Understanding Disability Discrimination

Understanding
Disability Discrimination : Life, Investment & Superannuation Association
of Australia

Speech given by Elizabeth Hastings, Disability Discrimination Commissioner 1993-97 at the Second Annual Summit, Canberra, 23 May 1997

Introduction

Thank you for inviting me to
speak to you today.

The topic I have been asked
to address is "Understanding Disability Discrimination". In some ways
I think I have been asked to teach my grandmother to suck eggs (though
I am sure my own venerable forebear did no such thing!). I would say that
there is no industry more skilled in the art of disability discrimination
than the insurance and superannuation industry. Before you decide I am
irretrievably biased against your work let me explain that, of course,
I understand such discrimination is the basis of your enterprise. You
must work out the acceptable risk, the chance of this potential disability
being more likely than another, or that combination of circumstances more
debilitating and costly than another, in order for your industry to make
sense at all. The difference in our perspectives is not disability discrimination
per se, but lawful and unlawful discrimination on the basis of disability.

Relevant Provisions
of the Act

The Disability Discrimination
Act, which has now been in effect for over four years, has three main objects:
first, to eliminate, as far as possible, discrimination against people on
the ground of disability in various areas of life; second, to ensure, as
far as practicable, that people with disabilities have the same rights to
equality before the law as the rest of the community; and, third, to promote
the recognition and acceptance within the community of the principle that
people with disabilities have the same fundamental rights as the rest of
the community.

The "various areas of life"
I just mentioned include employment, education, access to premises, public
transport, sports, accommodation and real estate, banking and finance;
and the provision of goods, services and facilities - and that includes
the insurance and superannuation industry. Although the focus today is
on you as providers of goods, services and facilities, please remember
that you may also be employers and managers, or have other relevant relationships
with people who have disabilities, and the DDA applies in those areas
also.

Discrimination is defined
in the Act as "disability discrimination" in section 5, or "indirect disability
discrimination" in section 6, and both concepts are relevant to your work.
Section 5 states that disability discrimination has occurred if a person
treats or proposes to treat the aggrieved person less favourably than,
in circumstances that are the same or not materially different, the discriminator
treats or would treat a person without the disability. Circumstances are
not seen to be materially different simply because different accommodation
or services may be required by the person with a disability.

Most complaints under the
Act concerning insurance and superannuation would fall into the direct
discrimination basket in that in general you would be refusing or restricting
cover because of the disability. The question to be considered in the
management of such a complaint would be whether the refusal or restriction
was reasonable in the circumstances and therefore not an unlawful act,
or not reasonable and so an unlawful act.

Indirect disability discrimination
has occurred if the discriminator requires the aggrieved person to comply
with a requirement or condition (a) with which a substantially higher
proportion of persons without the disability comply or are able to comply;
and (b) which is not reasonable in the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
An example of this may be the requirement that a person have a driver's
licence for identification: this would indirectly discriminate against
a person who is legally blind, or a person who by reason of some other
disability was not able to drive.

Furthermore, section 10 states
that if an act is done for two or more reasons and one of these, whether
or not it is the dominant or a substantial reason, is the disability of
the person, then for the purposes of the Disability Discrimination Act
the act is taken to have been done for that reason.

Complaints and
Hearings

I thought I'd get the jaw-crunching
legal jargon over in one go so I can now be more poetic and lyrical as I
try to bring to life the application of these provisions to your industry.

As Disability Discrimination
Commissioner I am responsible for the handling of all complaints under
the Act, and for the promotion of the objects of the Act. In complaint
handling there are certain threshold questions which must be asked: if
the alleged event has occurred, does it constitute unlawful discrimination
within the terms of the Act? Has there been less favourable treatment?
Was that treatment because of the disability? Was it reasonable in the
circumstances? Is there a condition or requirement imposed which has a
differential and negative effect on a person who has a disability? Are
the special services or adjustments required by the person who has a disability
reasonable under the particular circumstances, or would they constitute
an unjustifiable hardship for the service provider?

