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Annual Report 1999 - 2000
Disability
Discrimination
Commissioner Disability Discrimination Commissioner
Susan Halliday has been the acting Disability Discrimination Commissioner since 1999. This is in addition to her duties as the Sex Discrimination Commissioner.
Deputy
Disability Discrimination Commissioner
Mr Graeme Innes AM commenced work in October 1999 on a part time basis as Deputy Disability Discrimination Commissioner, among his other work for the Commission as inquiry commissioner and for a number of other tribunals. This position has been created and funded by the Commission using internal savings made in the Commission's disability policy area, principally by exploiting the capacities of the internet for greater efficiency and economy in a number of the Commission's processes.
The Deputy Commissioner position was established to
- advise and assist the Disability Discrimination Commissioner (or other member or officers of the Commission responsible from time to time for disability discrimination complaints) with exercise of functions and powers regarding Disability Discrimination Act complaints, including conduct of inquiries into disability discrimination complaints;
- advise and assist the Disability Discrimination Commissioner in promotion of compliance with and awareness of the Disability Discrimination Act;
- assist the President with conduct of the reference from the Attorney-General on access to electronic commerce for older Australians and people with a disability.
Research and policy
Access to electronic commerce reference
"New technology and e-commerce are already benefiting older Australians and people with a disability, and have enormous potential to do more. The digital divide can continue to be narrowed, helped along by the efforts of government, business and community groups." Graeme Innes AM, Deputy Disability Discrimination Commissioner, releasing the Commission's report.
The report on this reference was tabled by the Attorney-General on 8 June 2000. Press releases welcoming the report and undertaking to take implementation actions were issued by the Attorney; the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts; the Australian Bankers Association; the Australian Internet Industry Association and the Australian Tax Office.
The report welcomes advances made by internet service providers, banks and the Federal Government in combating serious access problems faced by older Australians and people with a disability. These problems are common to services provided by many industries including government, financial services, retailers, communications companies and web service providers. The report found that some older people and people with disabilities face a number of problems in using financial services in bill-paying and phone-based facilities as well as significant barriers to accessing the world-wide web.
Recent statistics released by the Australian Bureau of Statistics highlight a digital divide affecting older Australians in particular, although also indicating that the gap is narrowing in some areas of financial and retail services.
The report noted that for some people with disabilities, these systems are experienced as a great advance in access to information and services. The self service model cannot be expected to suit all users, and may present serious access barriers to some people with disabilities, but for other people availability of this model represents independence and equality.
In conducting research for the Inquiry the Commission consulted with a number of key e-commerce service providers including the internet and banking industries and with peak disability and older persons' groups. A particularly significant outcome is the agreement by the Australian Bankers Association to formation of a joint working party to progress access issues identified in the report for the banking industry. The Internet Industry Association plans to run an awareness campaign among members to promote better access to web-sites and Internet-based services.
The report, press releases and other documents are available on the Commission's internet site.
Public inquiries into complaints
In 1999 the Disability Discrimination Commissioner began applying public inquiry processes to the investigation of complaints in appropriate cases, including use of the internet for distribution of notices of inquiry and receiving and publishing submissions. This approach has been applied where the subject matter
- requires consideration of interests of, and information from, persons or organisations beyond the immediate parties to the complaint for the purpose of identifying appropriate options for resolution of the matter by the parties or decisions by the Commission;
- involves inquiry into issues of public or social policy rather than principally concerning allegations regarding individual behaviour;
- can be investigated openly without unreasonable disclosure of personal information or breach of other duties of confidentiality.
Application of this approach in appropriate cases also has potential benefits in promotion of awareness of and compliance with the legislation.
The President decided on assuming responsibility for complaint handling in April 2000 to continue this approach on a trial basis. Results in the limited number of matters where this approach has been applied to date have been encouraging.
