Human Rights and Equal Opportunity Commission Website

FounDDAtions: Reflections on the first five years of the Disability Discrimination Act in Australia

Elizabeth Hastings
Disability Discrimination Commissioner 1993-97

Preface
A ground-breaking Act
Eliminating disability discrimination requires active measures
Problems of definition and mechanisms for dealing with discrimination
Disability standards under the Disability Discrimination Act
Initial strategic planning issues: How could the DDA make a difference?
Information and education campaign
Catalytic complaints
Action plan development strategy
Small business involvement
Access to voting and democratic participation
An outline of Disability Discrimination Act complaints
Other activities of the Disability Discrimination policy unit
Limitations of strategic planning
Some reflections on the future
Assistance to industry and business
Building on the FounDDAtions

Preface

A few years ago, as I struggled with one or other of the innumerable barriers faced by a person using a wheelchair, I said vehemently to my companion: "If somebody would pay me, I'd do something about this - but I'm too busy and I have bills and a mortgage to pay". Well, somebody did; I hope I did; I was certainly even busier; and bills and mortgages are with us always.

As I reach the end of my appointment as the first Disability Discrimination Commissioner, and in the light of proposed structural and funding changes to the Commission, I am drawn to reflect upon the theory and practice, challenges and developments, lessons and achievements, of the first five years of operation of the Disability Discrimination Act, and to look towards directions for the next five years.

In this informal report I outline the history, process and progress of the major projects and activities undertaken by the Commission. I discuss the decisions and philosophies lying behind the legislation itself, the development of Standards under the Act, the use of Action Plans as a tool for implementation of the Act, other significant endeavours of the Commission aimed at the realisation of the objects of the legislation, and the contribution of the Complaints and Hearings functions of the Commission to these outcomes. Finally I indicate some areas where I think the Commission could have a constructive influence in the future, and how results may best be produced.

Although I am writing this report at the end of my term of Office, and there is no likelihood of my being replaced, the work of the Commission and of the Disability Discrimination Policy Unit will continue, and the Disability Discrimination Act remain in effect, for the foreseeable future despite funding cuts and restructuring. I am confident that the Commission by any other name will still be a Human Rights Commission and will continue to work with all sectors, including those with responsibilities under the Act, to assist them in understanding and compliance in order to create a discrimination-free community. The Commission will also continue to speak out against injustice and discrimination wherever it may be found and whoever such protest may outrage.

It has been an extraordinary privilege to have been associated with this work and with this organisation, and to have had the opportunity to influence the shape and substance of the nation's response to the aims and objects of the Disability Discrimination Act.

I recognise and acknowledge the contribution made to this process by a wide range of people, including the National Disability Peak Representatives, the Standards Coalition, all I have worked with in the various interested sectors and Mr Kym Duggan, of the Federal Attorney-General's Department.

It has also been an extraordinary privilege to have worked so closely with the staff of the Commission who in their daily work, their advice, their grappling with the as yet uninterpreted and unknown, their deep commitment to the spirit and meaning of the legislation and their readiness to discuss, argue, persuade and support have made an immense contribution to our enterprise of eliminating disability discrimination. The Commission and individual Commissioners are in the end as effective as the staff who support us: upon them rests the detailed daily work of researching and developing policy; responding to enquiries from the sectors making up our overall constituency of those with rights, and those with obligations under our legislation; organising meetings, speaking engagements, travel schedules and regional visits; ensuring the smooth running of the various sections and of the organisation as a whole; and carrying out on behalf of the Commission the difficult and demanding work of complaints management and resolution at all its stages.

I take this opportunity to acknowledge particularly the staff of the Complaints and Legal Sections who have worked on Disability Discrimination matters. The Complaints team, first under the leadership of Mary O'Sullivan and now of Karen Toohey, both of whom have brought a high level of analysis and painstaking attention to detail to the work, has achieved wonders in eliminating backlog, creating positive outcomes and dealing with the multiplicity of unprecedented situations that arises in the administration of a new piece of legislation. They have been supported by the Legal staff, under the leadership of Mark Nicholls and, with her specific focus on Disability Discrimination, Susan Roberts. The regular "Legal Meetings" in which we have vigorously discussed the Act and its interpretation in complex situations have contributed greatly to the management of complaints and to our policy work.

