Human Rights and Equal Opportunity Commission
Annual Report 2003 - 2004
Chapter 7: Disability Rights
Dr Sev Ozdowski, OAM
Acting Disability Discrimination Commissioner
Statement from the Commissioner
As in previous years, 2003-04 saw a mixture of significant achievements in some areas, steady but frustratingly slow progress in others, and sobering reminders of the continued unequal status of people with disabilities in Australian life.
The important and continuing role of the Disability Discrimination Act in providing a fairer go for Australians with disabilities was confirmed this year in a major review by the Productivity Commission of the Act, its effectiveness and its costs and benefits.
The review found that overall, the Act and the approaches taken by the Human Rights and Equal Opportunity Commission in administering it, have been reasonably effective in reducing discrimination.
This year demonstrates continued progress in a number of areas, through co-operative processes involving the Commission, other areas of government, and representatives of industry sectors and the disability community.
In particular, there has been progress towards the adoption of Disability Standards on access to premises and education. I welcomed the government's announcement in June of their intention to proceed with tabling Education Standards for approval together with amendments. These Standards do not provide prescriptive answers on every issue but by making the principles clearer, they should assist in continuing the process towards education systems which effectively include people with disabilities.
In the area of access to premises, we have continued to work intensively with the Australian Building Codes Board and industry, community and government representatives towards the development of Disability Standards. This would provide the community, industry, local government and other parties with a clearer and more coherent set of rights and responsibilities. An accessible built environment will become increasingly important to all of us as the Australian population ages. At the time of writing, draft Standards on access to premises are undergoing the regulation impact statement process, which has the important purpose of ensuring that the final Standards adopted deliver the maximum benefit for the community, while also being flexible and realistic enough for industry to implement.
Adoption and implementation of Disability Standards on accessible public transport has been one of the major areas of achievement under the Disability Discrimination Act. The results of these Standards are increasingly being seen on the streets around Australia. However, it is unfortunate that reports on implementation which are being made to the Australian Transport Council, pursuant to agreements by Ministers at the time the Standards were introduced, are not yet being made publicly available. I hope that the governments concerned will soon resolve issues standing in the way of this important accountability measure.
Alongside areas of achievement, the Productivity Commission also emphasised how much further there is to go before the objectives of the legislation are achieved - this applies particularly in the employment area. The review found no significant improvement in the employment situation of people with disabilities since the Disability Discrimination Act was introduced. Indeed, there is evidence that in some areas (such as the level of representation of people with disabilities in the Australian Public Service) that the position continues to get worse.
The review of the Act recommended making clearer the duty to make reasonable adjustments to accommodate people with disabilities in employment and other areas. This recommendation has gained added importance in light of the High Court decision in Purvis v NSW, which I am concerned could be interpreted as not including any requirement of reasonable adjustment and as covering only a lack of formal equality. Such a restrictive approach would seriously reduce the effectiveness of the Act. I trust that a speedy and effective response to this and other issues raised in the review of the Act will be forthcoming.
The history of the Disability Discrimination Act so far also makes it clear that legislation alone is not enough. The Commission will consider whether a public inquiry in the employment area would assist in identifying and achieving further measures to improve equal opportunity for people with disabilities in practice.
There are other urgent and important issues affecting human rights and equal opportunity for people with disabilities in Australia. These include health and other services for people affected by mental illness (I participated in public consultations convened with the Mental Health Council of Australia in the first half of 2004-05) and issues of access to health services more generally for people with disabilities (I convened an initial forum in May 2004 and will follow up further in coming months).
One important area of co-operative work this year has been in the development of a draft International Convention on Human Rights and Disability. The Commission has appreciated being included in the government delegation to several sessions of the United Nations Working Group considering this Convention. In March 2004, I convened two expert workshops to explore common ground between the government's objectives in pursuing reform of human rights treaty processes, and the objectives of all participants (including the disability sector) in achieving a Convention which adds value to existing instruments and mechanisms and advances the human rights of people with a disability. I believe we have been very successful in this respect. I look forward to continued opportunities to work with colleagues in government and the disability community in developing a Convention to promote more effective protection and enjoyment of human rights for all people with disabilities.
Education and Promotion
The Disability rights homepage continues to be an important source of information of Disability Rights policy and projects within the Commission. The site offers a range of resources and links on disability discrimination and other human rights and disability issues, including: information on rights and responsibilities under the Disability Discrimination Act; complaint outcomes; action plans; temporary exemptions; standards and guidelines; and links to related sites.