Captioned movies
The Disability Discrimination Commissioner commenced in 1999 a public investigation into complaints regarding lack of provision of cinema captioning for deaf and hearing impaired viewers. After receiving submissions from interested parties the Commissioner convened and chaired a public forum in February 2000 to progress the matter. Representatives from major movie exhibitors, movie distributors, deaf and hard of hearing advocacy groups and service organisations, and the captioning sector attended. Movie exhibitors and distributors agreed to develop a proposal on how to improve access for deaf and hard of hearing movie patrons in consultation with the hearing advocacy groups and others in attendance. After a further meeting in April 2000 a process of trials of open captioned movies were agreed upon to process assessment of available captioning technologies.
The Commission is pleased to have been able to facilitate these co-operative processes between industry and consumers. The innovation of applying a public inquiry approach to the complaint investigation process has assisted in achieving an industry wide approach and in ensuring that all interested parties have an opportunity to receive and contribute relevant information and perspectives.
Closed captioning: broadcast television
In 1999 the Disability Discrimination Commissioner commenced a public inquiry into complaints regarding limited provision of captioning for deaf and hearing impaired viewers on broadcast television. Submissions in this process have been made publicly available through the internet for the information of interested parties and to assist the Department of Information Technology, Communications and the Arts in preparation of captioning standards under the Broadcasting Services Act.
The Commission's update paper on this inquiry in March indicated a view that the Disability Discrimination Act would not be displaced as a matter of law by the introduction of captioning standards under the Broadcasting Services Act, but that depending on their content such standards (when made) could be accepted as adequately remedying the subject matter of complaints in this area. Standards under the Broadcasting Services Act as yet do not exist and the Commission is now considering what further action would be appropriate on these complaints.
Public transport: Sydney Cityrail station access
In July 1999 the Commission received a representative complaint under the Disability Discrimination Act lodged on behalf of people who use wheelchairs regarding current lack of accessibility of Summer Hill railway station, and seeking implementation of accessibility at that station in the 1999-2000 financial year.
After a public process of issuing a notice of inquiry and taking submissions the Disability Discrimination Commissioner decided to exercise the power to decline to deal further with the complaint. (As of April 13, 2000 this power is now vested in the President).
The Commissioner said:
CityRail's EasyAccess program commitments for achieving physical accessibility of CityRail stations, and current progress in implementation, follow the first five year target set out in the draft Disability Standards for Accessible Public Transport fairly closely.
For the purposes of this complaint I regard achievement of accessibility of stations at, or close to, the rate contemplated by the draft Standards as an adequate remedy.
This means that I regard a complaint about a particular station as adequately remedied by an acceptable overall rate of achievement of accessibility of stations, whether or not the particular station is first on the list of stations to be made accessible.
The Commission is not best placed to judge issues of priority of one station over another within an overall program where acceptable progress is being made. If it is accepted that not every station can be made accessible immediately, in my view the DDA has very little bearing on which stations should be upgraded first. These are more appropriately seen as issues for decision through political processes and for determination by transport operators.
She also noted that
... this decision does not preclude future complaints regarding access to this or other stations if progress in implementation of the Easy Access program does not continue at the projected rate in line with that contemplated by the draft Standards, or if the most recent commitments regarding Summer Hill station specifically are not met.
Likewise, this decision does not preclude complaints on other physical access issues which may arise regarding boarding and disembarking from trains (including in relation to needs for assistance), or other issues affecting access to rail services (including access to announcements, timetables and other information).
Electoral access
A public inquiry into an individual complaint regarding a range of barriers to accessibility in recent local government elections led to the complaint being conciliated, with agreement by the parties to the establishment by the Australian Electoral Council _ of which all Electoral Commissions are members _ of a committee, including the Commission and community representation, to develop a standard definition for access, and set benchmarks for its achievement over a period of years. The Commission met in June 2000 with representatives of the Australian Electoral Council to discuss terms of reference for this committee. This outcome and the open nature of the process leading to it have been widely welcomed by disability community organisations.
