Recognition matters: Human rights and the rights of carers
| Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner Carers Australia national conference |
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Introduction
Allow me to begin by acknowledging the Ngunnawal people, the traditional owners of the land on which we meet.
Many of you perhaps already know that the word Canberra actually means meeting place in the language of the first people of this country.
For thousands of years, Aboriginal groups, who might spend much of their time living far apart in the expanses of this land, pursuing separately the business of survival, would come together at times to meet, to trade, sometimes to resolve differences, but also to exchange knowledge for mutual benefit.
Even in this age of the internet and other forms of almost instant global communications it is still important to meet face to face. So I very much appreciate the opportunity to be here.
Need for discussion
Opportunities to meet and work together can be hard to come by.
In December 2001 I hosted a summit for peak disability organisations to discuss how far we had come in implementation of the Disability Discrimination Act and more broadly in advancing human rights for people with disabilities.
We wanted to meet to review and assess the most effective strategies for using the DDA to achieve the elimination of disability discrimination; and to work on formulating an appropriate agenda, priorities and plans of action for implementation of the DDA in its second decade - for HREOC and for other organisations.
At that meeting we discussed papers from most national disability peak advocacy and representative bodies as well as from our own staff. Unfortunately, Carers Australia was one of the small number of peak organisations which although invited was not able to attend or contribute a paper.
Resources and priorities for carer representation
I am not being critical in referring to this. I understand very well the resource limits which affect community organizations in trying to deal with a host of issues affecting their constituencies, and the pressures faced by people working as unpaid representatives, while managing the demands of having a disability or having a carer role and also trying to maintain work and family and other roles.
I hope that the new National Family Carers Voice organisation which has been announced by the Minister for Family and Community Services will be appropriately resourced and will effective in bringing together ideas and expertise from across the disability and carer community, including in considering how to advance human rights and equality more effectively for carers and people with disabilities.
I have written to the Minister offering every co-operation with this new body.
I am also aware of course that the Human Rights and Equal Opportunity Commission and the legislation it administers is not always at the centre of the world or at the top of the priority list for other organizations. It is not hard to see how issues of day to day survival can leave little room for consideration of the uses and limitations of discrimination law.
But I do want to take the opportunity today to open up some discussion of what use carers have made or could make of human rights and discrimination laws and what possibilities there might be for making these laws more useful to you in future.
The Disability Discrimination Act and HREOC role
Let me start with an overview of the Disability Discrimination Act and the role of the Human Rights and Equal Opportunity Commission in relation to it. I apologise to those of you who may already be very familiar with this. I want to start with this introductory discussion for two reasons.
First, there is some evidence that many people in the carer community are not as familiar with disability discrimination law and its application to them as they would like to be.
Soon after the DDA was passed HREOC assisted Carers Australia in producing a booklet "The DDA: it's there for carers too".
It might be useful if this or a similar resource specifically for carers was made available on the internet. That is something we would be happy to arrange, in addition to the extensive materials already available on HREOC's website. I would also be happy to have more discussion here of other possibilities for improving availability of information.
Second, even for those who do already have some of this information,
it may be useful to go back to the basics of what the law does before
we try to discuss how to use it more effectively or how the law might
be changed to be more effective.
The Federal Disability Discrimination Act (or DDA) was passed in 1992
and came into effect in March 1993.
Areas covered
The DDA makes it against the law to discriminate in the following areas of life :
- Employment
- Education
- Access to premises used by the public
- Provision of goods, services and facilities
- Accommodation
- Buying land
- Activities of clubs and associations
- Sport, and
- Administration of Commonwealth Government laws and programs.
Definition of disability
The definition of "disability" in the DDA is intended to be
broad and includes physical, intellectual, psychiatric, sensory, neurological,
and learning disabilities.
The DDA covers a disability which people:
- Have now,
- Had in the past (for example: a past episode of mental illness),
- May have in the future (for example: a family history of a disability which a person may also develop), or
- Are believed to have (for example: if people think someone has a disability
or illness because they are a carer for someone who has that disability
or illness).
The DDA also covers people with a disability who may be discriminated against because:
- They are accompanied by an assistant, interpreter or reader,
- They are accompanied by a trained animal, such as a guide or hearing dog, or
- They use equipment or an aid, such as a wheelchair or a hearing aid.
Coverage of carers and other associates
The DDA also protects associates of people with a disability such as
family, friends, carers and co-workers if they are discriminated against
because of that relationship.
For example, it would be unlawful discrimination if:
- A parent is refused a job because the employer assumes he or she will need time off work to look after a child with a disability
- People are refused access to a restaurant because they are with a friend who has a disability;
- Lack of physical access for a family member prevents a carer and other family members from enjoying a night out together, if access could have been provided without unjustifiable hardship
- A carer of a person with a disability is refused accommodation because
of his or her association with the person with a disability.
Complaint process
The main mechanism provided by the DDA for dealing with discrimination
is the complaint process.