Public use of the disability rights area of the website continues to be strong, with 586 687 page views being recorded for disability rights web pages throughout the last financial year.
A range of publications are distributed in print and other formats on request, including: Don't Judge What I Can Do By What You Think I Can't: Ten years of achievements using Australia's Disability Discrimination Act, Know your rights under the DDA, Complaints under the Disability Discrimination Act Information Sheet and Developing an Effective Action Plan Guide.
A joint project with Marrickville Council (Sydney) on producing a guide for small business on improving access to goods and services was undertaken during the year and the guide 'Missed Business' is due for release in the second half of 2004.
Research and policy
The Commission has contributed to the early stages of a review of the Commonwealth Disability Strategy which will be undertaken during 2004-05.
Access to electronic commerce
The Commission has been working with disability organisations and the Australian Bankers' Association to review the voluntary industry standards on electronic financial services accessibility. A review of the technical content of the standards was completed by the ABA and issues raised in a review by the Commission of the degree to which the standards have actually been implemented will be used in further discussions with individual financial service providers.
The Commission has provided assistance to a number of financial institutions throughout the year as they have worked to develop accessibility implementation plans in relation to electronic and other services.
Access to tertiary education materials
Co-operative work in this area continues to make progress. Commission staff met late in 2003 with the National Library of Australia to discuss options for establishing a repository of electronic texts to avoid the need for people with print disabilities and others involved such as educational institutions to negotiate on each occasion for access to books. Other work in this area has included development of information resources to assist educational institutions in meeting their responsibilities under copyright law and the DDA.
Health access
In response to issues raised by a number of disability representative organisations, the Commission convened a forum on access to health services for people with disabilities in May 2004. Issues discussed included: physical access to medical facilities; effective access to health information and treatment for people with intellectual disabilities; inclusion of women with disabilities in breast cancer screening programs; and access issues affecting people with vision or hearing impairments. The Commission will follow up issues from this forum during 2004-05.
Insurance
Work has commenced on revised guidelines on insurance under the DDA, taking into account developments since the Commission first issued guidelines in this area (including the recent Federal Court decision in QBE v Bassanelli). See the legal section of the report for more information (chapter 5).
Sterilisation
In June 2004, the Commission prepared a submission responding to an issues paper prepared on behalf of the Standing Committee of Attorney-General's Working Group on Non-therapeutic Sterilisation of Minors with Decision-Making Disability.
Telecommunications
Following the discussion paper on disability access issues in telecommunications which the Commission released in June 2003, a high level forum on telecommunications issues was convened in November 2003. Work is continuing on an action plan following this forum.
Cinema captioning
The open captioned cinema program has continued to provide access to a number of first release captioned films in capital cities throughout Australia. This voluntary program is now functioning efficiently and its Committee has looked at ways of extending the availability of the program and increasing cinema attendance.
Promotional material, including a short film advertisement, has been developed and approaches have been made to a number of other exhibitors to encourage them to join the program.
Discussions have also commenced with relevant bodies to identify opportunities to ensure a selection of Australian-produced films are captioned.
Work on improving the availability and participation in the program will continue throughout 2004-05.
Assistance animals
A discussion paper to progress consideration of possible needs for legislative or regulatory action to give better definition to rights and responsibilities in this area was submitted to the Attorney-General for consideration in November 2003. The Attorney-General has written to the Commission indicating his intention to consider the recommendations in this paper in the context of a broader response to legislative reform issues which may arise from the Productivity Commission Inquiry.
Legislative development
Disability Standards
The DDA provides for 'Disability Standards' to be made by the Attorney-General in specified areas. These 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 the adoption of Disability Standards as they offer potential to increase certainty and clarity of rights and responsibilities for relevant parties, thereby advancing the objects of the Act.
The Commission has a function under the 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 through formal reporting.
Access to premises
The draft Standards were released for consultation in January 2004. Commissioner Ozdowski and staff participated in a series of public information sessions on the draft and the associated Regulation Impact Statement (RIS). Nearly 2000 people attended these sessions which were conducted in each capital city during February. Industry, government and community members of the Building Access Policy Committee (BAPC) made presentations to promote public input on the costs and benefits of adopting the draft. As at June 2004, the BAPC was about to commence an assessment of issues raised in submissions made during the public consultations.