Telecommunications
Interference from digital mobile phones can be so severe that some people who use hearing aids are unable to use them and can therefore be denied access to mobile phone services. In September 1999 the Commission, in consultation with relevant parties, announced a public inquiry into the issue, prompted by a representative complaint made under the Disability Discrimination Act on behalf of people who use hearing aids or cochlear implants.
The inquiry has provided a forum for exchange of community and industry views about better access to solutions and for clarifying the responsibilities of service providers and mobile phone suppliers. The report finalising this inquiry is planned for July 2000.
Access to premises
As in previous years the Commission has continued to give a high priority to issues of access to premises in view of their prominence in complaints, frequent requests for information and advice, and an increasing tendency for approaches to be made to the Commission (whether by way of formal exemption application or less formally) as part of building or development approval processes.
Like other interested parties the Commission recognises that the main avenue for progress in improving accessibility of buildings is the process of revision of the Building Code of Australia by the Australian Building Codes Board towards a level suitable for recognition as complying with the Disability Discrimination Act, including through endorsement as a Disability Standard under the Act. The Commission has assisted the Board to this end through its membership of the Board's Building Access Policy Committee. Progress in this process has been slow thus far and significant matters remain unresolved.
Pending this, the Commission has been seeking to develop appropriate measures to enable all parties to deal with their rights and responsibilities in this area. The Commission commenced discussions in April 1999 with local government representatives about possible responses to the Federal Court decision in Cooper v HREOC and Coffs Harbour Council, which exposed councils to significant liability under the Disability Discrimination Act for permitting actions subsequently found to be unlawful discrimination, even where they make reasonable decisions in approving building or development applications. In June 1999 the Commissioner issued for consultation a draft policy on exercise of relevant powers under the Act to decline complaints where an appropriate alternative remedy is available or has been provided through local government procedures. The Commission did not proceed with this policy in view of responses received _ some of which condemned the proposal for doing too much, some for not doing enough, but few expressing support.
An alternative path in response to Cooper v HREOC would be for local government authorities to seek exemption from potential liability under the Disability Discrimination Act in relation to building or development approvals, using the mechanism in section 55 of the Act. To be considered, applications for exemption would need to demonstrate to the Commission that the objects of the Act would be advanced by allowing local authorities to apply their own appropriate procedures and criteria to relevant decisions free from potential liability under the Act. To date no applications in these terms have been made.
Sterilisation
The Commission has participated in meetings of the Special Medical Procedures Committee of the Family Court which is working to develop guidelines to be applied when sterilisation procedures are proposed to be carried out on young women with intellectual disabilities.
Promotion of awareness, understanding and compliance
Use of internet and public processes
Internet usage continues to help increase efficiency in the Commission with regard to reduced resources in disability rights policy work while pursuing increased effectiveness. The position of Deputy Disability Discrimination Commissioner has been funded principally by savings achieved by use of the internet as the principal publication and communications medium.
Public use of the disability rights area of the Commission's internet site continues to increase rapidly. For example, there were 4108 hits on the disability rights index page (in its graphics and text only forms) in May 2000, compared to 2440 in May 1999.
Guidelines
Guidelines and advisory notes are available on a number of issues under the Disability Discrimination Act through the Commission's internet site and on request. The Commission has indicated it will take these guidelines and notes into account in complaint handling and in decisions on exemption applications. They are
- Advisory Note on public transport;
- Insurance and Superannuation Guidelines;
- Advisory Notes on Access to Premises; and
- World Wide Web Access (updated May 1999 to take into account the latest recommendation from the World Wide Web Consortium).
The Commission also maintains Frequently Asked Questions materials on a number of areas covered by the Disability Discrimination Act. These materials draw on responses to individual enquiries as well as the Commission's complaint handling experience, participation in policy processes and relevant court and tribunal decisions. In particular, extensive Frequently Asked Questions materials are available regarding employment.
Exemptions
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 Internet site or on request.
