Human Rights and Equal Opportunity Commission
Annual Report 2001-2002
Chapter 5: Disability Rights
Acting Disability Discrimination Commissioner
Dr Sev Ozdowski OAM commenced duty as acting Disability Discrimination Commissioner in December 2000 in addition to his duties as Human Rights Commissioner. In February 2002 the Attorney-General announced an extension of this acting position to run until 10 February 2003.
Statement from the Commissioner
This is the 10th year of operation of Australia's federal Disability Discrimination Act. There have been some substantial achievements in that time. In particular, achievements include widespread progress in accessibility of public transport, and increased accessibility of communications and information to people with sensory disabilities.
However, there are also many areas where progress has been slower than might have been hoped. Setting of detailed standards to clarify what access and equality mean is a key feature of the scheme of the legislation - but no disability standards under the Disability Discrimination Act are in force at the time of writing. I am confident that this will improve before next year's report, with the Disability Standards for Accessible Public Transport anticipated to be put before the Parliament in the Spring 2002 session. Progress can be seen towards standards on access to premises. At the time of writing it was not clear whether standards on non-discriminatory access and opportunity in education will advance through the relevant Ministerial council.
Even more serious concerns must be noted regarding the effectiveness of the legislation in relation to employment. There is little evidence of the employment situation for people with disabilities having improved significantly since 1992 - even though employment was the original central motivation for introduction of the Disability Discrimination Act. I intend to make this area a major focus for policy examination in the coming year.
It also has to be acknowledged that we have been able to achieve less for some sections of the disability community so far than for others using the Disability Discrimination Act. In particular, people with intellectual or psychiatric disabilities have not had the same clear benefits as people with physical or sensory disabilities.
The Commission's own policy has been to concentrate first on issues where broad gains can be achieved most readily. These have often been in areas of physical and communications accessibility rather than in more subtle or diffuse forms of discrimination.
There will still be plenty of challenging issues to deal with in disability discrimination, and beyond that in wider issues of human rights and disability, even once (or if) we reach the point where the specific accessibility issues presented by disability have been resolved.
Organisations at local, state, and federal level all have important roles in advancing the human rights of people with a disability. At the international level, the United Nations system this year commenced consideration of development of a binding Convention on disability and human rights. The Commission will be offering its experience and expertise in this process and seeking to facilitate participation by the Australian disability community.
Deputy Disability Discrimination Commissioner - Mr Graeme Innes AM
Mr Graeme Innes is a lawyer and mediator, and has been an equal opportunity practitioner for 20 years. He commenced as Deputy Disability Discrimination Commissioner in September 1999. In this role he assists with the handling of public enquiries, exemption applications and the development of standards under the Disability Discrimination Act. Mr Innes has worked in this field in New South Wales and Western Australia and is currently a part-time member of four Tribunals.
Promotion of awareness, understanding and compliance
Most work in this area has focused on development of accessibility standards in consultation with industry and community representatives as detailed under other headings of this report. The Commissioner and staff also undertake more general consultations with disability organisations and relevant industry bodies to ensure that these organisations are aware of possibilities for constructive use of the legislation and to discuss suggestions for further Commission projects.
A summit for national disability peak organisations was hosted by the Commissioner and opened by the Attorney-General in December 2001. Papers from this summit are available on the Commission's website.
Major speeches given during 2001-02 are published on the Commission's website. A list of significant speaking engagements is provided in this report. Public use of the disability rights area of the website continues to increase with over 400 000 page views being recorded for the Commission's disability rights web pages in this period.
Research and policy
Access to electronic commerce
Following its report in June 2000 on access to electronic commerce and other new service and information technology by people with disabilities and older Australians, the Commission has been assisting government and industry bodies to develop initiatives in this area, including through an Accessible Ecommerce Forum sponsored by the Commission and the Australian Bankers Association.
In April 2002 the Australian Bankers Association launched industry accessibility standards on automatic teller machines, EFTPOS and voice response services and internet banking. The Commission is now discussing plans for implementation of these standards with individual banks.
The Commission has commenced planning for a survey of website accessibility similar to but broader than that conducted regarding Commonwealth government websites for the electronic commerce Inquiry.
Accessible taxis
The Commissioner conducted a Public Inquiry on aspects of wheelchair accessible taxi services during the second half of 2001. Over 90 submissions were received from industry, government and the disability community. Public hearings were held in western Sydney, Melbourne, Newcastle and Perth. A final report was released in March 2002 after consultation on a draft report released in November 2001. The Inquiry found evidence that response times were significantly longer for passengers requiring wheelchair accessible taxis than other passengers making taxi bookings in some parts of Australia. It was not possible to judge conclusively whether numbers of accessible vehicles in taxi fleets overall need to increase to achieve equitable service, because most jurisdictions did not have, or had only very recently established, adequate performance monitoring for accessible taxis. Discussions with transport regulators on improved performance monitoring are continuing.
Television captioning
The Commission has been chairing a forum on captioning of free to air television arising from a number of complaints in this area. As at June 2002 free to air broadcasters jointly have indicated that they will very shortly be tabling a large scale proposal for increases in captioning.
A similar forum on captioning of pay television services has seen constructive discussions between industry and disability community representatives but without the same degree of specific progress to this point.
