Notes for presentation to Productivity Commission DDA review
Disability Rights
Notes for presentation to
Productivity Commission DDA review
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Graeme Innes AM Sydney, 14 July 2003 |
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Thank you for the opportunity to be here today. Can I begin by apologising
for the Acting Disability Discrimination Commissioner Dr Sev Ozdowski.
Sev has been following this inquiry very closely but had arranged to be
away this week before the schedule for these hearings was settled.
As we said in our initial submission HREOC considers this inquiry a valuable
opportunity to assess the effectiveness of the DDA and examine possibilities
for achieving the objects of the DDA more effectively.
As we also said, our overall assessment is that
- the DDA has contributed to significant progress in eliminating discrimination
against people with disabilities in most of the areas of life which
it covers - this has included dealing with over 5000 complaints and providing
redress through agreed resolution in many cases - costs do not appear to have been disproportionate to benefits being
achieved - there are however areas (in particular employment) where broad progress
in achieving the objects of the legislation is harder to identify - consideration of additional mechanisms for achieving the objects of
the DDA is justified.
A second formal submission which discusses issues raised in other submissions
so far should also be with the inquiry shortly.
We will not attempt to present our submissions here in detail - reading
out more than 50,000 words would probably take about 8 hours and we do
not think that would be the best use of the Inquiry's time.
We will try here though to give an overview of issues from our initial
submission as well as issues we see as emerging from other submissions.
We would be happy to address any issues of particular interest to the
inquiry in more detail either here or on a later occasion.
Economic and competition effects
Although there are many issues about the law to discuss, we would like
to start instead with the area of costs and benefits and economic impacts
where we lawyers have less expertise - because the point of the DDA is
to make a difference in the real world, not just in legal theory.
We agree with points made in submissions that costs of disability in
Australian society are present already rather than being generated by
the DDA (other than the specific and limited costs of dealing with complaints),
and that the major issue is how to distribute these costs appropriately
and reduce their impact as far as possible both on individuals and businesses.
To set against costs, our submission notes that economic benefits which
need to be considered may include:
- Reduced costs of separate or parallel service provision as mainstream
services and facilities become more accessible and inclusive - Increased labour market participation, leading to reduced welfare
dependence and increased competition in the labour market - Improved skills formation and use
- Potential improvements in productivity through requirements for inclusion
and accessibility providing incentives for innovation in methods of
work and service delivery - Improved useability of services and facilities for all members of
the community through increased adoption of universal design approaches
HREOC would support consideration in the context of this inquiry of appropriate
incentives for increased accessibility and inclusion, whether at federal
level (in particular taxation incentives, possibly comparable to research
and development concessions), state level (including perhaps as part of
regional development programs) or local level (through the inclusion of
incentives as part of accessible community initiatives).
Outside of the limited areas where support is currently provided for
access and inclusion, the costs of adjustments to accommodate disability
requirements appear to fall either on particular employers, service providers
and others with responsibilities under the DDA and equivalent legislation,
or on people with disabilities and their families. To the extent possible
in this inquiry we would support examination of means of addressing these
impacts beyond the legal rules of the DDA itself.
In this respect we think we should note very extensive payments which
have been made within the framework of competition policy to providers
in some industries to offset adjustment costs in moving to more open market
access for consumers. We would like to see possibilities examined in the
course of this inquiry for this approach to be applied to adjusting systems
and facilities in our society to be more accessible and inclusive for
people with disabilities, in those areas where market and regulatory and
legal processes alone may not be sufficient. There seem to be particular
needs in this respect in employment and education.
Turning to issues about the DDA itself, our submissions try to deal as
far as we can with each of the issues raised in the Issues Paper, so there
is discussion of
- the definition of disability: where in brief we think the existing
definition works well; - definitions of discrimination: where we think some revision of existing
definitions would be useful, to clarify the meanings of direct and indirect
discrimination, as well as clarifying the application of the definitions
of discrimination to carers and other associates and to specific disability
services; - reasonable adjustment: which we think should be expressly recognised
in the DDA; - areas covered by the DDA: where we think there are possibilities for
expanded coverage, including in occupational relationships and accessibility
of products; - exemptions under the DDA: where we think most of the exemptions are
justifiable, but we agree with submissions recommending review of the
special measures section to avoid misunderstandings of its effect; possible
inclusion in the prescribed laws provision of a limit of five years
at a time, and review of the exemptions regarding the Migration Act,
combat duties and peacekeeping, domestic duties, and disposition of
land by will or gift; - unjustifiable hardship: which we think is a necessary concept to balance
competing rights and interests, but which we would like to see further
defined by standards and other processes and which we would also like
to see made less necessary to rely on through increased assistance in
meeting costs of adjustments; - harassment: where we think further definition may be useful and where
submissions raise interesting possibilities for broader coverage; - requests for information: where we think the existing provision needs
revision; - the objects of the DDA: where we think the object of eliminating discrimination
could be supplemented with a more positive equality object, and where
we note that the equality before the law objective is not broadly matched
by the substantive provisions of the Act; - effectiveness in achieving the objects of the legislation: where we
note the lack of objective benchmarks in many areas but where we point
to some evidence in the last ten years of experience; - relationships between the DDA and other laws: where we think there
are possibilities for use of the prescribed laws provision and standards
development; - relationships with state anti-discrimination regimes: where in brief
we do not see overlapping jurisdiction as a major problem, except for
some issues in relation to standards and exemptions; - disability standards: where we support standards being able to be
made in any of the areas covered by the DDA, without presupposing that
standards will always be the best way forward on any particular issue; - action plans, where we support consideration of mandatory action plan
requirements at least for government; - industry self regulation, where we see potential for industry codes
and procedures to take a greater role in achieving the objects of the
DDA; - complaint processes; where we acknowledge concerns and limitations
but where we think that many submissions underestimate the effect that
complaints can have and have had in some cases; - information and education on the DDA and disability issues, where
we note HREOC's limited resources relative to the task and where we
the need to work further to involve other organisations including industry
bodies; - public inquiries: which we think have been an effective means for
promoting awareness and compliance, while not being the appropriate
or possible response to each and every issue; - future challenges: where we refer to the limited scope of the DDA
as discrimination rather than human rights legislation and to challenges
and opportunities presented by development of new technologies - including
in the telecommunications area where we have just released a major discussion
paper; - improvement of the overall operation of the DDA: where we support
continued development of disability standards but also possibly provision
of certainty through other means including industry codes and standards;
we support consideration of a self-start complaint power being reinstated
while also acknowledging a need to deal with perceptions of conflicting
roles; and where we also note lack of adequate information mechanisms
on practical solutions to access and inclusion issues, and limited government
support for research on these issues; - approaches from other jurisdictions: where we note the accessibility
rules for equipment procured by government which exist in the USA, and
where we would also support consideration of overseas experience with
employment equity legislation referred to in submissions.