When the Act was introduced Disability Standards were envisaged as the main mechanism for managing the process of transition over time from discriminatory and inaccessible systems and environments to inclusive, accessible non-discriminatory systems and environments. Particularly, given delay in and in some cases poor prospects for adoption of Standards, the Commission views the temporary exemption mechanism as important for the same purpose and as capable of wider application than it has received to date.
However, the Commission has made clear in a number of decisions that the exemption mechanism is not appropriate for use simply to provide a shield against complaints (including on unjustifiable hardship grounds) without some reason to conclude that granting an exemption would advance the objects of the Act.
Pursuant to the Commission's policy on exemptions under the Disability Discrimination Act, consideration of exemption applications is open to public participation, through publication on line of the Commission's notice of inquiry and details or text of applications and also of submissions from interested parties so that the public has access to a full range of views.
Applications decided
W.A. Firearms Act: The Commissioner of Police for Western Australia applied for an exemption concerning decisions to refuse permits or licenses under the Firearms Act 1973 (WA) and related matters. After issuing a notice of inquiry which canvassed options for and against such exemption, the Commission decided in May 2000 not to grant it. In the Commission's view an exemption had not been shown to be required, since complaints regarding legitimate decisions and actions can be expected to be declined under the DDA as not unlawful, or as more appropriately dealt with through the appeal procedure under the Firearms Act.
Gladstone Touch Association: The Commission decided in September 1999 to grant an exemption to the Gladstone Touch Association. The exemption for a period of five years was granted from section 23 of the Act (regarding access to premises), and also from sections 24 (provision of goods, services and facilities) and 27 (clubs and associations) to the extent that they relate to lack of ramp access to upper level additions to the premises concerned, on condition that the Association report to the Commission within three years from the date of this decision on progress towards provision of access to its premises. The Commission accepted that granting an exemption in this case would promote the object of the Act to eliminate discrimination as far as possible, taking into account the recognition by section 55 of the Act that achievement of non-discriminatory access may need to occur over a period of some years; the submission by the applicant that it lacked sufficient financial means to provide access at present but was committed to raising funds for provision of access to the proposed facility by 2004, and that local government approval to permit the development to proceed will not be forthcoming without some form of certification that requirements under disability discrimination legislation have been addressed; and the lack of any contrary views received in response to the release of a proposal to grant this exemption.
Applications awaiting decision
Regional Airlines Association: The Commission presently has before it an exemption application from the Regional Airlines Association of Australia (RAAA) regarding access to small aircraft by persons using wheelchairs and similar mobility aids. A notice of inquiry has been issued and submissions taken. Further action on this application is being held pending further advice from the applicants. Kendell Airlines: One of the members of the RAAA, Kendell Airlines, submitted its own application more recently supported by material additional to that in the RAAA application including an action plan under the Act.. The Commission wrote to the airline in June 2000 seeking responses to a number of issues raised in submissions prior to making a decision on this application.
Olympic Roads and Transport Authority: In May 2000 the Commission received an exemption application from the Olympic Roads and Transport Authority (ORTA) on its own behalf and on behalf of other relevant government agencies in New South Wales, the Australian Capital Territory, Queensland and Victoria as specified in the application; Bus 2000 Ltd, a company established to procure (under contract with ORTA) the required numbers of buses, coaches, drivers and support staff for the Olympic and Paralympic bus task; and public and private bus operators in New South Wales, the Australian Capital Territory, Queensland, South Australia and Victoria from whom ORTA will be procuring accessible buses during the Olympic and Paralympic Games periods.
The exemption was sought for the period of ORTA's operations in connection with bus transport services for the Olympic and Paralympic Games, that is from 2 September 2000 to 4 November 2000, a total period of 9 weeks. The purpose of the application was to protect bus operators, ORTA and other parties concerned from liability which might otherwise arise from the temporary transfer of accessible buses from other services to Olympic and Paralympic related services.
