Annual Report 2002-2003: Chapter 5
Human Rights and Equal Opportunity Commission: Annual Report 2002 - 2003
Chapter
5: Disability Rights
- Acting Disability Discrimination
Commissioner - Promotion of awareness, understanding
and compliance - Research and policy
- Exemptions
- Action plans under the Disability
Discrimination Act - Legislative reform and assessment
- Speeches
Acting Disability Discrimination
Commissioner
Dr
Sev Ozdowski OAM commenced duty as Acting Disability Discrimination Commissioner
in December 2000 in addition to his duties as Human Rights Commissioner.
In April 2003 the Attorney-General announced an extension of this acting
position until 3 April 2004.
Statement from the Commissioner
In last year’s annual
report I noted that we had reached the tenth year of operation of Australia’s
Disability Discrimination Act (DDA). It would be easy for people with
disabilities and their families who may live with daily realities of discrimination
and lack of adequate services and support to become discouraged and take
the view that little change for the better is occurring. So it seemed
important to make this anniversary a focus for promotion of awareness
of disability discrimination issues and progress in addressing them.
In March I released ‘Don’t judge what
I can do by what you think I can’t’, a publication outlining
achievements using the DDA. An initial launch was held in Sydney on 3
March, with events also held in all other capital cities and Alice Springs.
The Attorney-General provided a supportive video message to launch the
publication.
In each city, a forum conducted after the launch examining
achievements and challenges (with particular focus on the areas of transport
and employment), produced very useful discussion. The events were well
attended by disability community representatives, as well as people from
a range of areas of government and service provision. I particularly appreciated
the participation and support of our colleagues from state and territory
equal opportunity commissions at these events.
The last year has seen some particularly significant
achievements with the entry into force of the first Disability Standards
under the DDA, on accessible public transport, and good progress made
towards adoption of standards on access to premises and education, as
well as agreement in principle (still to be formally announced at the
time of writing) to substantial increases in captioning of broadcast television
for deaf and hearing impaired Australians, and progress in work between
the insurance industry and mental health sector organisations.
I am very aware that while we have made advances on
some issues there remain many more human rights issues facing people with
disabilities which require increased attention from government, industry
and the community. I hope that current consideration within the United
Nations of an international convention on human rights and disability,
and consultations within Australia in this context, may provide opportunities
for increased attention to and accountability for the rights of people
with disabilities.
A focus for discussion of achievements in using the
DDA as well as areas where progress has been more limited is being provided
by the review currently being conducted by the Productivity Commission
on the effectiveness and impacts of the DDA. We have dedicated substantial
resources to contributing to this review in recognition of its importance
as an opportunity for independent evaluation of strategies in eliminating
discrimination, and for directing attention to possible improvements in
the legislation and its implementation.
This review has again highlighted equal opportunity
in employment as an area of particular concern where leadership and additional
resourcing from government may be required. Finding effective strategies
in this area will be a continuing priority for the Commission in the coming
year in consultation with government, business and the disability community.
Deputy Disability Discrimination Commissioner
Mr Graeme Innes AM continued to serve on a part-time
basis throughout 2002–03 as Deputy Disability Discrimination Commissioner.
This position was created from funding using internal savings made in
the Commission’s disability policy area.
Promotion of awareness, understanding
and compliance
As noted in the Commissioner’s statement,
a major focus for work in this area was provided by the tenth anniversary
of the DDA and the release and promotion of a publication recognising
achievements using the DDA, distributed in print and other formats as
well as through our website. Other work has continued to focus on development
of accessibility standards in consultation with industry and community
representatives as detailed below. Commissioner Ozdowski and staff also
undertook more general consultations with disability organisations and
relevant industry bodies to ensure they are aware of possibilities for
constructive use of the legislation and to discuss suggestions for further
projects.
Left to right: Michele Castagna, Dr Sev Ozdowski and Matthew Turner
at the launch of Don’t Judge What I Can Do By What You Think
I Can’t: ten years of achievements using Australia’s
Disability Discrimination Act in Alice Springs, March 2003. Photo courtesy
of Dorothy Grimm, Alice Springs.