Sometimes these questions
can be answered on the face of the information available, and sometimes
the matter is in sufficient dispute to require referral for a hearing
and decision by the Commission or, when the amending legislation is passed,
by the Federal Court. I consider the hearing and decision process essential
to the clarification of the law, to the teasing out of the meaning of
such concepts as "unjustifiable hardship" and "inherent requirements".
This clarification is necessary not only for those whose rights are protected
by the legislation, but also for those who have the obligation to comply
with it. As in all similar situations there are ambit claims made by each
party, and eventually a balance must be achieved within the provisions
and objects of the law.

Such a balance requires the
recognition by each party of the experience and legitimate expectations
of the other. It requires, for example, the recognition that your industry
is just that - a profit making business, not a welfare service provider.
You and your shareholders have a legitimate expectation of adequate returns
on your investments. At the same time, people who have disabilities are
equal citizens of this country and have a legitimate expectation of access
to the goods and services you offer and advertise so attractively.

Of the complaints under the
Act, by far the largest number relate to employment (approximately 42%)
and to access to premises, goods, facilities and services (around 37%).
The next largest group is complaints relating to education, and then insurance
matters. So far there have been about 50 complaints about refusal or limitation
of insurance cover of various kinds, and the number being lodged with
the Commission is rapidly increasing. Feedback from the community leads
me to anticipate even more complaints in this area as diverse advocacy
and representative groups continue to educate their membership about their
rights under the DDA.

The two complaint categories
of education and insurance are, oddly, very similar in their typical pattern
of progress: there is investigation then, if the matter is not declined,
a failure or refusal of conciliation, referral for hearing by the Commission,
and confidential settlement immediately before or during the hearing.
This settlement usually consists of granting to the complainant the service
or facility that was refused in the first place. In both cases I think
the interested sector is reluctant to allow a tribunal to dictate policy
or practice. The result of this pattern is that there is as yet little
development of case law in either area. Essential concepts such as "reasonableness"
and "unjustifiable hardship" have not been teased out and the clarity
that emerges from decisions, and from appeals from decisions, is not yet
available to us.

When I refer a matter for
hearing I am often hoping that at last there will be some guidance on
these difficult areas, but alas! this is not, at least so far, to be.

Industry Considerations

In the absence of such guidance,
let me now consider some of the considerations that arise in your industry,
and issues to be taken into account as you seek to comply with the Act -
which I hope you do! I have read an address given by Alister Bayston to
this meeting last year in which he reached the conclusion that the best
risk management strategy against a disability discrimination complaint is
compliance. Mr. Bayston went on to say that this would be facilitated by
industry guidelines, reviewing of current underwriting practice, and development
of an Action Plan. This is all very sound advice, which I am about to give
you again.

Nearly all the complaints
received by the Commission concerning insurance are made under section
24 of the Disability Discrimination Act. Section 24(1) makes it unlawful
for you to refuse to provide goods or services, or to discriminate in
the terms or manner in which you provide goods or services, to a person
with a disability.

Section 46

Insurers are singled out as one
of the very few groups given special consideration under the Act (the other
two are charities and the armed forces). Section 46 of the Act provides
that insurers and providers of superannuation may in certain circumstances
be exempted from liability for what would otherwise be unlawful discrimination.
This is a special concession to your industry but not a blanket protection.
To gain the protection of the section you must come within its wording.
To begin with, the exception only applies if you are refusing to offer a
person with a disability an annuity, a life insurance policy, an accident
or other policy of insurance or membership to a superannuation provident
fund or provident scheme, or if you are discriminating against them in the
terms upon which you are offering any of these products.

If your discrimination relates
to any other activity, for example employment or access to your premises
or information, then the fact that you are engaged in the business of
superannuation or insurance is irrelevant and you are subject to sections
of the Act prohibiting discrimination on the grounds of disability in
the same way as any other employer or business enterprise.