The Deputy Disability Commissioner issued a notice seeking comment on a proposed recommendation to the Commission to grant the exemption, on the basis that
- If an exemption is not granted, bus operators who have brought accessible vehicles into operation face a potential liability (in making those vehicles available to ORTA and therefore temporarily withdrawing them from other services) which is not faced by operators who have not made the same progress in providing non-discriminatory services (and who therefore have no such vehicles to provide to ORTA). It is appropriate for the Commission to use its exemption power to ensure that the DDA provides incentives rather than disincentives to measures to achieve access and equality.
- The potential complaints under the DDA which this exemption would preclude would, in essence, be concerned with which services accessible buses should be applied to in the relevant period, rather than with whether and at what rate operators should be required to acquire and deploy accessible vehicles. I endorse the view previously expressed by the Commission, in its reasons for granting an exemption regarding Melbourne trams, and by the Disability Discrimination Commissioner, in her decision on a complaint regarding access to Summer Hill railway station, that the Commission is not best placed to decide issues of allocation of accessible services as between different locations. The objects of the DDA are best served if these issues of allocation are determined by operators in consultation with users of services.
Submissions closed on 13 June 2000 and the Commission granted the exemption for the above reasons.
Cattle Camp Motel: Submissions closed on 5 May 2000 on an exemption application regarding accessibility of proposed demountable units at a rural Queensland motel, affected by flood height requirements. The applicant has been asked to respond to a number of issues raised in submissions. Further action in this matter awaits this response.
Infinity (Gold Coast): The Commission issued a notice of inquiry on this matter calling for submissions by 22 June 2000. The application concerns access limitations of a proposed entertainment venue. The notice of inquiry indicated that the matter appeared to be in the same category as a number of applications previously refused by the Commission and requested comment on a proposal to refuse the application accordingly.
No comments were received and the Commission refused the exemption.
Wild Bunch Florists: Submissions closed on 23 June on an application for exemption from liability under the Act, for a period of five years, regarding lack of wheelchair access to premises in King William Street Adelaide.
The Commission refused the exemption because there was no substantial prospect of an unlawful act occurring if the exemption was not granted.
Review of decisions
Persons whose interests are affected by a decision on an exemption application may seek to have the Commission's decision reviewed by the Administrative Appeals Tribunal. An application for review of the Commission's decision made in March 1999 regarding physical access to Melbourne trams was before the AAT as at the time of writing.
Action Plans under the Disability Discrimination Act
As at 20 June 2000, 170 plans were registered with the Commission, comprising 36 business, non-government and government business enterprises, 31 Commonwealth government,18 State government and 59 local government organisations, and 29 education providers. The register of Action Plans, and plans provided electronically to the Commission, are available through the Commission's internet site. 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.
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 as offering potential to increase certainty and clarity of rights and responsibilities for relevant parties.
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 by practical participation in standards development processes rather than by way of formal reporting.
Access to premises
The Commission welcomed the amendment by the Human Rights Legislation Amendment Act 1999 of section 31 of the Disability Discrimination Act to allow for 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. As noted under Research and Policy, the Commission has been working extensively with the Australian Building Codes Board for this purpose.
Education
The Commission is not directly involved in the development of draft Disability Standards on education by a taskforce of the Ministerial Council on Employment, Education, Training and Youth Affairs. It is providing advice to participants on request. The Commission understands that the taskforce intends to make draft Standards available for consultation in 2000.
Employment
Previous annual reports have detailed extensive positive work by the Commission, business, industry and community groups towards the development of employment standards. The Commission has not however, regarded as a priority, further work towards standards on employment given the barriers and lack of consensus for proceeding. This view also takes into account the "difficulty" of securing adoption of standards even if and where (as with public transport) a standard is drafted with clearer industry and community support, endorsed by Ministers, and has passed the extensive and resource intensive Regulation Impact Statement processes required.
Public transport
The Federal Department of Transport advised in April that a proposal for adoption of the draft Disability Standards for Accessible Public Transport (with some revisions taking account of the Regulation Impact Statement process conducted from 1996 to 1999) had been prepared and at the time of writing was being considered by government.
Last updated 1 December 2001.