Major speeches given during 2002–03 are published
on the Commission’s website and a list of significant speaking engagements
is provided in this report. Public use of the disability rights area of
the website continues to increase with 582 093 hits being recorded for
the disability rights web pages in this period, compared to just over
400 000 hits in the previous year. A revised information pamphlet on the
DDA was made available this year and other publications are also distributed
in print and other formats on request.
The Commission undertakes research and policy projects
and activities to promote the objects of the Disability Discrimination
Act.
Discussion of possible international convention
A working group of the United Nations General Assembly
is considering a possible International Convention on Human Rights and
Disability. The Commission has participated as part of the Australian
delegation to the first and second sessions of this process, which led
to a decision in June 2003 to proceed with the preparation of a draft
convention. As part of consideration of the proposed convention Commissioner
Ozdowski accepted sponsorship from the British Council to attend a workshop
for national human rights institutions from Commonwealth and Asia-Pacific
nations in New Delhi, India, in May 2003, which produced agreed resolutions
for work by national institutions in support of consideration of a convention.
Productivity Commission Inquiry
On 5 February 2003 the Government announced an Inquiry
by the Productivity Commission into the Disability Discrimination Act.
The Inquiry is required to report by 5 February 2004 (since extended to
5 April). The Inquiry is to examine the social impacts of the legislation
on people with disabilities and on the community as a whole and consider
the degree to which the objectives of the legislation (including eliminating
discrimination on the grounds of disability) have been achieved. It will
also examine the legislation’s impact on competition and whether
amendments to the legislation are warranted.
The Commission considers this a valuable opportunity
to assess the effectiveness of the legislation and to examine possibilities
for achieving the objects of the DDA more effectively. We have provided
a substantial initial submission and at the time of writing a second submission
commenting on issues raised in other submissions was close to being finalised.
Access to electronic commerce
The Commission has continued to assist government and
industry bodies to develop initiatives in this area, including through
an Accessible E-commerce Forum sponsored by the Commission and the Australian
Bankers’ Association (ABA). This has included work to review implementation
by banks of industry accessibility standards and continuing discussions
with the ABA on accessibility in new technology and service areas such
as Smart Cards.
Access to tertiary education materials
Following a forum convened by the Commission in May
2002 to discuss provision of study materials in accessible formats (audio,
Braille, E-text and large print) for university students with a print
disability, we have been participating in work by a steering committee
on these issues with the Australian Vice-Chancellors’ Committee,
the Department of Education, Science and Training, and Blind Citizens
Australia. We have also been participating in a specific working group
on copyright and publishing issues involving the Attorney-General’s
Department, Australian Publishers’ Association, Copyright Agency
Limited and the Australian Copyright Council.
Accessible housing
The Commission provided support in April 2003 to a
national Accessible Housing Forum sponsored by the Australian Building
Codes Board. The forum brought together representatives from the Australian
Network for Universal Housing Design, the housing industry and designers
and an agreement was reached on the need to develop a national strategy,
including a research program on housing accessibility. The Commission
has participated in subsequent discussions on how to move forward on agreed
outcomes from the forum.
Assistance animals
A discussion paper to further the consideration of
possible legislative or regulatory action to give better definition to
rights and responsibilities in this area has been prepared and was due
to be released for consultation soon after the time of writing this report.
Television captioning
As a result of a forum chaired by the Commission
on captioning of free-to-air television arising from a number of complaints
in this area, free-to-air broadcasters have agreed to implement increases
in captioning levels over the next five years to 70 percent compared to
current levels of around 40 percent. In May 2003, broadcasters applied
for, and were granted, a temporary exemption under the DDA in relation
to captioning levels on the condition that they implement this proposal
and participate in a review of possibilities for further increases.
A similar forum on captioning of pay television services
is now making progress with the industry commencing a review of priorities
for captioning within existing technical constraints.
Insurance
Cooperative work in which the Commission has been assisting
to improve the insurance industry’s approach to mental health issues
has made progress with the release in February 2003 of a memorandum of
understanding between the Investment and Financial Services Association
and mental health sector stakeholder organisations (the Mental Health
Council of Australia, the AMA and professional bodies for psychiatrists,
general practitioners, and psychologists). The memorandum states a shared
commitment to improved communication and education; improved complaint
resolution; and improved underwriting and claims practice, including release
of draft guidance notes due by June 2003.