Particular areas
Our initial submission then moves on to discuss particular areas of life
covered by the legislation, and there are further comments on these issues
in our second submission.
Employment discrimination
As is clear from our submission we have much less detailed information
or solutions in this area to provide than we would like. In common with
a number of other submissions we would note that many of the issues in
this area may be more systemic rather than mainly being about discrimination
directly by employers. This includes issues of arrangements for meeting
participation costs for people with disabilities and adjustment costs
for employers.
Submissions from an employer/recruitment perspective as well as from
the disability community emphasise the importance of assistance in meeting
costs of workplace modifications to provide more effective employment
opportunity - including issues such as provision of support workers where
required as well as physical modifications to premises or equipment.
A number of submissions support HREOC's view that in considering the
relationship of income support arrangements to employment outcomes it
is important to take into account needs for support in meeting costs of
participation rather than adopting models which only consider disincentives
to participation which might be provided by payments through the welfare
system.
Disability standards on employment
We do not think that discrimination law alone will be effective in achieving
equitable employment outcomes for people with disabilities but we have
committed considerable time towards having discrimination law perform
its part.
Very extensive work for negotiation of disability standards on employment
failed to produce a consensus to move forward to recommend standards for
adoption. One issue was that, while most participants in the process agreed
that prescriptive standards were not appropriate, the principle based
draft standards which were produced instead were not seen by all parties
as delivering sufficient outcomes. Employer representatives also expressed
a preference for voluntary standards rather than a further level of regulation.
There may be a role for standards in addressing some specific issues
including those raised in submissions about the relationship between occupational
health and safety laws and discrimination laws. We do not favour giving
priority to another attempt at more general standards on employment at
this point. As already noted there may be better prospects for clarifying
the role of reasonable adjustment in the DDA through legislative amendment
than through development of standards.
Exemptions
In the absence of standards, HREOC has indicated publicly a view that
the exemption mechanism under section 55 of the DDA, in conjunction with
appropriate EEO, workplace diversity or other relevant policies and procedures
and/or industry codes, appears to offer significant potential for promoting
the objects of the DDA and increasing certainty for employers and other
relevant parties. Use of this mechanism depends on applications by or
on behalf of employers rather than being a matter for initiation by HREOC
action.
The DDA and industrial law
Several submissions discuss the interaction between the DDA and industrial
law and call for provision for review of discriminatory awards and agreements.
In our view HREOC already has power to seek to intervene in industrial
proceedings although it might be useful for this power to be made more
specific. In keeping with the comments made already on mainstreaming of
disability issues, a more substantial issue may be how effective are the
existing non-discrimination provisions in the Workplace Relations Act.
Affirmative action
Our initial submission referred to the lack of employment equity reporting
or other affirmative action provisions in the DDA. A number of submissions
support consideration of quotas for employment of people with disabilities
as implemented in some overseas nations. HREOC although agreeing with
the need to consider further measures to address the disadvantaged employment
status of people with disabilities is not aware of evidence of quota systems
working effectively. Other submissions refer to other forms of affirmative
action measures provided for in employment equity legislation overseas,
including requirements for reporting and development of plans and policies,
which we would see as more promising.
Education issues
As noted in our submission we expect most information in this area to
come from education providers and from students and parents.
We note that there is discussion in a number of submissions of costs
of reasonable adjustment and adequacy of government assistance in meeting
those costs.
Several submissions raise concerns that the number of students with disabilities
requiring specific support far exceeds the number receiving it and that
resources provided by government to assist with education of students
with disabilities has not kept pace with increased rates of integration.
Submissions also raise problems with eligibility for assistance including
rigid classifications; failure to include some forms of disability; and
time spent in categorising rather than assisting.