To be protected by section
46 you must also show, if your discrimination is based on actuarial or
statistical data, that it is reasonable for you to rely on this data and
that you have acted reasonably having regard to content of the data and
other relevant factors. If there is no actuarial or statistical data reasonably
available to you then you must demonstrate that your discrimination was
reasonable taking into account all other relevant factors.

At various times it has been
suggested that the representatives or advocates of people with disabilities
should provide your industry with data to support their assertion that
they should be given access to insurance cover. It is, however, a legal
principle with exceptions clauses in legislation that the onus of proof
is on the person who wishes to rely on the exception. That is, in the
handling of any complaint whether at the stage of preliminary investigation
or at hearing, it is up to your industry to prove that your decisions
come within the exception, not for the complainant to prove that they
do not.

If you cannot satisfy these
tests you fall outside the exception given to insurers under section 46
of the Act and you may be liable for unlawful discrimination in the provision
of goods or services under section 24. The only defence you may then have
is if you can establish that providing the goods and services to the person
with a disability would cause you unjustifiable hardship. In determining
unjustifiable hardship all relevant circumstances must be taken into account,
including the effect of the disability; the nature of the benefits and
detriments likely to accrue or be suffered by the person with a disability;
your financial circumstances and the estimated costs involved in your
providing the goods or service; and whether you have lodged an Action
Plan with the Commission.

I have gone into section
46 in some detail because it is often cited as a blanket exception for
any decision made by an insurance underwriter. This it is not.

Information Upon
Which it Reasonable to Rely

Now this question of actuarial
or statistical data is one with which your industry must eventually get
to grips. The use of underwriting manuals has been explained to me: I understand
that they have been built up over many years from data derived from insurance
experience, expert opinion and medical studies from around the world, and
that they are the foundation of underwriting practice in Australia. I believe
AMP is the only insurance company in Australia to have its own company manual,
and I am conscious that the development of such manuals is a lengthy and
probably expensive enterprise. Nevertheless, it may need to be done in order
that the statistical and actuarial tables from which you work are appropriate
for decision making within the Australian legislative context, and can be
reliably used as a defence to a complaint.

Manuals based on an insurance
experience which excludes the experience of insuring people who have disabilities
are manuals with a gap. They do not include the relevant data, yet are
used to make decisions about the absent group.

It is at this point in discussions
that I am usually regaled with an anecdote to illustrate that the decisions
are usually correct anyway. I then produce a counter-anecdote to demonstrate
that such a decision may not be correct. Indeed, for every insurance disaster
anecdote you can provide, people with disabilities can provide a story
about a person who had a disability and could have been insured for a
thousand years without making a claim. It seems to me that duelling with
"anecdotes at 40 paces" is not going to be an efficient way to approach
this issue!

The fact is that your industry
does not possess information, or at least not sufficient information,
about the realities of insuring people with disabilities. Now I must say
at this point that under the legislation the word "disability" means a
wide range of conditions including some which are life-long and stable,
and others which are rapidly progressing. It includes blindness from birth
as a result of over-oxygenation and adult onset blindness which results
from diabetes or injury; it includes cerebral palsy and the results of
stroke; it includes cognitive and intellectual disabilities of all kinds
and acquired brain injury; it includes deafness and psychiatric illnesses.
It includes work injury, HIV+ status, and other infectious diseases.

Clearly when I am talking
to you about "disability" I am aware that some of these conditions will
be greater insurance risks than others, and it may not be unlawful discrimination
to refuse to cover them. However to refuse insurance to a healthy young
man or woman who has lived since birth with a non-degenerative blindness
and who now seeks to protect his or her family may be unlawful. Do you
have actuarial data to substantiate the commonly held assumption that
this person is more likely to die early, or have a serious accident, than
any body else? Certainly people who are blind may make insurance claims:
the question is not are they represented at all in your claim statistics,
but are they over represented? Only if they are over represented can you
legitimately refuse or modify their cover, but your reinsurance manuals
do not, I think, give you these data. Most of the information in these
manuals is based on data about so-called standard people insured at standard
rates; because people with disabilities are generally excluded from obtaining
insurance these records do not provide adequate guidance on risk assessment.