Sterilisation
The Commission has continued to consult with the Attorney-General’s
Department and with disability community organisations on actions to follow
from the review of developments since the release of the 1997 report on The Sterilisation of Girls and Young Women in Australia, commissioned
by the Disability Discrimination Commissioner and Sex Discrimination Commissioner
and released in April 2001.
Submission to human genetic information Inquiry
The Commission made a submission to the Australian
Law Reform Commission’s Inquiry on protection of human genetic information,
supporting the Inquiry’s proposal that genetic discrimination issues
should continue to be dealt with within the regime of existing discrimination
laws, including the DDA.
Telecommunications
In June 2003, the Commission released a major discussion
paper on disability access issues in telecommunications, highlighting
gaps in service provision and regulation. The Commission plans to convene
a high level forum on telecommunications issues in late 2003 after interested
parties have had an opportunity to consider this discussion paper.
Under section 55 of the Disability Discrimination Act
the Commission has power to grant temporary exemption from provisions
of the Act which make discrimination unlawful. The Commission’s
policy on exemption applications is obtainable on the Commission’s
website or on request.
The Commission views temporary exemption as an
important mechanism for managing the process of transition over time from
discriminatory and inaccessible systems and environments to inclusive,
accessible non-discriminatory systems and environments. Exemption processes
are open to public participation, through publication online of the Commission’s
notice of inquiry and details or text of applications, and through publication
of submissions from interested parties.
Civil aviation safety
In November 2002, the Commission granted a five-year
exemption from sections 19 and 29 of the DDA, and from sections 18 and
26 of the Sex Discrimination Act, to persons acting pursuant to existing
Civil Aviation Regulations regarding medical fitness, or pursuant to currently
proposed amendments to those regulations. The exemptions apply only where
a person’s pregnancy (for the purposes of the SDA) or disability
(for the purposes of the DDA) prevent the person safely fulfilling the
inherent requirements of the role covered by the licence concerned. This
decision means that while the DDA and SDA will continue to provide a safety
net against overly restrictive decisions or regulations, correct decisions
to refuse licences will not be unlawful.
City hall access
An application for exemption regarding Toowoomba
City Hall was refused by the Commission in February 2003. The application
discussed difficulties and expense in making this venue accessible to
people with disabilities. An exemption was sought to ensure that public
use of the theatre is lawful pending works at some future point to make
it accessible.
The Commission noted that expense and difficulty of
providing disability access in the short-term would be available to argue
as a possible unjustifiable hardship defence in the event of complaints,
but that it is not appropriate to use the exemption power in section 55
of the DDA simply to certify unjustifiable hardship. Clearly the objects
of the Disability Discrimination Act may be promoted by granting exemptions
in return for commitments to improve access over time. However, in this
instance there was not any definite commitment to providing access within
a definite time in return for an exemption.
Broadcast television captioning
A five-year exemption regarding levels of captioning
provided was granted in May 2003 to free to air television broadcasters
on condition that they implement their proposals for increases in captioning
during the exemption period.
Regional aircraft access
An application by AirNorth for exemption regarding
carriage on smaller aircraft of passengers requiring wheelchair access
was under consideration at the time of writing.
Bus access – unrestrained wheelchairs
An application from Westbus Ltd for temporary exemption
regarding carriage on buses of unrestrained and unoccupied wheelchairs
(the passenger having transferred to a fixed seat), referred to in the
2001–02 Annual Report, was withdrawn. This exemption application
sought clarification of relevant safety issues which remain under discussion
through the Accessible Public Transport National Advisory Committee.
Action plans under the Disability
Discrimination Act
As at 30 June 2003, 276 plans were registered with
the Commission (increased from 228 in June 2002), comprising 34 business
enterprises, 27 non-government organisations, 31 Australian Government,
37 State and Territory Government, 105 local government organisations,
and 42 education providers. The register of Action Plans and those plans
provided electronically to the Commission (221 of the total) are available
through the Commission’s website. This assists other organisations
interested in developing their own plans and individuals interested in
assessing the effectiveness and implementation of an organisation’s
Action Plan. A number of organisations have also submitted revised plans
or implementation reports during 2002–03.
Legislative reform and assessment
Disability Standards
The Disability Discrimination Act provides for
‘Disability Standards’ to be made by the Attorney-General
in specified areas, which currently include: accommodation; administration
of Commonwealth laws and programs; education; employment, and; public
transport. Contravention of a Disability Standard is unlawful under the
Act.