Several submissions refer in particular to limited public funding assistance
available for students with disabilities in non-government schools. HREOC's
initial submission also refers to concerns in this area which have been
raised with us.
Several other submissions however note the levels of Commonwealth assistance
going to some relatively privileged independent schools, albeit not targeted
to students with disabilities. It would clearly be a serious concern if
priority in allocation of public funds were going to facilities such as
additional cricket pitches at elite schools, rather than to support for
all students including students with disabilities to be able to participate
effectively in education whatever school they attend. HREOC is not in
a position to assess this or the competing claims of public and independent
schools, but we are concerned that current arrangements may not be directing
sufficient resources to support equal and effective participation by students
with disabilities overall.
Most discussion of the operation of the DDA in the education area has
concerned the complaint process, the development of standards and the
current litigation about the relationship of the DDA to disabilities affecting
behaviour. Our submission seeks to give some emphasis to the possible
role of temporary exemptions in managing the transition to more inclusive
systems, including in education, and in defining appropriate policies
and procedures. That role could include dealing with the issue raised
by some submissions that at least during this transitional period some
disability needs may not be able to be addressed in all schools, so that
systems or groups of schools might need to consider an exemption based
approach to ensure that a "clustering" approach to service provision
is lawful.
Child care funding
One issue raised in our submission was an insufficient level of funding
for the Commonwealth Special Needs Support Scheme to address the needs
of all eligible children to assist in participation in child care. We
should acknowledge the recently announced increase in funding for that
scheme although we are not in a position to assess whether that increase
is sufficient.
Public transport issues
Our submission notes limitations of data on progress in public transport
access but on the available information most aspects of public transport
are moving forward at or better than the timetable indicated in the accessible
public transport standards. We do point to some areas where progress is
less clear, including information aspects o transport services, accessible
taxi services, rural and regional air services, and coordination of accessible
transport with local infrastructure, as well as indications that access
outside city centres would be achieved faster with improved incentives
for accessible services
In our submission we discuss the delay in getting transport standards
in place. Some of that was a matter of unfamiliarity at the time with
regulation impact statement processes which should present less of a problem
now.
The process of developing the transport standards also highlights the
need for an adequate research base for standards rather than having to
adapt or apply existing Australian Standards which as some other submissions
note may not always be ideal in terms of appropriate content or accessibility.
Access to premises issues
Our submission notes that while we have some evidence in complaint outcomes
of improvements in access to premises we do not have an overall national
picture of what proportion of the building stock is accessible.
We share the view indicated by the Australian Building Codes Board that
the key objective is to have an appropriate level of access requirements
incorporated in the mainstream building code and associated laws so that
new buildings and significant building work routinely provide accessibility.
The ABCB notes that this will mean about 5% of the building stock becoming
accessible each year which is comparable to the pace of change set out
in the public transport standards. In relation to existing buildings where
there is no building work scheduled the intention is that the existing
discrimination provisions will continue to apply including the defence
of unjustifiable hardship which we think provides a reasonable degree
of flexibility including for small businesses.
We are aware of the issue raised in some submissions of local government
not having enough certainty to make judgments about unjustifiable hardship
and we think that the temporary exemption process may have a role there.
HREOC is also discussing with other parties involved how best to move
on to deal with issues not covered by the building code once the current
standards process based on revision of the building code is completed.
There are issues like accessibility in children's play areas which are
not covered by the building code where standards development overseas
including in the USA is considerable more advanced than here.
Goods services and facilities
Again in relation to goods services and facilities our submission notes
that there have been some good complaint outcomes but that it is less
clear how far these represent changes across the Australian economy. We
do point to some broad areas of change in telecommunications, banking,
and broadcasting where there have been large scale agreements negotiated
with industry through a range of processes under the DDA including complaints,
public inquiries, temporary exemptions and development of industry standards.
We are looking at further work in this area including improved provision
of information on non-discriminatory service provision and further development
of industry codes or standards.
Accommodation
Our submission notes that the accommodation area is one which shows most
clearly the limitations of the DDA as a discrimination law rather than
one which guarantees fundamental human rights more broadly. No strategy
has yet been found to use the DDA effectively to ensure adequate levels
of provision of accommodation for low income people with disabilities,
or people with particular support needs, or young people with disabilities
to prevent them being consigned to aged care.
We should also note that apart from public housing - which is covered
as a service provided by government - the DDA does not address the availability
of accessible housing, although we have been able to assist in having
some work done in that area by the ABCB in conjunction with disability
community organisations.
Although we are aware of community support for development of disability
standards on accommodation, as indicated in our submission we are not
convinced that development of standards under the DDA is the best way
forward in this area.
We do note in our submission that before considering embarking on standards
development there is scope for testing the application of the existing
provisions DDA to some disability accommodation issues including in relation
to the range of accommodation options provided for people in institutional
living arrangements.
Commonwealth administration
Similarly our submission notes that standards may not be the way forward
on all aspects of administration of commonwealth laws and programs although
as already noted we would support introduction of accessibility requirements
for Commonwealth procurement similar to those which exist in the United
States.
Talking points in more detail on aspects of the DDA:
Definition of disability
HREOC views the current broad definition of disability in the DDA as
having worked well including in comparison to overseas experience. As
discussed in our submission there have been issues raised about some aspects
of coverage - including in relation to addiction, obesity and transsexuality
- but we do not see those as justifying a change of definition.
