Recognition matters: Human rights and the rights of carers
Disability Rights
Recognition matters: Human rights and the rights of carers
| Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner Carers Australia national conference |
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Introduction
Allow me to begin by acknowledging the Ngunnawal people, the traditional
owners of the land on which we meet.
Many of you perhaps already know that the word Canberra actually means
meeting place in the language of the first people of this country.
For thousands of years, Aboriginal groups, who might spend much of their
time living far apart in the expanses of this land, pursuing separately
the business of survival, would come together at times to meet, to trade,
sometimes to resolve differences, but also to exchange knowledge for mutual
benefit.
Even in this age of the internet and other forms of almost instant global
communications it is still important to meet face to face. So I very much
appreciate the opportunity to be here.
Need for discussion
Opportunities to meet and work together can be hard to come by.
In December 2001 I hosted a summit for peak disability organisations
to discuss how far we had come in implementation of the Disability Discrimination
Act and more broadly in advancing human rights for people with disabilities.
We wanted to meet to review and assess the most effective strategies
for using the DDA to achieve the elimination of disability discrimination;
and to work on formulating an appropriate agenda, priorities and plans
of action for implementation of the DDA in its second decade - for HREOC
and for other organisations.
At that meeting we discussed papers from most national disability peak
advocacy and representative bodies as well as from our own staff. Unfortunately,
Carers Australia was one of the small number of peak organisations which
although invited was not able to attend or contribute a paper.
Resources and priorities for carer representation
I am not being critical in referring to this. I understand very well
the resource limits which affect community organizations in trying to
deal with a host of issues affecting their constituencies, and the pressures
faced by people working as unpaid representatives, while managing the
demands of having a disability or having a carer role and also trying
to maintain work and family and other roles.
I hope that the new National Family Carers Voice organisation which has
been announced by the Minister for Family and Community Services will
be appropriately resourced and will effective in bringing together ideas
and expertise from across the disability and carer community, including
in considering how to advance human rights and equality more effectively
for carers and people with disabilities.
I have written to the Minister offering every co-operation with this
new body.
I am also aware of course that the Human Rights and Equal Opportunity
Commission and the legislation it administers is not always at the centre
of the world or at the top of the priority list for other organizations.
It is not hard to see how issues of day to day survival can leave little
room for consideration of the uses and limitations of discrimination law.
But I do want to take the opportunity today to open up some discussion
of what use carers have made or could make of human rights and discrimination
laws and what possibilities there might be for making these laws more
useful to you in future.
The Disability Discrimination Act and HREOC role
Let me start with an overview of the Disability Discrimination Act and
the role of the Human Rights and Equal Opportunity Commission in relation
to it. I apologise to those of you who may already be very familiar with
this. I want to start with this introductory discussion for two reasons.
First, there is some evidence that many people in the carer community
are not as familiar with disability discrimination law and its application
to them as they would like to be.
Soon after the DDA was passed HREOC assisted Carers Australia in producing
a booklet "The DDA: it's there for carers too".
It might be useful if this or a similar resource specifically for carers
was made available on the internet. That is something we would be happy
to arrange, in addition to the extensive materials already available on
HREOC's website. I would also be happy to have more discussion here of
other possibilities for improving availability of information.
Second, even for those who do already have some of this information,
it may be useful to go back to the basics of what the law does before
we try to discuss how to use it more effectively or how the law might
be changed to be more effective.
The Federal Disability Discrimination Act (or DDA) was passed in 1992
and came into effect in March 1993.
Areas covered
The DDA makes it against the law to discriminate in the following areas
of life :
- Employment
- Education
- Access to premises used by the public
- Provision of goods, services and facilities
- Accommodation
- Buying land
- Activities of clubs and associations
- Sport, and
- Administration of Commonwealth Government laws and programs.
Definition of disability
The definition of "disability" in the DDA is intended to be
broad and includes physical, intellectual, psychiatric, sensory, neurological,
and learning disabilities.