The Commission supports adoption of Disability Standards
which offer potential to increase certainty and clarity of rights and
responsibilities for relevant parties and thereby advance the objects
of the Act.
The Commission has a function under the Disability
Discrimination Act to advise the Attorney-General regarding the making
of standards. To date, the Commission has performed this function through
practical participation in standards development processes rather than
by way of formal reporting.
Access to premises
The Commission has continued to work intensively
with the Australian Building Codes Board, and industry, community and
government members of the Building Access Policy Committee (established
by the Board), towards the development of a Disability Standard on access
to premises. This would permit adoption under the Act of content developed
by the mainstream building regulatory regime and would provide industry,
local government and other parties with a clearer and more coherent set
of rights and responsibilities.
Work on the proposed content for the DDA Premises Standard
and new Building Code of Australia is almost complete and work has commenced
on the required Regulation Impact Statement (RIS) on the proposed standard.
All documentation required for the public comment period scheduled for
early 2004 will be completed and made public before the end of 2003. The
Commission will be taking every opportunity over the rest of this year
to make presentations at relevant conferences and fora on the changes
due to take place.
Education
A taskforce of the Ministerial Council on Employment,
Education, Training and Youth Affairs have developed draft Disability
Standards on education. The Commission has been providing advice to participants
in this process. As at June 2003, a decision by the Ministerial Council
on whether to proceed with adoption of the standards was pending, following
discussions on costs and benefits.
Employment
Development of Disability Standards on employment did
not advance significantly during 2002–03, with standards development
efforts again being concentrated on the areas of access to premises, public
transport and education.
Public transport
Disability Standards for Accessible Public Transport
were approved by the Parliament on 23 October 2002. The Commission looks
forward to regular reports on implementation being made available through
the Australian Transport Council.
A selection of public addresses made by Commissioner
Ozdowski and Deputy Commissioner Innes during 2002–03 are listed
below and are available online at www.humanrights.gov.au/disability_rights/speeches/speeches.html
Is placement of young people with high support
needs in nursing homes a breach of their human rights?: National
Conference on young people in nursing homes, Melbourne 17 June 2003.
Promoting the rights of people with disabilities: Towards a new United Nations Convention, International Workshop for National
Human Rights Institutions from the Commonwealth and Asia-Pacific Region,
New Delhi, India, 26–29 May 2003.
Promoting productive diversity: Telstra/Diversity
at Work forum, Melbourne 16 May 2003.
Launch of Telecommunications Industry Ombudsman
disability action plan, Melbourne, 14 March 2003.
Disability Discrimination Act tenth anniversary
forums and publication launch: Sydney, 3 March; Brisbane, 6 March;
Hobart, 13 March; Melbourne, 14 March; Perth, 19 March; Adelaide, 20 March;
Alice Springs, 24 March; Darwin, 25 March; Canberra, 28 March.
Enabling access: launch of disability awareness resources
for local government, Salisbury, SA, 19 February 2003.
DDA tenth anniversary award: Human Rights Awards ceremony,
Sydney, 10 December 2002
The DDA and its impact in education (Deputy Commissioner Innes), Pathways Conference, Sydney, 1 December 2002.
Opening address, 2nd Victorian State
Conference for disability direct support workers, Melbourne, 28 November
2002.
Presentation of Municipal Association of
Victoria Access Awards (Deputy Commissioner Innes), Melbourne, 22
November 2002.
Disability and human rights: NSW Local
Government and Shires Association without prejudice Conference, Sydney,
14 November 2002.
Excellence and inclusion: Seminar on
equal opportunity in higher education: University of Southern Queensland,
12 November 2002.
Using the DDA for equal communications access: Deafness Forum of Australia annual general meeting, Sydney, 19 October
2002.
Human rights and people with intellectual disabilities:
where to from here? Inclusion International Congress, Melbourne,
24 September 2002.
DDA Standards and Regulation Impact Statements:
Context and Process (Deputy Commissioner Innes) Disability Studies
and Research Institute Seminar, 19 July 2002
6th National Deafblind Conference, Sydney 12 July 2002.
Launch of Workcover South Australia Disability Action
Plan, Adelaide, 4 July 2002.