A number of submissions criticise the definition of disability in the
DDA as adopting a medical or deficit model and recommend a social model
of disability be adopted instead to recognise the disabling effect of
inaccessible environments, social attitudes etc. Some submissions go further
to present the use of the label "disability" in equality legislation
as self defeating and call for more general equality legislation without
using the term disability or specifying particular grounds of discrimination.
Possibilities for including a social or environmental model within the
definition of disability were considered when the DDA was drafted. These
approaches were rejected because however appealing in theory, they risked
leaving some instances of disability discrimination outside the coverage
of the Act.
The DDA considered as a whole rather than only in relation to the definition
of disability, already does reflect a social or environmental model of
disability. In particular the scheme of the DDA in providing for standards
of general application rather than relying purely on discrimination complaints
is intended to move away from a focus on "disability as difference"
towards universal design approaches. People do not have to prove their
disability to get on a low floor bus for example.
Definitions of disability used for different purposes
It is not necessarily inappropriate for definitions of disability to
be different for the purposes of different legislative regimes or for
discrimination law to use a wider definition of disability than legislation
creating entitlement to benefits.
However, if there are excessively restrictive definitions of disability
for the purposes of some benefits this may lead to discrimination - for
example, if only some of those students who require targeted assistance
to achieve equal educational opportunity are eligible for that assistance.
It should also be noted that in many cases a lack of necessary assistance
or support is appears to be the result of inadequate resources made available
rather than being because of purely legal issues of restrictive definitions.
Assistance animals
This is an area not addressed in the Issues Paper or our initial submission.
We note that a number of submissions argue that the requirement for assistance
animals to be trained should be removed as it excludes therapeutic pets
and animals where a training regime is difficult to identify. We do not
agree with a proposal to remove the requirement that animals be appropriately
trained to assist a person with a disability. Such a requirement appears
essential to balance rights of assistance dog users with rights of other
members of the community including children, older people and people whose
disability renders them particularly vulnerable to attack by dogs whose
behaviour cannot be guaranteed with sufficient certainty. We do agree
however that there is a need for review in this area to provide clearer
definition of rights and responsibilities. We have issued a discussion
paper on options in this area in the last week.
Areas where discrimination is unlawful
Our submission pointed to several possible areas for expanded coverage
by the DDA. Others have been raised in submissions from other individuals
and organisations.
Occupational relationships
HREOC would support consideration of additional coverage of discrimination
in occupational relationships. For example, while partnerships are covered
expressly, discrimination in entering franchise arrangements has only
been able to be dealt with on the basis that a franchise arrangement may
constitute a "club" as defined in the DDA. Coverage of voluntary
work could also be reconsidered.
Some submissions argue that the DDA does not apply clearly enough to
training and apprenticeships. In our view apprenticeships are definitely
covered but if if users of the legislation are not finding this point
sufficiently clear in practice this may justify additional provisions
to put the position beyond doubt. In relation to training there is one
decision - Clark v Internet Resources - which raises doubt about whether
training providers in some circumstances would be considered educational
authorities so as to be covered by section 22 of the DDA. It may be appropriate
to consider clearer coverage of training accordingly.
Accessibility and usability of products:
We noted that although the DDA covers discrimination in provision of
goods (as well as services and facilities) it does not contain any requirements
for even minor modifications to be made to the goods themselves to ensure
that they are accessible to or usable by people with a disability (including
by following universal design principles to make products more readily
usable to consumers more broadly).
Coverage only of defined areas
One submission criticises the DDA for only applying in defined areas
and thus implicitly permitting discrimination in other areas. It is correct
that the DDA does not contain an equivalent of the general prohibition
of discrimination in section 9 of the Racial Discrimination Act. Such
a provision could be considered for the DDA. However, some cases under
the RDA have raised problems regarding the effective scope of a provision
which does not define the human rights protected. Inclusion of an equivalent
of RDA section 9 in the DDA might also be criticised as giving an impression
of greater protection of human rights than it would actually provide -
since many disability issues clearly require allocation of resources and
more specific regulatory and enforcement action rather than being sufficiently
addressed by a simple legal proclamation of legal rights. This is not
to say though that a general provision should not be considered.
Vilification
We note that several submissions call for the DDA to cover vilification
on the grounds of disability. HREOC does not have a definite view at this
point on whether such a provision would be within Commonwealth constitutional
power, and on how such a provision might operate, including how vilification
would be defined , but we agree that this proposal merits further consideration.
It certainly seems anomalous that NSW law prohibits vilification based
only on HIV/AIDS rather than by reference to disability more broadly.
Exemptions
Our initial submission discussed most but not all of the exemptions in
the DDA. Other submissions have raised additional issues which we will
also address briefly here.
Special measures
The special measures section in the DDA does not have to perform the
main purpose of similar provisions in other legislation, to protect beneficial
measures for disadvantaged groups from being struck down through complaints
by people outside those groups. It is not possible for a person to make
a valid claim of discrimination under the DDA of being discriminated against
because he or she does not have a disability, or does not have the particular
disability identified as necessary to secure an opportunity or benefit.
The special measures section of the DDA still has important roles in
protecting lawfulness of requests for information which are necessary
or reasonable to establish eligibility for a benefit or opportunity directed
to people with a disability; and in balancing competing needs of different
people with disabilities.