The DDA covers a disability which people:
- Have now,
- Had in the past (for example: a past episode of mental illness),
- May have in the future (for example: a family history of a disability
which a person may also develop), or - Are believed to have (for example: if people think someone has a disability
or illness because they are a carer for someone who has that disability
or illness).
The DDA also covers people with a disability who may be discriminated
against because:
- They are accompanied by an assistant, interpreter or reader,
- They are accompanied by a trained animal, such as a guide or hearing
dog, or - They use equipment or an aid, such as a wheelchair or a hearing aid.
Coverage of carers and other associates
The DDA also protects associates of people with a disability such as
family, friends, carers and co-workers if they are discriminated against
because of that relationship.
For example, it would be unlawful discrimination if:
- A parent is refused a job because the employer assumes he or she will
need time off work to look after a child with a disability - People are refused access to a restaurant because they are with a
friend who has a disability; - Lack of physical access for a family member prevents a carer and other
family members from enjoying a night out together, if access could have
been provided without unjustifiable hardship - A carer of a person with a disability is refused accommodation because
of his or her association with the person with a disability.
Complaint process
The main mechanism provided by the DDA for dealing with discrimination
is the complaint process.
Complaints can be made:
- by a person directly affected by discrimination (for example if you
have experienced discrimination yourself as a carer) - by a person acting on behalf of another person who has been discriminated
against (for example a carer can complaint about discrimination experienced
by the person they are caring for) - by a person on behalf or him or herself and on behalf of other people
who have experienced the same discrimination (this is what is meant
by a representative complaint or class action); or - by an organisation acting on behalf of members or constituents who
have been discriminated against .
Compared to other legal processes, there are very few formal requirements
for discrimination complaints. Complaints do need to be put in writing
but people who have difficulty with this can ask Commission staff to assist.
Complaints can now also be made by email.
In some circumstances the Commission can also assist complainants to find
other supports they might need, like an interpreter or advocate. A network
of disability discrimination legal services was funded by the federal
Attorney-General's Department from the outset of the legislation and there
are also specific legal services focused on mental illness, HIV/AIDS and
intellectual disability.
The complaint should state that the person has been discriminated against
on the basis of disability, and it should describe what happened, when
and where it happened, who was involved, and give the names of any witnesses.
HREOC will investigate any complaints received that are within its area
of responsibility.
If it appears that disability discrimination has occurred, the person
or organisation will be asked to participate in a conference with a conciliator
and the complainant in order to help resolve the matter to the satisfaction
of both parties. This is called conciliation.
Depending on the complaint, conciliation may result in:-
- changes in policies or practices
- job reinstatement or promotion
- an apology
- withdrawal of the complaint
- payment of damages, and/or
- some other outcome.
Where a complaint cannot be resolved by conciliation, you can take your
complaint to the Federal Court for an enforceable ruling if you choose
to.
Only a very small proportion of complaints end up in the Federal Court.
Of the complaints which are found to be within our jurisdiction a large
majority are resolved by conciliation.
State and territory laws
State and Territory discrimination laws have similar provisions on disability
discrimination to those contained in the Disability Discrimination Act.
Some such as the New South Wales legislation have also had added some
specific provisions on rights of people with carer responsibilities.
I am aware of some suggestions that overlapping discrimination laws have
led to confusion in the community about which legislation to use. In most
things in life, though, it is better to have a choice than not to. Our
complaints inquiry staff or their equivalents in the State and Territory
bodies are willing and able to discuss these choices.
Achievements in using the DDA
In March this year I released a publication to recognise achievements
in the first ten years of the DDA.
This publication is available free on our website or in print and other
formats on request. It discusses outcomes of complaints, as well as results
of other processes under the DDA which include development of standards
and guidelines, conducting inquiries and other activities to promote public
awareness of disability issues.