At a meeting in November
with representatives of your industry we discussed this problem of lack
of information. It was agreed that some of the discrimination may be prevented
if insurers were to give full consideration to the individual's life,
work history and previous accident history rather than to generalized
assumptions. This would require some training of staff, and perhaps a
more personalized assessment than may be common over the counter, and
may be a topic covered in DDA guidelines for insurers, which I shall come
to later.

If in any specific complaint
you wish to rely on a defence of unjustifiable hardship under

section 11, information about
the complainant's life, work history and previous accident history are
among those things that must be considered, which include "the effect
of the disability" and "all relevant circumstances of the particular case".
It would therefore behove you to take such information into account in
the first place.

It was also suggested at
the meeting that funding may need to be found by the industry for a project
to gather information appropriate to the requirements of the Disability
Discrimination Act. One possibility was the obtaining of agreement from
a number of insurers to share the risks of insuring a group of people
with a particular disability in an attempt to begin the collection of
data. Given that anti-discrimination legislation in relation to disability
exists in only a few countries, it is probable that the best way to get
the information you need is to conduct the research yourselves. Certainly
the more time that passes the less reasonable will it seem to the Commission
or to the Federal Court that your industry does not support its decisions
with proper statistical information. Another major profit making industry,
the pharmaceutical industry, does spend significant time and money on
actuarial and statistical research: it is possible and should be considered.

Commercial Judgement

I have been told about various
"historical and fundamental practices" which underpin your industry. One
of these, it has been suggested, is your right to exercise commercial judgement
in respect of existing ailments because many claims occur not as a result
of an inability to work, but rather as a result of changed circumstances
such as retrenchment, change in job requirements, or other events associated
with the vagaries of modern working life. It would be more appropriate,
and more in keeping with Australia's anti-discrimination legislation, that
when a person with an existing disability or ailment is seeking insurance,
exclusions relating to these circumstantial changes be written into the
cover rather than that the person be refused insurance. In the current uncertain
employment environment I imagine this might apply whether or not an applicant
has an existing disability or ailment.

I am also told that there
are risks associated with the fact that many members of our society are
willing to commit insurance fraud, a risk category commonly referred to
as "moral risk". I accept that to ignore such a risk is to ignore reality,
but I certainly do not accept that people who have disabilities present
a higher "moral risk" than do other members of the community, simply by
virtue of having a disability or ailment.

It has been suggested to
me that insurers protect policy holders against the risk of fraudulent
claims and consequent raised premiums by limiting the amount of insurance
cover available and by excluding from contracts existing medical conditions
that could form the basis of a claim. I am told that "these exclusions
are applied not in the expectation that the condition will, in all probability,
lead to disability but rather that the risk could be used as the basis
of a claim based on a change in circumstances, or a simply fraudulent
claim". This is a direct quote from an explanation I was given about commercial
judgement. As it stands this explanation is fair and square section 5
direct disability discrimination. It is exactly the same as saying to
members of any racial or ethnic group: "We've had trouble with your kind
before, you can't come in here", or to a woman: "You may go off and get
pregnant, no we will not employ you". I would suggest that a more appropriate
commercial judgement would be to stop that kind of decision making forthwith!
It is unlawful.

Your industry will need to
work out some other way to protect itself from fraudulent claims than
the easy, cheap and unlawful route of excluding people who have ailments
or disabilities "just in case". I am quite sure that numerous anecdotes
could be produced to support such a practice, but any number of anecdotes
do not an actuarial, statistical or legal defence make. Again, people
with disabilities could produce an equal number to demonstrate their honesty,
reliability and longevity.