However, HREOC has concerns regarding wider interpretations which have
been given to the concept of special measures in some decisions under
other laws, in particular the Vella case in the ACT. The appropriate
test under the DDA in HREOC's view is whether the action complained of
was reasonably intended as beneficial, not whether it occurred in the
administration of a program or facility intended overall for beneficial
purposes.
In our initial submission we indicated we did not see a need to amend
this section. However, misunderstandings of the effect of the special
measures exception could be reduced by amendments confirming that this
section does not mean that all disability programs and facilities are
exempt.
Several submissions recommend more detailed specification of what constitutes
discrimination in disability services. Some submissions raise possibilities
in this area by reference to the Americans with Disabilities Act which
requires services to be provided in the most integrated manner and least
restrictive setting possible.
We agree that consideration of additional elements in the definition
of discrimination may be useful and may provide a more appropriate means
of clarifying the application of the legislation to some situations (such
as disability accommodation) than the process of developing disability
standards. As with an express provision for reasonable adjustment such
a provision would provide useful affirmation of a principle already implicit
in the concept of discrimination rather than extending the legal reach
of the DDA.
Superannuation and insurance
We do not agree with submissions indicating that the exception for reasonable
distinctions in insurance and superannuation should be removed or restricted,
but do agree that there is a need for better definition in this area -
including through further development of industry codes and procedures
and possibly in conjunction with exemption processes.
Prescribed laws
HREOC considers the prescribed laws mechanism an appropriate means for
determining when the DDA should give way to other laws, noting that this
mechanism provides for scrutiny through provision for parliamentary disallowance
as well as through consultation between governments. We would also support
consideration of proposals in submissions for there to be a requirement
for public consultation before laws are prescribed and that prescription
should have to be renewed after 5 years as with temporary exemptions.
Our submission notes the limited effect of the prescribed laws provision
in protecting only actions in "direct compliance", and not extending
to actions consistent with but not directly required by other laws. Where
the purpose of the other law (as with access provisions in building law
for example) is to provide a code of how to achieve non-discriminatory
results (in the same way as a standard within the DDA itself might do),
protection of actions complying with that code may be justifiable whether
or not they are directly required.
One means to achieve this would be removal of the word "direct"
from the DDA reference to direct compliance. Consideration should also
be given to whether prescription or other methods of recognition should
also be available regarding codes or standards which are not contained
in other laws.
Modified wage exception
We note in our submission that this provision in effect accepts that
some people will have lower productivity because of their disability,
and that to promote their having employment it is preferable to permit
payment on a wage scale modified to reflect lower productive capacity.
However, complaint experience has indicated instances of people being
paid reduced wages without any award or agreement providing for this being
in place. Complaints to HREOC and industrial proceedings have also raised
issues of the level of support and explanation needed to ensure that some
workers with disabilities can participate effectively in agreement making
processes. Complaints under the DDA may not be the best means of dealing
with these issues however and we welcome the decision by the Australian
Industrial Relations Commission to convene a forum in this area.
Infectious diseases
As indicated in our submission we think the exception for measures reasonably
necessary to protect public health in relation to infectious diseases
has operated appropriately and we would not support calls in some submissions
for this exception to be removed.
Charities
The charities exemption is not a general exemption for charitable organisations
and in particular does not give charities general permission to discriminate
as employers.
In HREOC's view this exception simply confirms what would have been the
case under the DDA without such an exception: that it is lawful to establish
and administer charitable instruments for the benefit of people with a
particular disability. We do not think there are major issues either in
retaining or deleting this exemption.
Telecommunications exemption
We note in our submission that the telecommunications exemption in the
DDA expired in 1996. However, it would be useful in the course of this
Inquiry to give consideration to the appropriate relationship between
the DDA and the telecommunications regulatory regime. We issued a major
discussion paper on telecommunications issues last week to assist in setting
agendas for progress in this area.
Pensions and allowances
Section 51 of the DDA states that any discriminatory provisions in the
Social Security Act and a range of other benefits legislation are exempt.
The necessity for and effect of this exemption is not clear, since in
any event the DDA only makes discrimination unlawful in the administration
of Commonwealth laws and programs, rather than the terms of laws or the
extent of programs. At this point HREOC is not aware of any pressing reason
to review this exemption.
This is distinct however from the need for continuing review of social
security support for people with disabilities to ensure that the right
to an adequate standards of living is ensured and that income support
arrangements facilitate rather than presenting barriers or disincentives
to participation in employment and education.
Migration exemption
HREOC is concerned that the very wide immigration exception in the DDA
leaves people with disabilities and their families without sufficient
protection against unreasonable decisions to refuse entry to Australia
because of disability.
If these decisions are to remain exempt from the DDA HREOC would like
to see improved criteria and procedures within immigration law in relation
to admission of people with disabilities.
Combat duties and peacekeeping
HREOC considers that the inherent requirements exception in DDA section
15 is sufficient to deal with issues in this area, without additional
special purpose exceptions for combat duties and peacekeeping.
Temporary exemptions
HREOC views the temporary exemption power as an important tool to promote
equality where organisations are seeking some protection from complaints
while acting to overcome barriers to access. We are aware of but do not
agree with contrary views in some submissions. We would like to promote
wider take up of the exemption mechanism as a means of encouraging industry
or enterprise based strategies to achieve greater access and inclusion.