Complaints can be made:
- by a person directly affected by discrimination (for example if you have experienced discrimination yourself as a carer)
- by a person acting on behalf of another person who has been discriminated against (for example a carer can complaint about discrimination experienced by the person they are caring for)
- by a person on behalf or him or herself and on behalf of other people who have experienced the same discrimination (this is what is meant by a representative complaint or class action); or
- by an organisation acting on behalf of members or constituents who
have been discriminated against .
Compared to other legal processes, there are very few formal requirements
for discrimination complaints. Complaints do need to be put in writing
but people who have difficulty with this can ask Commission staff to assist.
Complaints can now also be made by email.
In some circumstances the Commission can also assist complainants to find
other supports they might need, like an interpreter or advocate. A network
of disability discrimination legal services was funded by the federal
Attorney-General's Department from the outset of the legislation and there
are also specific legal services focused on mental illness, HIV/AIDS and
intellectual disability.
The complaint should state that the person has been discriminated against
on the basis of disability, and it should describe what happened, when
and where it happened, who was involved, and give the names of any witnesses.
HREOC will investigate any complaints received that are within its area
of responsibility.
If it appears that disability discrimination has occurred, the person
or organisation will be asked to participate in a conference with a conciliator
and the complainant in order to help resolve the matter to the satisfaction
of both parties. This is called conciliation.
Depending on the complaint, conciliation may result in:-
- changes in policies or practices
- job reinstatement or promotion
- an apology
- withdrawal of the complaint
- payment of damages, and/or
- some other outcome.
Where a complaint cannot be resolved by conciliation, you can take your complaint to the Federal Court for an enforceable ruling if you choose to.
Only a very small proportion of complaints end up in the Federal Court. Of the complaints which are found to be within our jurisdiction a large majority are resolved by conciliation.
State and territory laws
State and Territory discrimination laws have similar provisions on disability discrimination to those contained in the Disability Discrimination Act. Some such as the New South Wales legislation have also had added some specific provisions on rights of people with carer responsibilities.
I am aware of some suggestions that overlapping discrimination laws have led to confusion in the community about which legislation to use. In most things in life, though, it is better to have a choice than not to. Our complaints inquiry staff or their equivalents in the State and Territory bodies are willing and able to discuss these choices.
Achievements in using the DDA
In March this year I released a publication to recognise achievements in the first ten years of the DDA.
This publication is available free on our website or in print and other
formats on request. It discusses outcomes of complaints, as well as results
of other processes under the DDA which include development of standards
and guidelines, conducting inquiries and other activities to promote public
awareness of disability issues.
Some of the achievements highlighted were:
- Thousands of disability discrimination complaints have been dealt with.
- Standards for accessible public transport have been adopted and already widely implemented.
- Telecommunications access has improved for deaf people and other people with disabilities.
- Negotiations on standards for improved access to buildings and education are in the final stages, and there are many practical instances of improved access in these areas.
- Captioning of television programs has increased, with further increases being negotiated - and now recently announced.
- There has been widespread adoption by the banking and financial service industry of standards for disability access to ATMs, internet banking, EFTPOS and phone banking.
- Hundreds of service providers, particularly local governments and universities, have developed voluntary action plans for improved disability access.
Effectiveness for carers
Some of these achievements should improve things for carers as well as for people with disabilities directly. Obviously for example the whole family is affected if one of you cannot get onto the bus or into the restaurant, and will benefit once these access barriers are removed.
Implementation of standards under the DDA really will change the world - or at least Australia - for people with disabilities and their carers over the next 20 years or so in these areas of transport and building access.
A number of important complaints have also been brought by carers on behalf of a family member with a disability.
At the same time, there are indications that carers have made relatively limited use of the legislation and that some issues of particular interest to carers have not advanced as much as others.
Limits of the DDA
Some limits relate to the fact that a discrimination law is not the same as a comprehensive law on rights and entitlements for people with disabilities and carers.
For example, although of course I am aware of the significance of the current debate around review of carer payments by the Commonwealth Government, the Disability Discrimination Act does not give us jurisdiction to take complaints about the provisions of the Social Security Act.
More generally, while the DDA is aimed at ensuring that people with disabilities and their associates including carers have non-discriminatory access to services and facilities and opportunities, the legal concept of discrimination at least as we have it at present is not the same thing as services or programs being inadequate or missing despite the impact this can have on human rights.
We do not have a comprehensive Bill of Rights in this country which might guarantee rights to adequate accommodation and other supports. Even in most countries where there are Bills of Rights, rights protected are mostly restricted to "liberty rights" such as free speech and fair trial rather than extending to positive rights to secure an adequate standard of living.
A Bill of Rights might also confer greater protection against inequality in decision making in the legal system itself, possibly providing an avenue for carers to raise concerns which some people have identified in areas such as guardianship and financial decision making. But as I have said, a bill of rights is not part of our legal system.
What we do have though is discrimination laws, and there may be scope for those to be used more extensively than they have been so far on issues like people with disabilities having the same range of choices in accommodation as other people. I would be happy for organisations or people interested in these issues to have further discussions with my office.
Productivity Commission review
A large scale review of the effectiveness of the effectiveness of the Disability Discrimination Act and possibilities for improving it is going on at the moment.