Education: Access to materials
In response to a number of complaints, the Commissioner convened a national forum on access to tertiary educational materials for blind and vision impaired students in May 2002. Almost all universities participated, together with disability representatives, publishers, the Copyright Agency, the Attorney-General's Department and the Department of Education Science and Training. Recommendations were agreed on access to copyright materials, provision by publishers of electronic formats, and better coordination of production and provision of materials in accessible formats. These recommendations are available on the Commission's website. A working party involving the Commission, the Australian Vice Chancellors Committee and other interested parties is being formed to carry these issues forward.
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.
The Commission views the temporary exemption mechanism as an important mechanism for managing the process of transition over time from discriminatory and inaccessible systems and environments to inclusive, accessible non-discriminatory systems and environments. Exemption processes are open to public participation, through publication online of the Commission's notice of inquiry and details or text of applications and also publication of submissions from interested parties.
A temporary exemption for a period of six months was granted to Queensland Rail in February 2002 regarding installation of tactile ground surface indicators to permit clarification of safety issues and other issues affecting design and installation of the indicators. The exemption was designed to facilitate discussions between relevant interested and expert parties. These discussions were close to successful conclusion as at June 2002.
An application from Westbus Ltd for temporary exemption regarding carriage on buses of unrestrained and unoccupied wheelchairs (the passenger having transferred to a fixed seat) was under consideration as at June 2002. This exemption application seeks clarification of relevant safety issues.
Action Plans under the Disability Discrimination Act
The Disability Discrimination Act provides for service providers to lodge voluntary Disability Action Plans with the Commission. An Action Plan is not a complete defence against complaints (except in those cases where an exemption is applied for and granted on the basis of implementation of an Action Plan) but it can be taken into account in dealing with a complaint. The Commission views Action Plans as a good means for organisations to structure and gain credit for their own compliance with the legislation. There has been particularly strong take-up of Action Plans from local government and from universities. The number of plans from major businesses remains small but does include two of the major banks and the two major telecommunications providers. Several major businesses are expected to lodge Action Plans early in 2002-03.
As at 30 June 2002, 228 plans were registered with the Commission (increased from 211 in June 2001). The plans comprise 27 business enterprises, 23 non-government organisations, 30 Commonwealth government departments, 32 State and Territory government departments, 88 local government organisations and 38 education providers. The register of Action Plans, and those plans provided electronically to the Commission (183 of the total), are available through the Commission's website. A number of organisations have also submitted revised plans or implementation reports during 2001-02.
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 access to premises, 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 and advance the objects of the Act thereby.
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 has continued to work with the Australian Building Codes Board, and industry, community and government members of the Building Access Policy Committee established by the Board, towards 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. This work has proved more complex than was earlier hoped but a draft standard is expected to be able to be published in late 2002 with a view to adoption in 2003.
Education
A taskforce of the Ministerial Council on Employment, Education, Training and Youth Affairs has developed draft disability standards on education. The Commission has been providing advice to participants in this process. As at June 2002 the draft standards were before the Australian Education Senior Officials Committee which was close to finalising a recommendation to the ministerial council on adoption of the standards, with only a small number of issues regarding the relationship of the draft standards to existing obligations to be clarified.
Employment
Development of disability standards on employment did not advance significantly during 2001-02, with standards development efforts being concentrated on the areas of access to premises, public transport and education.
Public transport
The Commission welcomed the passage in June 2002 of the Disability Discrimination Amendment Bill, providing power for the Commission to grant exemptions from the Disability Standards for Accessible Public Transport in the same way that it is able to grant exemptions from the existing non-discrimination provisions of the Disability Discrimination Act. Agreement previously given by the Australian Transport Council to authorisation of the standards was contingent on this provision for regulatory flexibility through exemptions being made. The standards are now expected to be placed before the Parliament in the Spring 2002 session.
Speeches
A selection of speeches, seminars and presentations made by, or on behalf of, Commissioner Ozdowski during 2001-02 are listed below. Further speeches are available on the Commission's website at www.humanrights.gov.au/disability_rights/speeches/speeches.html.
Launch of Westpac Action Plan, Westpac, Sydney, 24 July 2001.
An ABC for all Australians: Launch of Disability Awareness Resources, ABC, Sydney, 9 August 2001.
The Human Rights of Mentally Ill People: The Commission Inquiry and After, Mental Health, Criminal Justice and Corrections Conference, Sydney, 19 October 2001.
Acting Locally against Disability Discrimination, Barossa Council, Tanunda, South Australia, 29 October 2001.
Equal Employment Opportunity for People with Disabilities: How to Move from the Theoretical to the Actual, Equal Opportunity Practitioners in Higher Education Australasia, Canberra, 30 November 2001.
International Day for People with Disabilities 2001, Alice Springs, 3 December 2001.
Opening of the Commission Summit for Peak Disability Organisations, Sydney, 4 December 2001.
Presentation of Certificate of Recognition to National Australia Bank, Melbourne, 19 February 2002.
Disability Discrimination legislation in Australia from an International Human Rights Perspective: History, Achievements and Prospects, University of New South Wales, Sydney, 8 April 2002.
Launch of Banking Industry Accessibility Standards, Human Rights and Equal Opportunity Commission, Sydney, 15 April 2002.
Launch of Disparity: A Journal of Policy, Practice and Argument, ACROD Dinner, Australian War Memorial, Canberra, 22 May 2002.
The Deputy Disability Discrimination Commissioner gave around 35 speeches during 2001-02 including: access to premises in every capital city in February 2002; speeches to internet conferences on access to the web; law and other university courses on the Disability Discrimination Act and its implications; presentations to state government department heads on Action Plans; and conferences and workshops on the implications of the Disability Discrimination Act.