Domestic duties in the employer's home
A number of submissions recommend removal of the exception in section
15 for domestic duties in the employer's home. This was not discussed
in HREOC's initial submission but we agree there is a need for review
of the rationale for such an exception.
Disposition of land by will or gift
One submission raises concerns that the exception for discrimination
in disposition of land by will or gift operates not simply to safeguard
freedom of disposition for donors or testators but also protects discrimination
by executors or administrators. This issue was not discussed in HREOC's
initial submission but we agree that review of the basis and breadth of
this exception would be justified.
Definitions of discrimination
We support views expressed in many submissions that the DDA should contain
an express statement of the duty to make reasonable adjustments. This
has been a major object of standards development processes, but we agree
that a reasonable adjustment provision in the Act itself would also be
appropriate and could do some of the work that the draft employment standards
in particular were intended to do.
We also think that the existing definitions of discrimination would benefit
from some revision.
Our submission indicates that the definition of indirect discrimination
was borrowed from the Sex Discrimination Act and that that definition
has been simplified but the DDA definition has not.
We also note uncertainty about which concept of discrimination should
apply to less favourable treatment because of behaviour which is a manifestation
of a disability:
- whether this is less favourable treatment because of the disability,
so as to come within the concept of direct discrimination; - or whether these instances can only come within the concept of indirect
discrimination (either because less favourable treatment because of
behaviour should not be regarded as occurring because of the disability,
or because the appropriate comparator is a person without a disability
who behaves the same way).
If direct discrimination is applicable in this situation, there is a
question of what limits there are on obligations to make adjustments:
since there is not an express unjustifiable hardship or reasonableness
limitation within subsection 5(2), and unjustifiable hardship defences
in substantive provisions do not cover all situations where such a defence
might be relevant. These issues are presently before the High Court of
Australia in Purvis v State of NSW. Review of the definition of discrimination
may be required in the light of the decision in this case but we think
it is premature to put forward possible revised definitions of direct
discrimination before the result in that case comes out.
We also note that while the substantive provisions of the DDA cover discrimination
against associates, the definitions of discrimination do not adequately
reflect this.
One other gap, which we regard as a drafting error rather than a result
of any decision, and which should be remedied if the definitions of discrimination
are being revised, is that the DDA covers proposed acts of direct discrimination
but not proposed indirect discrimination.
Unjustifiable hardship and costs of reasonable adjustments
HREOC considers that unjustifiable hardship or an equivalent concept
is appropriate to include in the DDA as a means of balancing the rights
of other parties with measures to achieve the rights of people with disabilities.
A number of submissions call for changes to the unjustifiable hardship
defence so that such a defence should not operate in a winner take all
or final manner and should where possible trigger a requirement to apply
for an exemption and/or lodge an action plan. It is not clear how the
DDA could empower a court to make orders against a party who has been
found not to have done anything unlawful. HREOC endorses however the aim
of ensuring that as far as possible the DDA promotes positive action.
The reference to action plans in section 11 on unjustifiable hardship
was included with this intent. We would support consideration of possible
changes to the hardship provision to encourage positive measures.
The second reading speech for the DDA indicated an intention to apply
unjustifiable hardship as a general defence. We do not think there are
any strong reasons of principle for this defence not applying in some
areas, although it would clearly be much harder for the Commonwealth Government
than for a small business to demonstrate unjustifiable hardship.
Unjustifiable hardship, like reasonableness, is a fairly open ended concept
and thus does not give definite answers in advance to whether particular
measures are or are not required. We have sought to use the development
of disability standards and the temporary exemption power to give additional
certainty, although HREOC has not been prepared to grant exemptions simply
to certify unjustifiable hardship without some indications that an exemption
will advance the objects of the Act.
Clearly, how far unjustifiable hardship operates in practice to limit
progress towards achievement of the objectives of the DDA will be affected
by the presence or absence of public sector support for organizations
to take measures to increase accessibility and inclusion. As we said at
the outset we think there is a case for increased incentives for actions
to increase accessibility and inclusion on competition policy grounds
of expanding access in consumer and labour markets as well as on other
social policy grounds.
Harassment
Our submission notes that the number of complaints of harassment has
been limited and that there may be a need for more definition on what
constitutes harassment and on an employer's duties in preventing harassment.
We note the draft education standards as a possible model in this area.
We also note a number of submissions calling for clearer and wider coverage
of harassment, including from the Queensland AntiDiscrimination Commission
which has experience in administering a more general harassment provision
in practice.
Requests for information
This provision of the DDA has also been very little used in complaints.
Our submission notes problems with the drafting of this section including
lack of clarity about how it applies to standard questions. We agree with
submissions that section 26 of the Northern Territory AntiDiscrimination
Act provides a suitable starting point for redrafting this provision in
permitting disability related questions only for legitimate purposes.
However we also emphasise the need not to discourage appropriate discussion
of disability issues so that employers and others should only face an
evidential burden of showing a legitimate purpose for questions rather
than a legal onus of proof.
Objects of the DDA
The first object of the DDA refers to eliminating discrimination. We
note that there could be benefits in adding the more positive objects
of promoting equality of access and participation in the areas concerned
as this would better present the broad purpose of the DDA.