Some of the achievements highlighted were:
- Thousands of disability discrimination complaints have been dealt
with. - Standards for accessible public transport have been adopted and already
widely implemented. - Telecommunications access has improved for deaf people and other people
with disabilities. - Negotiations on standards for improved access to buildings and education
are in the final stages, and there are many practical instances of improved
access in these areas. - Captioning of television programs has increased, with further increases
being negotiated - and now recently announced. - There has been widespread adoption by the banking and financial service
industry of standards for disability access to ATMs, internet banking,
EFTPOS and phone banking. - Hundreds of service providers, particularly local governments and
universities, have developed voluntary action plans for improved disability
access.
Effectiveness for carers
Some of these achievements should improve things for carers as well as
for people with disabilities directly. Obviously for example the whole
family is affected if one of you cannot get onto the bus or into the restaurant,
and will benefit once these access barriers are removed.
Implementation of standards under the DDA really will change the world
- or at least Australia - for people with disabilities and their carers
over the next 20 years or so in these areas of transport and building
access.
A number of important complaints have also been brought by carers on
behalf of a family member with a disability.
At the same time, there are indications that carers have made relatively
limited use of the legislation and that some issues of particular interest
to carers have not advanced as much as others.
Limits of the DDA
Some limits relate to the fact that a discrimination law is not the same
as a comprehensive law on rights and entitlements for people with disabilities
and carers.
For example, although of course I am aware of the significance of the
current debate around review of carer payments by the Commonwealth Government,
the Disability Discrimination Act does not give us jurisdiction to take
complaints about the provisions of the Social Security Act.
More generally, while the DDA is aimed at ensuring that people with disabilities
and their associates including carers have non-discriminatory access to
services and facilities and opportunities, the legal concept of discrimination
at least as we have it at present is not the same thing as services or
programs being inadequate or missing despite the impact this can have
on human rights.
We do not have a comprehensive Bill of Rights in this country which
might guarantee rights to adequate accommodation and other supports. Even
in most countries where there are Bills of Rights, rights protected are
mostly restricted to "liberty rights" such as free speech and
fair trial rather than extending to positive rights to secure an adequate
standard of living.
A Bill of Rights might also confer greater protection against inequality
in decision making in the legal system itself, possibly providing an avenue
for carers to raise concerns which some people have identified in areas
such as guardianship and financial decision making. But as I have said,
a bill of rights is not part of our legal system.
What we do have though is discrimination laws, and there may be scope
for those to be used more extensively than they have been so far on issues
like people with disabilities having the same range of choices in accommodation
as other people. I would be happy for organisations or people interested
in these issues to have further discussions with my office.
Productivity Commission review
A large scale review of the effectiveness of the effectiveness of the
Disability Discrimination Act and possibilities for improving it is going
on at the moment.
The Productivity Commission was asked by the federal Assistant Treasurer
to conduct this review. It has involved public hearings in all capital
cities and an invitation for public submissions which has resulted in
225 submissions from individuals and organizations so far.
HREOC has made two major submissions, one responding to the inquiry issues
paper and one commenting on issues raised in submissions by other organisations.
Those submissions and links to other documents in the inquiry are available
on our website.
Carers Australia has made a submission to this inquiry.
That submission notes limited use of the legislation by or on behalf
of carers. It raises the issue of limited awareness of the legislation
which I have already mentioned.
In common with a number of submissions from other carer organizations,
the submission from Carers Australia also refers to difficulties for carers
in using complaint based legislation to achieve change given other demands
on them.
Limitations of complaint based processes are the reason for provision
of other mechanisms in the DDA, including development of standards. But
I would again emphasise that in some areas, such as public transport,
a small number of complaints have had very wide impacts.
We are aware that many people find the idea of any legal process daunting
and demanding. However, surveys of people who have used the complaints
mechanism indicate that most people who use it find the Commission's conciliation
service accessible and valuable. The current review by the Productivity
Commission may well help in finding ways to improve this service further
and also to make the legislation more effective in other ways.
