on education entered force last year. These are a different kind of standards - they don't prescribe outcomes in as much detail as the transport standards. But they do provide more detail on the principles to be applied. For that reason HREOC views them as a significant advance in telling education providers what their obligations are, so they can be expected more readily to comply with them.

That doesn't mean that the standards are already implemented and we can all move on from education as an issue of course.

Access to interpreters is one area where, despite court decisions in favour of several complainants, the Commission continues to receive complaints. I know there are also many other continuing issues of information access in education such as captioning of audiovisual materials.

Complaints and the possibility of complaints remain an important driver for the implementation of the education standards but they are clearly not the only strategy needed.

There are two themes the Commission has been pushing for a while in the employment area, and which I think are also relevant to education.

The first is better access to information on what adjustments to make and how to make them. We have been very pleased to see the Government pick up the suggestion for an Australian equivalent of the U.S. Job Accommodation Network information and advisory service, and that should be launched later this year. I'm hoping that will be structured in a way that allows continued improvement through input of expertise and experience from the sector on good practice and successful adjustments. I think it would be good to talk about some similar facility to bring together and provide easier access to all of the expertise that does exist in the education sector - so that no child needs to miss out on weeks or months of education while an overworked teacher tries to find appropriate resources.

The second theme is that of accessible procurement. If as far as possible all systems and facilities comply with universal design concepts then meeting disability needs will far less often be a matter of making special adjustments and using time and money in that process. In the Commission's national inquiry on employment and disability we recommended that the Federal Government follow the U.S. Government's lead in adopting an accessible procurement policy. I understand that the Victorian government has started work on an initiative in this area and I lok forward to more details shortly. I haven't said so publicly before now, but I'd like to see the same policy extended to, or adopted by, education providers.

It seems to me that the Deafness Forum position paper on education facilities would be a good start to discussion of some of the features of an accessible procurement checklist. I don't have a strategy yet on how to make this idea operational but I would welcome your thoughts.

Access to premises

In the area of access to premises, the standards process is still not complete but it is very close to conclusion. I know that's a line you've heard before; saying it now sounds almost as repetitive as the riff from "Smoke on the Water".

Despite valuable progress towards improved building standards on many access issues it is still the case that many of the issues of interest to the deafness sector remain reserved for later discussion.

Deafness Forum's website includes an excellent listing of issues in achieving access in public places. As the current process winds up, of upgrading the Building Code of Australia for adoption as disability standards on access to premises, we need to be looking for processes to move forward on those issues not included in the building code.

One agenda could relate to Deafness Forum's suggestion, in its submission to HREOC's employment inquiry, for the development of policy or standards on communications access in premises occupied by the Commonwealth Government. Potentially this could be part of a more general policy on accessible procurement as I have suggested.

Co-regulation

Another avenue for advancing communications access issues, including in the built environment, could be provided through implementation of the Government's decision to provide for a mechanism for "co-regulation" under the DDA.

In response to the Productivity Commission review of the DDA the Government decided last year to make provision for HREOC to certify codes developed by other bodies for the purposes of compliance with the DDA.

We are still discussing details of implementation with the Government.

Issues include appropriate procedures to be used for this purpose, and, critically, how to ensure appropriate community consultation and technical input.

Another issue is what the effect of certification should be - should it be conclusive and give a complete defence against complaints, to give maximum certainty and maximum incentive to comply, or should the effect of compliance with a certified code be something less such as being evidence of compliance.

Codes might come from industry bodies or they might be initiated jointly by an industry body and a disability sector body. A relevant code could also come from other regulatory bodies - such as building codes board - or other expert bodies such as Standards Australia.

Although processes in this area are still at an early stage of development I think it is worthwhile for disability sector bodies to start thinking now about how such procedures might be used to achieve more widespread access.

Complaints

I've mentioned complaints a few times now as part of strategies for changing towards a more accessible and equal Australia .

I'd like to re-open conversations with the sector about how complaint processes could be used more effectively.

In particular, the provision for representative complaint has been very little used by disability sector organisations and not always used effectively when it has been sought to be used. There are papers on the web site about this and I won't pursue the subject at length here but I am interested in further discussions with disability organisations on this issue.