Equality before the law
We note in our submission that the object of promoting equality before
the law is not reflected very comprehensively in the substantive provisions
of the DDA and that the DDA has had limited impact in this area, although
there is some scope for existing provisions to be used more than they
have been in addressing some equality before the law issues.
Effectiveness in eliminating discrimination
Our submission acknowledges a lack of formal evaluation to date, but
points to our tenth anniversary publication on achievements which does
highlight some major areas of progress, notably public transport, as well
as some areas where progress is harder to identify, in particular the
employment area.
We note that development of standards on some issues should make evaluation
of progress against those standards easier in future.
Effectiveness in promoting recognition and acceptance
We note surveys indicating high levels of general acceptance of human
rights of people with disabilities as deserving protection but also note
that it is harder to measure how far this translates into recognition
acceptance or understanding of rights in specific contexts.
Alternative means for meeting objectives
In HREOC's view, in most instances other ways than discrimination law
to achieve the objects of the DDA should be approached as additional means,
rather than as alternatives or substitutes. This applies in particular
to possible expansion of economic incentives; reporting mechanisms; and
improved information provision on how to achieve non-discriminatory outcomes.
Relationship between DDA and other legislation
As noted earlier, it may be appropriate to consider revision of the current
exception for actions in direct compliance with other laws, to cover actions
consistent with but not positively required by another law. This could
provide a less elaborate mechanism than development of standards for certifying
provisions of another law as a code for DDA purposes where appropriate,
and possibly providing an incentive for revision of disability equality
elements of other laws.
Overlap between DDA and State and Territory antidiscrimination legislation
HREOC does not see overlapping jurisdiction as creating major problems.
The importance of national coverage has been demonstrated by development
of national strategies for improved access and equity in several areas
under the DDA including transport, building access and banking.
Where both federal and local law apply and are in similar terms the effect
of overlapping coverage is to give complainants a choice of jurisdictions
in which to seek a remedy. Possible problems presented by overlapping
coverage of the DDA and State and Territory discrimination have lessened
in recent years with most jurisdictions now having coverage and definitions
very similar to those of the DDA. The most significant areas of divergence
we point to are in relation to standards (with state laws providing no
clear mechanism for recognition of federal standards) and exemptions (where
Federal and State bodies may make different decisions on essentially the
same matter despite consultation which occurs between HREOC and State
bodies).
Co-operative arrangements
In HREOC's view renewal of co-operative arrangements for complaint handling
would not be justified. An important benefit of handling of DDA complaints
by HREOC is to enable more ready identification by HREOC of issues emerging
from complaints requiring a national response.
Administration of the DDA complaint function by HREOC does not in our
view have major adverse effects on access to remedies for discrimination
around Australia, in view of the presence in all jurisdictions of local
law substantially equivalent on most points to the DDA, and measures undertaken
by HREOC to ensure accessibility of DDA processes.
Omnibus legislation
Our submission indicates that we do not see consolidation of federal
discrimination laws into omnibus legislation as having any clear benefits
to offset the loss of profile for disability issues given by specific
legislation. Review of different laws for consistency or other improvements
in drafting could occur without consolidation.
Disability standards
Our submission emphasizes the importance of authoritative standards in
specifying what the access required by disability discrimination laws
actually means in practice and the capacity of standards to provide a
structure for compliance over time.
The potential disadvantage that rights set out in the DDA will be diminished
provides a reason for the extensive consultative processes conducted in
standards development to this point.
HREOC does not see any justification for the power to make disability
standards being more restricted in its scope than the coverage of the
substantive provisions of the DDA. Whether standards are the most appropriate
mechanism for addressing discrimination in any area covered by the DDA
should be decided on the merits instead of being constrained by available
regulatory powers.
In relation to standards development, disability community and industry
representatives alike have raised concerns in standards processes to date
regarding needs for an adequate research basis to ensure that specifications
where adopted are appropriate. This issue can be minimized but not avoided
by adopting performance and principle based standards.
Monitoring of standards
HREOC already has a function of reporting on the implementation of standards.
The impact of this function however is likely to be limited by lack of
resources relative to the potential task.
Monitoring and enforcement of standards through or by HREOC should not
be regarded as the only possible means of monitoring and enforcement.
We do not agree with calls in some submissions for HREOC to have the major
role in monitoring detailed compliance with accessibility standards in
areas such as public transport or access to premises. In our view it is
preferable for disability issues as far as possible to be "mainstreamed"
through existing regulatory and self regulatory structures.
Guidelines
HREOC sees guidelines as providing a useful advisory role but not as
a complete substitute for standards since they are not legally authoritative.
Action plans
Our submission indicates that we would support consideration of making
action plans mandatory at least for government bodies. It should be noted
however that the DDA is not the only possible route in this respect -
NSW and Western Australian government agencies are subject to statutory
disability planning requirements of those jurisdictions while South Australia
has similar commitments at a policy level.
Industry self regulation
Despite concerns expressed in some submissions HREOC does see potential
for industry codes and procedures, as well as other regulatory regimes,
to take a greater role in eliminating and providing remedies for disability
discrimination. Industry codes might not be written exactly as we would
write them but they may well have broader effect than the power of the
DDA or HREOC alone could achieve.
The existing temporary exemption power provides one means for DDA recognition
of these approaches and HREOC intends to encourage industry bodies to
make greater use of this power for this purpose in future. There may also
be justification for amendments to facilitate recognition of industry
codes and procedures.
