Advancing human rights of children and young people with disabilities
Disability Rights
Advancing human rights of children and young people with disabilities
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ACROD NSW Sub-committee on Children, Young People and their Families Graeme Innes |
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Introduction
I'd like to start by acknowledging the traditional owners of the land on which we meet.
Like many of you I've been working in the field of human rights and particularly human rights for people with disabilities for many years now.
I was around as head of the then Disability Advisory Council of Australia back in the late 80s and early 90s when ACROD and the Human Rights and Equal Opportunity Commission worked together on a discussion paper and consultation process to identify and pursue areas of increased need for human rights protection for people with disabilities.
That process formed an important part of the prehistory of the Disability Discrimination Act. It was also clear at the time and it remains clear now that passing an anti-discrimination act wasn't all that was needed to advance human rights for people with a disability, a point I'll come back to.
Despite having been around the issues a while now I'm still in the early stages of working as Human Rights Commissioner and Disability Discrimination Commissioner.
One of the exciting but challenging things about this role is how many different issues there are which could be addressed and how many different ways there are to go about them.
Each new appointment to the Human Rights Commission offers a chance for new perspectives on which issues to take on and how to approach them. This is one of the benefits of only giving Commissioners 5 year terms - although I can already see that it will look much like a good thing to me in year 5 than it does at the moment in year one.
A particular challenge is that, like several Commissioners before me, I am combining the roles of Human Rights Commissioner and Disability Discrimination Commissioner. That is partly a matter of principle as the Government sees it and partly a matter of resource constraints. I know it remains a matter of concern to the sector that the late Elizabeth Hastings was the only full time Disability Discrimination Commissioner we have had.
This combination of roles though does provide some opportunities - it pushes the person doing the job to look beyond the tools available in the Disability Discrimination Act in seeking to address disability issues; and also to look at disability issues as human rights issues more generally rather than as being "only" about people with disabilities.
I'm going to try not to talk at length about what the Human Rights and Equal Opportunity Commission has been doing on issues relevant to the sector and specifically on issues affecting children. Hopefully, most of you know as much as you want to about that already from our website and our email list. If there are issues about how effective the communication is from the Commission to the sector, and from the sector to the Commission for that matter, hopefully we can talk about those.
I'm mainly interested in discussing together what the Commission, and the sector, haven't been doing, what we might do together into the future and how we might do it.
With that in mind, I won't take time here to run through areas of achievement under the DDA on different disability issues, which I had thought of doing as a way of highlighting what issues look most likely to follow on with next and which areas there are were we have less idea of effective strategies under the DDA or our more general human rights jurisdiction. Instead I'll approach things by talking about the different processes there are available for us to use, and roles and possibilities for the disability sector in those processes.
Complaints
I want to start by talking about use of the complaint process under the DDA in pursuing a more accessible and equal Australia .
It's easy to talk about limitations of complaint processes and difficulties in using them.
Those limitations are the reasons why the DDA provides other mechanisms in addition to complaints, and on some issues there are also limitations in the coverage of the DDA itself which may mean that the DDA is not the path to progress on those issues
HREOC seeks to run a process which is user friendly and informal and which encourages parties to pursue agreed resolution of issues rather than being legalistic or adversarial
But we are well aware that despite all this the process can still be stressful for all parties.
Another issue often raised - I have raised it myself from time to time - is that confidential resolution of an issue for one person doesn't necessarily flow into resolution more broadly
The mirror image of these issues for complainants has been concern expressed in the media in recent months, particularly by some employer organisations, that respondents feel pressure to settle complaints by paying settlements regardless of merits of complaints.
I should note that those concerns have almost never been raised directly with HREOC.
Interestingly, one exception was that ACROD's presentation to HREOC disability summit 5 years ago focussed on problems experienced by ACROD member service providers as respondents or potential respondents to complaints particularly about wage rates in sheltered employment services.
It is always legitimate for industry bodies to talk to HREOC about problems with substance or procedure under DDA and of course it's far more useful to have those concerns raised directly with us and as specifically as possible than just ventilated in general terms in the media.
But obviously ACROD is not only an industry body, but a major source of disability expertise and advocacy in its own right.
I'd like to re-open conversations with the sector about how complaint processes could be used more effectively to pursue the broad purposes of the DDA and the purposes of the sector in achieving equality and access for people with disabilities.
In particular, the provision for representative complaint has been very little used by disability sector organisations, and not always used effectively when it has been sought to be used.
This contrasts with literally thousands of cases where individuals have used the complaint process successfully to achieve outcomes in areas such as employment, education, and access to services.
There are papers on the web site about this and I won't pursue the subject at length here but I am interested in further discussions with disability organisations on this issue. I would be happy to meet or talk with people further on this.
More broadly I am interested in renewed discussions on how we might best use the expertise and experience of disability sector organisations in all our processes - both in what we do about particular issues and in what issues we take on. I'll come back to those points as I go on.
Standards
One of the important features of the DDA, which makes it very different from other Australian discrimination laws, is its provision for Disability Standards, to define in more detail what access and equality mean and when they have to be achieved.