There is a gap in the representative complaint procedure at present. Anyone can initiate a representative complaint with HREOC, but only a member of the class represented can take the matter on to the courts.

Like other Commissioners in this area before me I am on record as saying I would like power to initiate proceedings under the Act.

This power was initially provided for in the DDA. It didn't get used, though, because of defects in the way the procedure was set up, involving the Commission referring a matter to the Commissioner who would then conciliate it or send back to Commission for determination as tribunal. You can perhaps understand why most respondents would have problems being confident in the complete impartiality of a process like that.

Unfortunately, the power was removed from the Act in 2000, just when some of the major procedural problems were also removed. The President rather than the Commissioner is now responsible for investigating and conciliating complaints; and if complaints not conciliated they can be taken on to the Federal Court or the Federal Magistrates Court rather than to the Commission as tribunal.

Any procedure for a member of the Commission would still need to be approached carefully to ensure it did not compromise public confidence in impartiality of Commission's complaint processes.

That impartiality is an important asset in trying to use the conciliation process in the spirit of co-operation and pursuing common goals which I referred to earlier.

There would be clearly be problems of perceptions about impartiality in me as Commissioner complaining to the President of our own Commission.

Some of these problems might be reduced though if reinstatement of the power to initiate matters meant a power to initiate matters in the Federal Court or Magistrates Court - similar to the power that the Disability Rights Commission has in the united Kingdom under the Disability Discrimination Act there - rather than to initiate a complaint to the Commission.

One possibility might be to add this as an option for the representative complaint procedure, so that where appropriate the Commissioner could take significant public interest matters to court instead of having to be a class member.

At HREOC disability sector summit some years ago, Deafness Forum also raised issues of how to ensure sector input into processes having broader implications for access beyond the individual concerned in a particular complaint. Support was expressed for the initiative used in a small number of cases of using public process as part of investigation of complaints in significant cases.

On that issue perhaps I should just note that my views are on the record, but also that it's not me you need to persuade.

It's also worth noting that State anti-discrimination bodies seem to me to have a similar capacity to include public processes in complaint investigation, and you might benefit from discussing similar initiatives with them.

Public processes and pursuit of common interests

A common theme in most of the processes I've talked about for achieving more on issues of disability access and equality is looking for ways to achieve greater co-operation and involve everyone relevant in sharing knowledge and resources and finding a common interest in situations which start from opposing positions.

Some of that I guess comes from my background as a mediator and conciliator myself. But I think it also relates to the nature of disability as an inherent part of the human experience. Access issues affect us all, directly or as family members, or if they don't now they will later as we age as individuals and as a population and hence experience increasing levels of disability.

(Pete Townshend wrote the lines "Hope I die before I get old" but, like more and more of my generation, he just acquired a hearing impairment instead.)

Public inquiries by the Human Rights Commission are partly about drawing attention to issues that might otherwise get overlooked in all the noise. Partly they are about giving the microphone to people whose voices don't always get heard. But - taking our recent inquiry on employment and disability as an example - they are also about bringing different perspectives and information together in search of solutions or ways forward, not about a hunt for the guilty.

One of the reasons I'm pleased to have been appointed as Commissioner now rather than at some point in the past is that by using the possibilities of the internet we can run more inquiries and other public processes now with limited resources, instead of having to turn over a million dollars or so of public money into jet fuel and hotel bills and paper every time.

But like Frederick the Great's armies or Deep Purple's sound crew, there are still limits to what we can do and still choices to be made - both among disability issues and among the wider range of discrimination and human rights issues within the mandate of a small organisation with wide national responsibilities.

It's critically important that in making those choices we are made as aware as we should be of the priorities for action as the deafness sector sees them and as the broader disability sector sees them.

I don't know whether the best method for ensuring that awareness is to discuss formal lists of top ten priorities in the manner for example that some U.S. government agencies do with the disability sector, or what additions and improvements we need to make to the flows of information that already occur between us.

But I do know that to perform our own role we need to hear from you as clearly as possible your views on what we should be doing and how, including when you think we haven't done it.

In return we will keep trying to listen and learn from what we hear from you. The sound of Australia becoming a more equal and inclusive society mightn't be louder than everything else, but I think it's the tune we all want to hear.