Use of Expert Opinion

Another fundamental industry
practice is the use of expert opinion to assist underwriters to assess overall
risk, particularly where there is more than one ailment or condition. Of
course such expert opinion would be basic to much of your decision making
and the Act has nothing to say against this where the medical opinion is
appropriate. However not all disabilities are medical conditions or require
the attention of a doctor. Furthermore a person with a stable, perhaps from
childhood, disability such as deafness is, I would suggest, no more likely
than any other person to develop further disabilities or illnesses. Indeed,
persons who have lived with their disability for a very long time may well
be less likely to have accidents as they have learned to be very alert to
what is happening around them. Blind people, for example, are specially
trained in environmental safety: when you observe the stupidity of many
pedestrians you may be forgiven for thinking everybody should be subjected
to such training! People with other disabilities have often given more consideration
to the ergonomics of their work environment than the average person, and
are consequently less likely to develop extra work related disabilities.

Some types of disability
may be more problematic for actuaries and statisticians to draw conclusions
about, but there should nevertheless be more substance to your decision
making than anecdote or tradition. One in five people in Australia, for
example, have received treatment at some time in their lives for a mental
illness of some kind. Many people experience an episode of depression
for which they take medication or have some other psychological intervention
and from which they recover with no expectation of recurrence - such an
episode may be related to work stress, bereavement, the burning down of
a house, the illness of a loved one, or any other "slings and arrows of
outrageous fortune". Other conditions, such as certain types of epilepsy
or diabetes, once unpredictable in their prognosis and expression, are
now largely controlled by medical intervention and supervision. In all
such areas you will need to be able to support your decisions in the event
of a complaint.

All human beings are in the
lottery for cancer, heart disease, stroke and the "thousand natural shocks
that flesh is heir to". There is, as far as I know, no reason to believe
that someone who was born with cerebral palsy is more likely than anybody
else to develop, say, cancer later in life, and such an applicant for
insurance should be subjected to no more screening than is required for
everybody in relation to family background and personal history. If, indeed,
there is reason to believe there is a greater chance of this co-morbidity,
this should be evidenced through statistics not anecdote. Again, the fact
that someone with a disability makes a claim relating to some other ailment
is not automatic proof that the group is a greater risk - there must be
a disproportionate number of claims in from this group in relation to
their incidence in the community, and in comparison to other insured persons,
before you can lawfully refuse or limit cover.

Again it becomes clear that
underwriters must begin to consider the individual making the application,
not some vaguely appreciated class of disability to which that person
may belong. As well as medical opinion it may be appropriate to seek the
expertise of other professional groups such as occupational therapists,
physiotherapists, mobility trainers and so on.

You will see from my examples
that I am not suggesting people with active disease processes are a good
risk, though in some cases for some kinds of insurance such as temporary
travel insurance or house insurance, they may well be. Disability comes
so many forms, and is lived with in so many ways by so many different
people: indeed, 18% of the population has a disability even by the conservative
definition used by the Bureau of Statistics. There may be a difference
in life experience and attitude between those who have lived with their
disability since childhood and those who have developed one later in life
perhaps as a result of illness or workplace negligence. All research shows
that people with what may be termed "traditional" disabilities such as
blindness, post-polio paralysis, cerebral palsy, deafness, intellectual
disability and so on are reliable workers who take less sick leave than
their colleagues, have fewer absences, fewer work accidents or injuries,
and stay in one work place longer than do other workers. It follows that
they make fewer accident insurance claims, fewer income protection insurance
claims, and are less of a drain on the superannuation funds! Why then
is there this suspicion that they are a poor risk?

It this knowledge about themselves
and about their colleagues that produces such outrage when insurance applications
are refused, or offered only with higher premium.

I note a comment in the latest
Annual Report of the Superannuation Complaints Tribunal that. of all the
complaints received during the year within jurisdiction, the ones that
have caused the most controversy are those disability matters requiring
medical evidence, over which the Tribunal has had jurisdiction since November
1995. Clarification of this area as soon as possible will clearly be of
benefit to the whole industry.

As you see, we come once
again to the necessity for this industry in this country to begin to accumulate
the facts and figures which will enable you to make reasonable decisions,
and which will give access for people with disabilities to the benefits
and services of the insurance industry.