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. In June 2004, the Attorney-General and the Minister for Education Science and Training announced that the draft standards would shortly be placed before the Parliament, together with amendments to the DDA confirming the validity of aspects of the Standards.
Employment
The development of Disability Standards on employment did not advance significantly during 2003-04, with efforts to develop Standards again being concentrated on the areas of access to premises and education.
Action Plans under the Disability Discrimination Act
Action Plans under the Disability Discrimination Act 1992 provide an important mechanism for organisations to structure their own compliance efforts.
As at 30 June 2004, 320 plans were registered with the Commission (increased from 276 in June 2003), comprising: 38 business enterprises, 36 non-government organisations, 33 Commonwealth government, 41 state and territory government, 130 local government organisations and 42 education providers. The register of Action Plans, and those plans provided electronically (276 of the total), are available through the Commission's website.
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. A number of organisations have also submitted revised plans or implementation reports during 2003-04.
While the Commission has no role to play in endorsing Action Plans, considerable assistance was given to a number of organisations throughout the year who sought informal advice on strategies to develop effective plans.
Exemptions
Under section 55 of the DDA the Commission has the power to grant temporary exemption from provisions of the Act which make discrimination unlawful. The Commission's policy on exemption applications is available on the Commission's website at: www.humanrights.gov.au/disability_rights/exemptions/exemptions.html or on request.
The Commission considers that the temporary exemption mechanism is not a means to excuse non-compliance, but is an important means for managing the gradual transition from discriminatory and inaccessible systems and environments to inclusive, accessible non-discriminatory systems and environments. Exemption processes are open and transparent, with notice of inquiry, applications, submissions and decisions published online at the web address above.
Regional aircraft access
On 13 October 2003, AirNorth was granted a conditional exemption for two years regarding carriage of people with disabilities on smaller aircraft.
Building access
On 25 November 2003, the Northern Districts Model Engineering Society was granted a conditional exemption for two years regarding wheelchair access to an upper floor.
Bus service access
On 8 January 2004, Buchan Bus 'n Freight was granted a conditional exemption for two years regarding access to a bus service for passengers using wheelchairs.
Subscription television captioning
On 4 June 2004, subscription television broadcasters were granted a five-year exemption regarding levels of captioning provided that they implement proposals by them for commencement of, and staged increases in, captioning during the exemption period.
Speeches
A selection of public addresses made by the acting Disability Discrimination Commissioner during 2003-04 is listed below. Some speeches can be accessed on the Commission's website at: www.humanrights.gov.au/disability_rights/speeches/speeches.html. Speeches listed below were presented by Commissioner Ozdowski except where otherwise noted.
Mental Health Council of Australia Annual Board Dinner, Sydney, 17 June 2004.
Disability Action Plans: Employers Making a Difference, breakfast briefing, Sydney, 8 June 2004 (Michael Small, Senior Policy Officer).
Forum on health access for people with disabilities, opening address, Sydney, 28 May 2004.
Address to National Disability Advisory Council, Canberra, 21 May 2004.
Roundtable on information access for people with print disabilities, 16 May 2004 (Bruce Maguire, Policy officer).
Opening of workshop on draft International Convention on Disability and Human Rights, Canberra, 25 March 2004.
Release of third progress report on South Australia's Promoting Independence Strategy, Adelaide, 3 December 2003.
Setting the Scene - HREOC Telecommunications Forum, Canberra, 28 November 2003.
National Mental Health Strategy - Future Challenges Meeting Broader Community Need: Mental Health Foundation of Australia Annual Conference, University of Melbourne, 27 November 2003 (John von Doussa QC, President).
Opening of Australian Electoral Commission Disability Access Workshop, Sydney, 14 November 2003.
Launch of Bus Industry Confederation Accessibility Guidelines, Canberra, 5 November 2003.
Copyright v Human Rights: Balancing the rights of authors and the interests of people with print disabilities, presentation to Australian Blindness Forum, 3 October 2003 (Graeme Innes, Deputy Disability Discrimination Commissioner).
Recognition Matters: Human rights and the rights of carers, Carers Australia National Conference, Canberra, 18 September 2003.
Opening the doors to employment of more people with a disability, ACROD Employment Forum, Sydney, 31 July 2003.
Local Government - gatekeepers to a more accessible community, National Local Government Community Services Conference - Just and Vibrant Communities, Townsville, 28 July 2003.
19 November 2004