The Productivity Commission was asked by the federal Assistant Treasurer to conduct this review. It has involved public hearings in all capital cities and an invitation for public submissions which has resulted in 225 submissions from individuals and organizations so far.
HREOC has made two major submissions, one responding to the inquiry issues paper and one commenting on issues raised in submissions by other organisations. Those submissions and links to other documents in the inquiry are available on our website.
Carers Australia has made a submission to this inquiry.
That submission notes limited use of the legislation by or on behalf of carers. It raises the issue of limited awareness of the legislation which I have already mentioned.
In common with a number of submissions from other carer organizations, the submission from Carers Australia also refers to difficulties for carers in using complaint based legislation to achieve change given other demands on them.
Limitations of complaint based processes are the reason for provision of other mechanisms in the DDA, including development of standards. But I would again emphasise that in some areas, such as public transport, a small number of complaints have had very wide impacts.
We are aware that many people find the idea of any legal process daunting and demanding. However, surveys of people who have used the complaints mechanism indicate that most people who use it find the Commission's conciliation service accessible and valuable. The current review by the Productivity Commission may well help in finding ways to improve this service further and also to make the legislation more effective in other ways.
Role for Commissioner in taking cases to court?
Many submissions to the Productivity Commission inquiry supported a role for the Disability Discrimination Commissioner or the Commission in taking action under the DDA instead of relying only on people affected by discrimination having to make complaints.
There are some obvious difficulties both in legal terms and in terms of people on the receiving end of complaints if the body which is meant to deal impartially with complaints is itself making complaints to itself on the same issue. These difficulties led to the removal in amendments made in 1999 of a self start complaint power originally included in the DDA. I am however interested in further discussion of possible options in this area if these problems of legal process and perceptions can be addressed.
One possibility might be that rather than the Commissioner making complaints
to the Commission, the Commissioner might be empowered to initiate proceedings
directly in the court - in the way that the Australian Consumer and Competition
Commission can under the Trade Practices Act.
This might not necessarily raise any greater issues of bias in our role
than the existing function of intervening in legal proceedings initiated
by other people - although it could present other issues in terms of available
resources to perform such a role.
Reasonable adjustment in employment
One area where improvements to the DDA could come out of the Productivity Commission inquiry could be in making clearer what the duties are of employers and others in accommodating responsibilities of carers.
The DDA contains a principle of "reasonable adjustment" in employment and other areas. However it does not spell out this principle or what it means in practice in black and white. It might be that the legislation would be more effective in promoting equality and participation for carers if there was some spelling out of duties to accommodate carers in matters such as flexible working arrangements.
Intervention in Australian Industrial Relations Commission in work and family test case
As I have already mentioned, the DDA does provide other mechanisms for achieving change alongside the complaint process.
One of these mechanisms is a function of intervening in court proceedings that involve discrimination issues.
At the moment the Commission is considering intervening in the Australian Industrial Relations Commission in the Work and Family test case. The Australian Council of Trade Unions has put forward a range of proposals in relation to family responsibilities including expanded award based rights regarding parental leave. They also propose an award based right for employees to request a variation in the hours worked, the arrangement of the hours worked, or the place of work to accommodate caring responsibilities, which the employer cannot unreasonably refuse.
In response industry groups have put forward proposals aimed at providing
employees with flexible working arrangements, where agreed to by the employer
rather than as a matter of award based rights. These proposals include
provisions for job sharing, increased provision for part time and casual
work, and increased flexibility in taking leave.
We would not necessarily be intervening to support one side against another
in these proceedings. But it may be important to ensure that the Industrial
Relations Commission is made aware of the relevance of this case to carers
of people with disabilities and not only to people with responsibilities
for young children.
Under the DDA, inflexible working conditions may amount to indirect discrimination
against carers of people with disabilities if such conditions impact on
or disadvantage greater numbers of carers relative to people who are not
carers and are unreasonable in the circumstances.
It seems obvious however that employers and employees alike would be better off if these issues can be dealt with appropriately through the industrial relations system rather than having to be resolved through perhaps large numbers of complaints under the DDA.
Conclusion
We would like to see all sections of the disability community achieving the most out of the legislation - including carers.
The goals I see for the next ten years of the DDA are simple to state, however challenging they may be to achieve:
- To continue the expansion of opportunity and access for people with disabilities and the elimination of disability discrimination across Australia
- To keep moving forward in areas of success, such as transport and
access to premises, while seeking more effective strategies in other
areas such as employment and for sections of the disability community
who are benefiting less than others from the legislation.
Policy processes including public inquiries, negotiation of standards,
and shaping legal precedents through the intervention and amicus curiae
functions, will remain highly important to these goals.
However, the main driver of change towards a more accessible and equal
Australia remains the complaint process and the ability of people with
disabilities to use it effectively to pursue their own aspirations.
I would like to encourage you to discuss further with me - here today
- or my staff - by email through our website - ways that we can make the
DDA work more effectively for promote the human rights of carers and people
with disabilities. Thank you.