Complaints
HREOC acknowledges concerns raised about the complaints process in submissions.
However, we would also note that our own surveys of people who have actually
used the complaints mechanism indicate that most people find HREOC's conciliation
service accessible and valuable.
Limitations of complaint based processes are the reason for provision
of other mechanisms in the DDA including standards but we would emphasise
that in some areas, such as public transport, a small number of complaints
have had very wide impacts.
Representative complaints
Use by disability community organisations of the representative action
procedure has been limited to date. A number of important cases have involved
representative actions but others with equally broad systemic significance
have been brought by individuals.
In some areas covered by the DDA cases, a successful complaint will almost
inevitably have a systemic impact whether it is brought on an individual
or representative basis. Access to a public transport service, building,
automatic teller machine, or world wide web page, becomes available to
everyone with the same needs once it has been achieved for one person.
In these instances there is little additional benefit in using the more
complicated provisions for representative actions.
There may be more advantage in use of the representative procedure in
areas where outcomes in individual complaints are not being reflected
in broader systemic change. There have been suggestions that this is occurring
on some issues in insurance and in education. We are not clear though
that providing for organisations to lodge complaints in their own right
rather than on behalf of aggrieve persons as at present would increase
use of the legislation.
Costs jurisdiction in courts
Numerous submissions raise the prospect of costs being awarded against
unsuccessful complainants in court as a barrier to use of the legislation.
We acknowledge that these are real concerns for many people and organisations.
HREOC agrees that there should be scope for review of the impact of the
potential for costs to be awarded, and for options to reduce this impact
in public interest matters.
However, HREOC's reviews of complaint experience since the introduction
of the Human Rights Legislation Amendment Act 1999 indicates that overall
the rate of use of the DDA and the rate of conciliation of complaints
has not in fact showed significant adverse change. Potential costs in
the small number of matters that are taken to court do not provide an
adequate explanation for limited use by advocacy organisations of the
DDA at the HREOC stage where costs do not apply.
Initiation of complaints by HREOC
Our initial submission supports consideration of reinstatement of the
self start power but we also acknowledge the need to deal with perceptions
of conflict of roles between this and conciliation of complaints, although
there is a separation of roles between the President who is responsible
for conciliation and the Commissioner who would be expected to have the
self initiation power.
Publicity for complaint outcomes
HREOC publishes summaries of conciliation outcomes including in its Annual
Reports, on its website, and in its recent report on the first ten years
of the DDA. More high profile publicity for complaint outcomes achieved
through the conciliation process is only undertaken or attempted with
the agreement of the parties so as not to discourage parties from entering
into conciliated agreements.
Educational role
A number of submissions call for improved information and education on
the DDA, including
- Information for complainants and potential complainants
- Information for non-English speaking background people
- Information for employers
- Information for business
- Information for local government
HREOC supports the need for effective education and awareness and seeks
to achieve these aims within limited resources.
HREOC does not have and does not expect to have in the immediate future
funds to conduct a further large scale information campaign in this area,
although it intends to continue information provision within available
resources, including through co-operation with business organisations
and through low cost distribution of its own information and information
from other sources through its Internet site.
Most effect in gaining public attention for disability discrimination
issues has been through complaint outcomes in a small number of cases
involving Commission or court decisions and through public inquiries.
Public inquiries
Public inquiries have been one of the major means for promoting awareness
and compliance with the DDA. These have been conducted at HREOC's own
initiative; in response to selected complaints raising systemic issues;
on exemption applications; and at the request of the Attorney General.
The fact that a complaint involves a matter of public interest does not
by itself mean it needs a public inquiry by HREOC. In many cases the standard
HREOC complaint handling process may be just as or more appropriate for
resolving the particular complaint.
The need for broader community input sometimes makes a HREOC public inquiry
approach desirable, but it may often be equally or better able to be addressed
by disability organisations seeking input themselves before the making
and during the running of complaints.
Challenges
A basic challenge to the effectiveness of the DDA is its restricted scope
as discrimination legislation rather than as more general human rights
legislation.
Within the scope of discrimination legislation, there are also issues
presenting challenges.
In particular development of new technologies presents new opportunities
for achieving access and participation for people with disabilities but
can also present new barriers.
How to improve the overall operation of the DDA?
HREOC continues to view development of disability standards in appropriate
areas as an important means for improving the operation of the DDA.
As also noted already the temporary exemption power has potential for
significantly greater use than it has had to date in managing transitions
from discriminatory to non-discriminatory practice.
HREOC would also support provision of a greater range of regulatory tools
under the DDA including a more direct and positive power to certify other
codes and standards.
As also noted already it appears timely to examine reinstatement of HREOC's
power to initiate consideration of a matter under the DDA as if a complaint
had been received.
A critical gap in the machinery for achieving the objects of the legislation
appears to be the lack of any coordinated or large scale mechanism for
ensuring that employers, service providers and others with responsibilities
under the legislation have ready access to information on practical solutions
to access and inclusion issues, and any systematic government support
for research into access and inclusion issues where clear solutions are
yet to be identified (including for the purposes of standard setting).
Approaches in other jurisdictions
Our initial submission noted the accessibility rules for equipment procured
by government which exist in the USA. We would also support consideration
of overseas experience with employment equity legislation referred to
in submissions from several State anti-discrimination bodies.