Time Lines

I was the representative of the
Attorney-General on the public transport disability Standards steering committee
which, after much negotiation, discussion and inevitable compromise on various
sides, produced a draft Standard deemed by the Australian Transport Council
to be a technically feasible method of providing accessible public transport.
(The draft is now undergoing a Regulation Impact Statement process.) Built
into this Standard is an implementation schedule within which those items
that are most easily accomplished will be done within one or three or five
years; those which are the most difficult to achieve have a time line of
twenty years, with extensions possible in cases of demonstrated unjustifiable
hardship.

I am also involved in giving
advice to the revision of the Building Code of Australia currently being
undertaken by the Australian Building Codes Board. The BCA is concerned
only with new buildings, however there is still the matter of existing
buildings to be considered: it is highly likely that there will be some
long time line for this area also, as it is not possible to convert every
building all at once.

In relation to your industry
statistics and actuarial data, it is clearly necessary to take the time
that it takes to develop such a resource for your decision making, it
cannot be done faster than it can be done. If it could be demonstrated
that the research was under way this would be taken into account in the
investigation and hearing of complaints. Of course, despite the requirement
in the legislation for appropriate actuarial data, you may assert that
medical science is so fast moving now that such tables are obsolete even
before they are finished. If this is so, then you must rely on "taking
into account all other relevant factors" as referred to in section 46.
In either case it is necessary that you begin to collect information about
insured lives and other relevant factors which would influence and support
underwriting decisions. Given that there is no doubt that this takes time,
you may be well advised to develop an Action Plan.

Action Plans

An Action Plan that complies
with section 61 of the Act is a strategy for changing those practices of
any provider of goods, services or facilities which might result in discrimination
(intentional or unintentional) against people with disabilities. It will
result in the elimination as far as possible of discrimination from your
services, will minimize consumer complaints to the Commission, and should
increase market share by making access more widely available to people with
disabilities. If, as people with disabilities contend, a significant number
of potential customers are good risks, then enabling them to use your services,
to make inquiries, and to take out policies must be of benefit to both parties.

An Action Plan must include
provisions relating to: a review of current practices with a view to the
identification of any that may be discriminatory; the devising of policies
and programs to achieve the objects of the DDA; the setting of goals and
targets against which the success of the plan in achieving those objects
might be assessed; the means of evaluating the policies and programs;
allocation of responsibility within the organisation; and communication
of these policies and programs.

I have spoken enough about
the need for appropriate information upon which you can base your decisions
about whether or not to insure any individual applicant. There are other
matters relating to your industry where there may be direct or indirect
discrimination on the basis of disability. One that springs immediately
to mind is the accessibility of your premises: an Action Plan could contain
a schedule for upgrading your facilities including front door access,
internal layout such as height of counters, visibility and readability
of signs and notices, accessible toilets where these are provided to the
public, and so on. Another area is accessibility of information: do you
have information available upon request in alternative formats such as
plain English or audio tape; do your offices have a TTY telephone for
the deaf; are the forms that must be filled in by applicants available
in alternative formats such as large print or electronic format? A solution
may be as simple as ensuring that your HTML mark up and Home Page on the
Internet is formatted in a way that does not exclude people who are blind
and who use special readers and scanners for electronic communication.
Such an adjustment requires about half-an-hour's careful consideration
before preparing a document for the Internet. I have put some (appropriately
formatted!) draft guidelines on our own Home Page for community comment,
and you may wish to refer to these.

Then there is the accessibility
of your service in terms of staff training and awareness of the particular
requirements of people with different disabilities, such as those with
a speech impairment or intellectual disability.

All these areas, and many
more as they say in the ads, are the legitimate province of an Action
Plan. They are also the legitimate province of a complaint. This is why
it would be a good idea for your industry to consider the development
of such Plans. The very best way to do this is to develop a reference
group of people with disabilities who may be users of your services and
who can assist you both in identifying inadvertent barriers to access,
and in developing solutions.

