Disability Action Plans and the

Disability Discrimination Act

Presentation to Ageing and Disability Department training workshop on Disability Action Plans

Michael Small, Disability Rights Unit, HREOC. February 1999

This presentation will focus on four issues

• what is an effective DDA Action Plan
• what are the process issues the Commission has identified that are likely to assist in developing effective Action Plans
• Action Plans and temporary exemptions
• what is the relationship between DDA Action Plans and Disability Action Plans

What is an effective DDA Action Plan?

For an organisation to benefit from the work involved in developing an Action Plan, the plan must do more than merely meet the requirements of section 61. It must be effective in meeting the objects of the DDA and the expectations of your organisation.

An Action Plan should

• eliminate discrimination in an active way
• improve services to existing consumers or customers
• enhance organisational image
• reduce the likelihood of complaints being made
• increase the likelihood of being able to successfully defend complaints
• increase the likelihood of avoiding costly legal action
• allow for a planned and managed change in business or services
• open up new markets and attract new consumers.

An Action Plan will be effective in ensuring compliance with the DDA if it convinces complainants and ultimately a Hearing Commissioner or the Federal Court that it

• demonstrates commitment to eliminating discrimination
• shows clear evidence of effective consultation with stakeholders
• has priorities which are appropriate and relevant
• provides continuing consultation, evaluation and review
• has clear timelines and implementation strategies and
• is in fact being implemented.

If your Action Plan cannot do that there is little point in investing resources in developing one. A poorly developed Action Plan will not result in the elimination of discrimination and will be of no use as part of a defence in the event of a complaint.

Developing an effective Action Plan

The Commission has now registered more than 150 Action Plans and is able to reflect on some of the problems encountered by businesses and service providers and draw on some examples of good practice.

The process of developing an effective DDA Action Plan can be divided into five elements:

• understanding your organisational environment
• creating a favourable climate for implementation
• undertaking effective consultation
• developing an effective evaluation, monitoring and review strategy and
• structuring and writing your plan clearly and accessibly.

The Commission has developed a resource titled Developing an Effective Action Plan which discusses these five elements.

Action Plans and temporary exemptions

A number of organisations have sought temporary exemptions from the Commission from liability under the DDA for specific periods while either developing or implementing their Action Plans.

The DDA gives the Commission power to grant temporary exemptions from any of the provisions of the DDA which otherwise make acts unlawful, except those regarding harassment, Disability Standards and those acts which are offences.

Exemptions may be granted for up to five years.  There is also provision for exemptions to be extended or further exemptions granted.  A five year exemption is obviously substantial in itself and the provision for extension and/or further exemption means that potentially the process of exemption could continue indefinitely.

The DDA does not specify any procedure or criteria governing decisions by the Commission regarding temporary exemptions, beyond stating that they

• must be granted in writing
• must be for a specified period
• may be granted subject to terms and conditions
• must be notified in the Commonwealth Gazette with a statement of reasons for decision and findings on material facts and
• are subject to review by the Administrative Appeals Tribunal on application by any person affected by the decision.

The Commission has developed procedures for considering applications for temporary exemptions which include the opportunity for all interested parties to comment on any application prior to the Commission making a decision. This policy and procedure is available on the Commission’s Homepage.

An organisation could apply for a temporary exemption for a specified period while developing its Action Plan. For example an existing building owner may identify that the building does not provide for equitable access for people with a range of disabilities. The owner may wish to undertake a full access audit and consult with a range of people with disabilities while developing an Action Plan to address those barriers. The owner could apply for an exemption to cover the period within which the Action Plan is being developed and subsequently apply for an exemption for the period during which the Action Plan is being implemented.

What is the relationship between the DDA Action Plans and NSW Disability Service Plans?

Some organisations may be required to develop other kinds of disability access and equity plans under state or federal legislation or as a result of other state or local government strategies. For example, some state government departments and local authorities are required to develop Disability Service Plans and Commonwealth government departments and authorities are required to develop Action Plans incorporating specific factors relating to the Commonwealth Disability Strategy.

Other private or public sector organisations may decide to develop disability access and equity plans as part of their business strategies or customer service charters within existing corporate planning processes.

In these situations, organisations may decide that it is more cost and time effective to develop a single plan which meets all responsibilities of current legislation. If this is the decision of your organisation, then it is critical that DDA requirements are not neglected in favour of your other requirements or are only partially addressed because your other responsibilities are given precedence.

There is a significant difference between anti-discrimination law which requires non-discriminatory service provision and laws, regulations or policies which simply call for improvements in access.

A DDA Action Plan, or a single 'Plan' developed to address responsibilities under different legislation and requirements, will only be effective in relation to the DDA if it

• incorporates the rights-based focus of the DDA
• eliminates discrimination in mainstream services rather than establishing separate or parallel 'special' services
• ensures equal access for people with disabilities rather than simply improving or enhancing access
• addresses all barriers, including physical, information, communication and attitudinal barriers, and
• addresses the rights of all people with disabilities, with reference to the broad definition of 'disability' in the DDA.

All documents referred to in these notes are available on the Commission's Homepage on www.humanrights.gov.au   (Look under Disability Rights and then under subject headings eg Action Plans, Standards and Guidelines - for Advisory Notes on Access to Premises - or Exemptions.)