Workshop on using the Disability Discrimination Act effectively

Workshop on using the Disability
Discrimination Act effectively

David Mason, Director, Disability Rights policy, HREOC

Disability with attitude conference: University of Western Sydney, 17
February 2001

Let me first pass on regrets from Sev Ozdowski that he was not able to
be here as planned. He very much wanted to attend this as the first major
disability conference since he commenced duty as Disability Discrimination
Commissioner at the end of last year - but he had surgery this week that
meant he could not travel.

I am not going to present a long paper on strategic approaches to disability
discrimination. We only have limited time today and this is intended as
far as possible to be a practical workshop where we get practical work
done.

What I would want to say about history and strategy is contained in the
first half of Elizabeth Hastings' "Foundations" paper from 1997 and in
Graeme Innes papers late last year to the Physical Disability Council
of Australia and to the "Constructing law and disability" conference.
If you have not read them yet I suggest you do. They are on our web site
of course, and available in other formats on request

But I do need to give a brief introduction.

When the DDA was being drafted in 1991, complaint processes were seen
by government, community and HREOC as insufficient to achieve large scale
change. Some of the evidence for this was the general ineffectiveness
of the disability provisions of State discrimination laws up to that point
in achieving much systemic change. On the basis of United States experience,
standards were seen as the main feature of the DDA which would make a
difference - by allowing industry wide or issue wide results to be negotiated
with broad community and industry participation instead of complaint outcomes
only involving and applying to the immediate parties to those complaints.

10 years on, no standards are in place. Transport standards are - we
are assured - very close to authorisation, and there may be some progress
on building issues this year, but the picture on other issues is not very
encouraging. The community and the Commission alike have devoted a large
share of our time and energy over the last 7 years to negotiations towards
standards in several areas. I still regard standards as important where
they can be achieved but - even more than Elizabeth Hastings did in 1997
- I think there needs to be a reassessment of priorities in where time
and effort are directed.

Often, the driving force that brings other interests to the table to
negotiate standards, and keeps the negotiations moving forward, is complaints
or the threat of complaints. The same is true for the "mini-standards"
processes we have applied to a few issues using the power to grant a temporary
exemption on conditions. And of course there are some issues - like telecommunications
or many other areas of service delivery - where DDA standards are not
legally provided for; and other issues where standards may be legally
possible but have not been achieved and may not be achieved in the near
future. On these issues complaints remain not just the initial strategy
but the only game in town.

So we need to give more attention to effective use of the complaints
process.

Not that complaints have been ignored in our efforts so far. The Commission's
disability complaints team has always had as many staff as the policy
section, and currently has several more. The DDA legal services - whose
funding we helped to negotiate - have twice as many staff between them
as I have available for standards and other policy work.

The issues as I see them are:

• how many systemically important complaints are being made and
• what is being done with them when they are made.

We receive between 300 and 400 complaints under the DDA each year. One
way to look at those numbers is to say, wow, that's more than usually
come in under the Sex or Racial Discrimination Acts, clearly people with
disabilities are aware of the legislation and how to use it. But that's
not the conclusion I draw.

400 complaints are really nothing in proportion to the number of complaints
that could be made. Almost any one person with a disability could come
up with that many discriminatory barriers or incidents experienced in
a year. Then multiply that number by 3 million people . At times it seems
that we see more emails and conference papers complaining about the effectiveness
of the DDA or of HREOC, than we see complaints under the DDA to actually
put the legislation into effect.

Of the complaints that are made, most are brought by "ordinary" individuals,
often seeking a purely individual remedy. Of course there is nothing wrong
with people making those complaints. My point is that most complaints
are not made by or through organisations or by well informed activists
as part of a strategy of eliminating discrimination on a large scale.

40% of complaints are brought about employment issues for example. A
small number of these raise major systemic issues. But most do not. Many
are from people in effect seeking review of workers compensation decisions
- of limited significance to anyone beyond the individual concerned.

I have to say also that very small numbers of complaints are brought
through the Disability Legal Advocacy Services, and few enough of those
complaints that do come from these services appear to have been selected
for any major systemic impact rather than on the basis of who happens
to come through the door.

I want to start some discussion about why we are not seeing more complaints
being made, and more complaints which are designed to have some strategic
impact, and what do we do about it. I hope we can get beyond general expressions
of dissatisfaction or loss of faith or whatever about the Commission and
the legislation - we've seen those - and start looking at what the Commission
or others should be doing differently.

One initiative already underway to address limits of individualised private
processes in dealing with broad community issues is the public inquiry
approach to complaints. A summary paper on public inquiries has been circulated
here. Much more extensive material including the proceedings of inquiries
so far is available on our web site. Suggestions for further development
or refinement of this process would be welcome.

But to conduct inquiries into complaints, HREOC - or any other discrimination
agency which might pick up this approach in future - needs to be receiving
suitable complaints in the first place. Also, the public inquiry approach
is not going to be appropriate or available for anywhere near every complaint
and I'm sure isn't the only initiative we ought to be considering.

So, what else?

More information and training? Lots of money and time has been invested
in information provision about the DDA and how to use it. I'm thinking
of the Manual for advocates and the large amount of information available
through our web site. The limited results in terms of complaints received
in return suggest that more of the same is not the only answer we need
to think about.

More advocacy? I think we do need to look at effective use of existing
the DDALAS resources by the community. This is not something that HREOC
can control or direct, however.

Making it easier to complain: Something which is more within HREOC's
power to change, though, may be making it easier to complain. I'd like
to get reactions today - or by email over the next few weeks if you want
to think about it a bit more - to a few ideas. I'd also like any additional
ideas in this area which we ought to be putting forward for consideration
by the President and the staff within the Commission who have responsibility
for complaint handling:

1. Email complaints: Would you, or your organisation or its members,
be more likely to make complaints by email than the current procedure
of lodging written complaints by post?

2. Would "fill in the blanks" complaint forms for different issues -
like a "defect notice" for premises access issues - result in more complaints,
or more effective complaints, than the present single standard HREOC complaints
form (which is not compulsory to use but is the only form we provide)?

3. Is your organisation interested in assistance in developing a standard
"just sign here" complaint on a few priority issues?

4. Is your organisation interested in a more "hands on" workshop session
on how to turn priority issues into complaints?

5. Do you or your organisation have access to a web site or other means
where you could - if you wished - publicise the fact that you have made
a complaint and what's in it?

6. What else is holding people back from more active use of disability
discrimination complaints?