If an Action Plan has been
lodged with the Commission it will be taken into consideration in the
handling of a complaint, and at a hearing. The existence of an Action
Plan, if communicated to your customers or potential customers who have
disabilities, will in any case reduce the likelihood of complaints being
lodged: people who have disabilities are busy people too - if they know
a particular office is to be upgraded for accessibility according to some
reasonable schedule of works, then they are not likely to waste time with
a complaint. Of course, they may try to negotiate moving a particular
office up the list!

I have now received about
40 Action Plans from a wide range of businesses and corporate service
providers including Telstra, the ABC, several local councils, universities
and small business. I am currently assisting a major industry association
to develop a model Action Plan for use by its constituents. It would seem
to me that your industry could either leave Action Plan development to
individual insurance companies, or individual agencies, or you could consider
developing a model for the industry which would assist your membership
to work towards discrimination free service delivery and the production
of Action Plans at whatever level was considered appropriate. My office
would be most willing to assist you in the development of a model Action
Plan; indeed we are at the moment preparing seminars on this topic.

An Action Plan is not a complete
defence against a complaint, and a Plan which merely sits on a shelf in
some manager's office is no defence at all. An Action Plan is evidence
of good faith and good intention, and should contain a schedule for implementation
and evaluation so the Commission and any consumers with disabilities,
as well as the service provider, can be assured that there is Action after
the Plan.

Industry Guidelines

The Human Rights and Equal Opportunity
Commission has as one of its functions the issuing of guidelines in areas
covered by the legislation. At my November meeting with representatives
of your industry, and of people with disabilities, it was agreed that the
Commission should begin preparing draft guidelines which would be circulated
for comment prior to another meeting of relevant stakeholders and organisations.
This is now in progress and I am hoping to have a draft available within
a few months. In the first instance these guidelines will probably take
the form of practice notes, with particular focus on the section 46 exception
in the Act, and on what would constitute reasonable information upon which
to rely.

Exclusion Clauses

Finally there is the matter of
exclusion clauses: representatives of people with disabilities have a great
interest in this area in that exclusion clauses can be used both to enlarge
the client group and potential benefit, or to diminish these. People who
have disabilities often consider a properly drafted exclusion clause would
enable them to meet their primary requirement of reasonable access to insurance
and other relevant benefits. People who live daily with their disabilities
are capable of being realistic about their strengths and limitations. On
the whole they do not demand that which is unreasonable: they have made
compromises with many aspects of life and are aware of the need for some
compromise in some areas of your industry and service. I think you would
find unreasonableness no more prevalent in this group than in any as-yet-not-disabled
group of customers. Therefore perhaps your industry could consider the individual
negotiation and use of carefully worded exclusion clauses and waivers as
a way of expanding your market and meeting consumer demand.

Concluding Clauses

These are complicated and challenging
issues. I trust that my remarks have stimulated your thinking and your creative
problem solving talents. I further hope you are assured that the Disability
Discrimination Act is not specifically designed to put you out of business;
indeed, it was in part especially designed to accommodate your business.

The Act exists because it
was necessary to protect the rights of those Australians whose disabilities
have for so long been used to exclude them from the ordinary benefits
and responsibilities of citizenship, and to clarify the obligations of
community and business sectors. Where exclusion is unnecessary or unreasonable
it must stop. Where adjustments can reasonably be made to enable people
who have disabilities to participate in and contribute to society, then
these adjustments should be made. If necessary adjustments are nevertheless
an unjustifiable hardship, then failure to make them is not unlawful.

So this, like all important
journeys, brings us again to our beginning: your industry relies upon
fine discriminations, and that's fine - provided those discriminations
are not unlawful. I look forward to further discussion and cooperation
between us as we develop industry guidelines and a clearer understanding
of unlawful disability discrimination. With a commitment to compliance
with the DDA, the development of appropriate statistical and actuarial
information bases, and the creation of Action Plans for non-discriminatory
service provision your industry will both protect itself from complaints
and enlarge its customer base.

Thank you for your attention.