We know by now that with many disability issues it isn't enough just to tell people not to discriminate.
People need much more detail than that on what a non-discriminatory environment would look like, as well as a fair degree of legal certainty about what is required for compliance before they will invest in upgrading buildings and infrastructure and information systems and so on. An individual right not to be discriminated against is, in many areas under the DDA, not really much good at all in itself, until it is translated into broader and more detailed specifications and actions. Standards are one way of doing that work of translation.
Some legal advocates in particular seemed to have trouble for a while making this mental shift from a sole focus on pursuing rights through litigation towards seeing the individual right to complain as a tool to be used among a broader range of strategies. I think more people in the field have made that shift now and seen that standards - or other related approaches such as an exemption on conditions - aren't in themselves a dangerous sell-out of individual rights, the issue is rather whether the result negotiated does advance the rights of people with disabilities or not.
One very important feature of the development of standards is that it allows for broad consultation and public participation - from the industry sectors which will be expected to comply with the standards; from other relevant government and regulatory and standard setting bodies; and from the disability community with the experience and expertise it brings to these issues.
Standards development under the DDA has been a pretty painfully slow process. The first standard, on accessible public transport, wasn't authorised until 2002, ten years after the DDA was passed. But since then the pace has picked up. This brings me to two areas more relevant to today's meeting, access to premises, and education.
Access to premises
Back in the 1990s complaints under State discrimination laws as well as the DDA highlighted for the property industry and building regulators including local government what people with disabilities already knew all too well: that compliance with the Building Code of Australia wasn't always enough to secure non-discriminatory access.
In response, governments asked the Australian Building Codes Board to revise the access provisions of the Building Code to bring them to a level that could also be adopted as a standard under the DDA. This would have great benefits for industry in knowing what standards they have to meet, and for people with disabilities in having buildings done right first time instead of having to come to HREOC to complain about problems later.
This process is very close to conclusion. Ministers are considering advice from the Building Codes Board and from their Departments on standards to be approved this year. I have also been involved throughout the process and I expect the Commission will be giving formal advice to our Minister the Attorney-General on some aspects of the Standards in the next week. I can't comment publicly in any detail o the content of that advice yet other than saying we are working to ensure that standards are consistent with the objects of the DDA and with the level of existing rights and responsibilities as we see them.
I'm particularly interested in seeing that standards in this area go as far as possible in promoting movement towards greater equality of access in education and other facilities for children and young people. That's partly as a matter of ensuring equal access to educational opportunities. Also, it seems to me an important way of ensuring that our people learn early in life those important and practical lessons about diversity and inclusion and people with disability being an inherent part of the community.
Issues beyond the standards process
As I've said, the development of standards on access to premises involves upgrading the access provisions of the Building Code of Australia.
That means that some crucial issues aren't being addressed this time around because they are beyond the scope of the Building Code. Many important access issues concern fit-out rather than structure of buildings, and with the completion of the standards process we will all need to be looking for processes to advance those issues.
Coming back to matters directly relevant to children and young people, the premises standards process also will not deal with access in some parts of the built environment that aren't buildings, such as equipment and areas for play and recreation. If those facilities aren't accessible then children with disabilities are not only missing out on opportunities to develop skills and have fun. Crucially they and their peers are also learning a big lesson in exclusion, that children with disability aren't really fully part of the community after all.
Our counterparts in the United States Access Board have done much more extensive work in producing standards on accessibility for play facilities than has been done in Australia . I would like to join with ACROD and other organisations in the sector to seek, and pursue, strategies to advance these issues here.
One possibility may be offered by the Government's decision in response to the Productivity Commission review of the DDA to make provision for HREOC to certify codes developed by other bodies for the purposes of compliance with the DDA.
We are still discussing details of implementation with the Government.
Issues include what the effect of certification should be; appropriate procedures to be used; and, critically, how to ensure appropriate community consultation and technical input.
Codes might come from industry bodies or they might be initiated jointly by an industry body and a disability sector body. A relevant code could also come from other regulatory bodies - such as building codes board - or other expert bodies such as Standards Australia. Coming back to the issue of play equipment, if there are overseas standards and we can be assured that they are appropriate for Australian conditions, certifying these codes might give local government and others involved more guidance and incentive to implement accessibility than the theoretical possibility of someone lodging a complaint on the issue some time in future.
Although, as I've said, there are still decisions to be taken on what processes for co-regulation will be provided, I think it is worthwhile for disability sector bodies to start thinking now about how such procedures might be used to achieve more widespread access.
Education
Coming back to education issues, most of you would be aware that Disability Standards on education entered force last year. These don't prescribe outcomes in as much detail as the transport standards do or the premise standards will. But they do provide more detail on the principles to be applied. For that reason HREOC views them as a significant advance in telling education providers what their obligations are, so they can be expected more readily to comply with them.
That doesn't mean that the standards are already implemented and we can all move on from education as an issue of course. And as with any new legal instrument for guiding large scale changes they may need to be revised in the light of experience.