Role for Commissioner in taking cases to court?
Many submissions to the Productivity Commission inquiry supported a role
for the Disability Discrimination Commissioner or the Commission in taking
action under the DDA instead of relying only on people affected by discrimination
having to make complaints.
There are some obvious difficulties both in legal terms and in terms
of people on the receiving end of complaints if the body which is meant
to deal impartially with complaints is itself making complaints to itself
on the same issue. These difficulties led to the removal in amendments
made in 1999 of a self start complaint power originally included in the
DDA. I am however interested in further discussion of possible options
in this area if these problems of legal process and perceptions can be
addressed.
One possibility might be that rather than the Commissioner making complaints
to the Commission, the Commissioner might be empowered to initiate proceedings
directly in the court - in the way that the Australian Consumer and Competition
Commission can under the Trade Practices Act.
This might not necessarily raise any greater issues of bias in our role
than the existing function of intervening in legal proceedings initiated
by other people - although it could present other issues in terms of available
resources to perform such a role.
Reasonable adjustment in employment
One area where improvements to the DDA could come out of the Productivity
Commission inquiry could be in making clearer what the duties are of employers
and others in accommodating responsibilities of carers.
The DDA contains a principle of "reasonable adjustment" in
employment and other areas. However it does not spell out this principle
or what it means in practice in black and white. It might be that the
legislation would be more effective in promoting equality and participation
for carers if there was some spelling out of duties to accommodate carers
in matters such as flexible working arrangements.
Intervention in Australian Industrial Relations Commission
in work and family test case
As I have already mentioned, the DDA does provide other mechanisms for
achieving change alongside the complaint process.
One of these mechanisms is a function of intervening in court proceedings
that involve discrimination issues.
At the moment the Commission is considering intervening in the Australian
Industrial Relations Commission in the Work and Family test case. The
Australian Council of Trade Unions has put forward a range of proposals
in relation to family responsibilities including expanded award based
rights regarding parental leave. They also propose an award based right
for employees to request a variation in the hours worked, the arrangement
of the hours worked, or the place of work to accommodate caring responsibilities,
which the employer cannot unreasonably refuse.
In response industry groups have put forward proposals aimed at providing
employees with flexible working arrangements, where agreed to by the employer
rather than as a matter of award based rights. These proposals include
provisions for job sharing, increased provision for part time and casual
work, and increased flexibility in taking leave.
We would not necessarily be intervening to support one side against another
in these proceedings. But it may be important to ensure that the Industrial
Relations Commission is made aware of the relevance of this case to carers
of people with disabilities and not only to people with responsibilities
for young children.
Under the DDA, inflexible working conditions may amount to indirect discrimination
against carers of people with disabilities if such conditions impact on
or disadvantage greater numbers of carers relative to people who are not
carers and are unreasonable in the circumstances.
It seems obvious however that employers and employees alike would be
better off if these issues can be dealt with appropriately through the
industrial relations system rather than having to be resolved through
perhaps large numbers of complaints under the DDA.
Conclusion
We would like to see all sections of the disability community achieving
the most out of the legislation - including carers.
The goals I see for the next ten years of the DDA are simple to state,
however challenging they may be to achieve:
- To continue the expansion of opportunity and access for people with
disabilities and the elimination of disability discrimination across
Australia - To keep moving forward in areas of success, such as transport and
access to premises, while seeking more effective strategies in other
areas such as employment and for sections of the disability community
who are benefiting less than others from the legislation.
Policy processes including public inquiries, negotiation of standards,
and shaping legal precedents through the intervention and amicus curiae
functions, will remain highly important to these goals.
However, the main driver of change towards a more accessible and equal
Australia remains the complaint process and the ability of people with
disabilities to use it effectively to pursue their own aspirations.
I would like to encourage you to discuss further with me - here today
- or my staff - by email through our website - ways that we can make the
DDA work more effectively for promote the human rights of carers and people
with disabilities. Thank you.