But at least in the education area the standards mean that we have seen the end of arguments in court about whether and where there is a duty under the DDA to make adjustments to accommodate disability and we can look forward to getting on with the process of deciding what adjustments are possible and needed and how to make them - all of which is enough work without wasting time and money in arguing fine points of law.
Complaints and the possibility of complaints will remain an important driver for the implementation of the education standards, but they are clearly not the only strategy needed.
There are two themes the Commission has been pushing for a while in the employment area, and which I think are also relevant to education.
The first is better access to information on what adjustments to make and how to make them. We have been very pleased to see the Government pick up the suggestion for an Australian equivalent of the U.S. Job Accommodation Network information and advisory service, and that should be launched later this year. I think it would be good to talk about some similar facility to bring together and provide easier access to all of the expertise that does exist in the education sector - so that no child needs to miss out on weeks or months of education while an overworked teacher tries to find appropriate resources.
The second theme is that of accessible procurement. If as far as possible all systems and facilities comply with universal design concepts then meeting disability needs will far less often be a matter of making special adjustments and using time and money in that process.
In the Commission's national inquiry on employment and disability we recommended that the Federal Government follow the U.S. Government's lead in adopting an accessible procurement policy.
I understand that the Victorian government has started work on an initiative in this area and I look forward to more details shortly. I'd like to see similar initiatives from other State Governments and indeed from other significant institutions in Australian society including education providers and major local government authorities. I hope to discuss ways of pursuing this issue both with disability sector organisations and with government over the next few months.
This has particular relevance to issues of information access.
As a parent myself one thing that causes me particular pain is to know that students are still waiting months for access to course materials. During those months they are missing out on learning what their peers are learning, and missing out on acquiring the skills they should be acquiring, or enjoying the opportunities they should have to demonstrate and use the skills they have.
Public processes and pursuit of common interests
A common theme in most of the processes I've talked about for achieving more on issues of disability access and equality is looking for ways to achieve greater co-operation and involve everyone relevant in sharing knowledge and resources and finding a common interest in situations which start from opposing positions.
Some of that I guess comes from my background as a mediator and conciliator myself. But I think it also relates to the nature of disability as an inherent part of the human experience. Access issues affect us all, directly or as family members, or if they don't now they will later as we age as individuals and as a population and hence experience increasing levels of disability.
Limits of the DDA
In my view the DDA offers a good range of tools for effective action in pursuing access and discrimination issues.
The problem of course is that human rights issues for people with disabilities go well beyond issues of physical and communications access.
The DDA does not seem to me to be at all a good instrument for bringing into being services which are needed but don't exist, or for securing more adequate resources for services and facilities targeted to people with disabilities. The sorts of services and facilities which are all too commonly referred to under the heading of "unmet needs" but which could also be referred to as "unfulfilled rights".
I'm thinking of course of issues such as
- availability of accommodation for young people with high support needs
- respite care and support services for families
- limits on availability of early childhood intervention and support services, for example with children with autistic disorders.
I don't mean to dismiss the possibilities of discrimination law altogether in achieving expansion of supports for children and young people with disabilities. What might seem to be a matter of creating or resourcing disability specific services can often also be conceived as a matter or making adjustments within a more general or mainstream service or program.
In particular there are plenty of examples of this in education where it is becoming more accepted that services and supports which were once only available in highly specialised settings have to be provided more widely.
But from the examples I have referred to it's very clear that there are many areas where human rights have not yet been turned into legal rights for people with disabilities in Australia .
Turning human rights into legal rights is in the end a matter of political processes. By that of course I don't just mean votes in Parliament, but all of the processes of persuasion and development of agendas and awareness throughout society that we can think of.
As I see it the role of a human rights commission in those processes is provide a forum for issues that might otherwise get overlooked and about giving the microphone to people whose voices don't always get heard.
Taking our recent inquiry on employment and disability as an example - they are also about bringing different perspectives and information together in search of solutions or ways forward, not about a hunt for the guilty.
When we move outside the areas covered by the DDA, public inquiries and other tools for engaging public and political attention are really the major tools we have at the moment in advancing human rights agendas.
One of the reasons I'm pleased to have been appointed as Commissioner now rather than at some point in the past is that by using the possibilities of the internet we can run more inquiries and other public processes now with limited resources, instead of having to turn over a million dollars or so of public money into jet fuel and hotel bills and paper every time.
But there are still limits to what we can do and still choices to be made - both among disability issues and among the wider range of discrimination and human rights issues within the mandate of a small organisation with wide national responsibilities.
It's critically important that in making those choices we are made as aware as we should be of the priorities for action as the disability sector sees them.
I don't know whether the best method for ensuring that awareness is to discuss formal lists of top ten priorities in the manner for example that some U.S. government agencies do with the disability sector, or what additions and improvements we need to make to the flows of information that already occur between us.
But I do know that to perform our own role we need to hear from you as clearly as possible your views on what we should be doing and how, including when you think we haven't done it.
In return we will keep trying to listen and learn from what we hear from you. Thank you.