Within the Disability Discrimination Policy Unit there has been throughout the five years a strongly held vision of a community free of disability discrimination, a willingness to explore and create the means to attain that vision, and a spirit of vitality and cooperation. I especially recognise the contribution of Susan Ives, whose personal and administrative assistance has been enjoyed and relied upon by me and the whole policy unit; Therese Sands, whose creative and persuasive skills have resulted in both Action Plan Guides and focussed workshops, and in a number of very significant Action Plans; Sandy Wright, with her communication skills in the arcane world of insurance and superannuation, and her wonderful ability to express complicated ideas in clear and plain English; Michael Small, whose breadth of knowledge, eye for detail, and consultative and negotiation skills have been essential in the development of Advisory Notes and draft disability Standards; and David Mason whose vision, legal acumen, sound advice, capacity to write just what I wanted to say, and personal support have been of immeasurable value to me, and to the outcomes achieved by the Unit.

All that we have achieved in the relatively short time of the Disability Discrimination Act has been achieved by all, and all should be proud of what has been accomplished.

A ground-breaking Act

Late on 18 October 1992 the Disability Discrimination Act was passed in Parliament in a bi-partisan vote. On 17 December 1992 I was appointed as Australia's first Disability Discrimination Commissioner. On 8 February 1993 I took up this appointment to the Human Rights and Equal Opportunity Commission, and on 1 March 1993 the Disability Discrimination Act came into effect. This was the first federal legislation to promote and protect the civilian rights specifically of people who have disabilities, rather than to provide or regulate services to people who have disabilities. As such it was a ground-breaking Act.

This may seem an odd thing to assert given that disability had already been included for up to eleven years in the equal opportunity and anti-discrimination legislation of NSW, Victoria and SA. It had also been recently included in the new WA and Queensland legislation, each legislative authority taking the best from the preceding model. The Northern Territory and the ACT soon had equivalent legislation, leaving now only Tasmania without its own state developed and endorsed anti-discrimination Act covering disability discrimination.

Why, then, do I describe the Disability Discrimination Act as "ground-breaking"?

There are various reasons: first, under the Disability Discrimination Act "disability" is not one of a list of proscribed grounds of discrimination but is the proscribed ground. This is very significant in that people who have disabilities are not in general used to availing themselves of the protections and benefits of what could be called "mainstream" legislation. People with disabilities have limited experience of belonging in the main stream and tend therefore not to assume or assert their rights. Having a piece of legislation which makes disability the focus rather than one of many foci has enabled people with disabilities to own it and use it effectively.

Another reason to describe the Disability Discrimination Act as "ground-breaking" is that it established a Disability Discrimination Commissioner whose primary role is the promotion and protection of the rights of people with disabilities: this activity is not dependent on the Commissioner making disability a priority, or on funds which may otherwise be spent on more clamorous or numerous claimants but rather has its own funds, albeit limited, and is its own priority. Furthermore a specialised or dedicated Statutory Office Bearer has the status and support necessary to work at the highest levels of government.

The Disability Discrimination Act can also be seen as "ground-breaking" in its broad and inclusive definition of disability, in the wide sweep of public life influenced by the legislation, in its provisions for the development of national Standards, and in its encouragement of enterprises to consider and plan for non-discriminatory provision of goods, services and facilities through the creation of Action Plans. Furthermore there are very few exemptions from the Disability Discrimination Act.

The Disability Discrimination Act has as its first object the elimination of disability discrimination as far as possible: this, too, is a "ground-breaking" concept.

It has been important to recognise that the object really is the elimination of discrimination, not something more modest and manageable like providing remedies for a few complainants.

I do not dismiss the importance of effective provision for complaints of discrimination: individual or representative remedy is a significant aspect of our anti-discrimination law. My point is, however, that much of such success as has been had under Australian disability discrimination law has come from the recognition and use of complaints as a driving force for other, structural, measures rather than resolution of individual complaints being regarded as the major end, or effective in itself.

If the objective of eliminating discrimination is taken seriously, it is obvious that we are talking about social change on a very large and ambitious scale.

In the drafting of the international Covenants on human rights, one of the negotiators (Rene Cassin) pointed out that "it would be deceiving the peoples of the world to let them think that a legal provision was all that was required ... when in fact an entire social structure had to be transformed".

This point is particularly apt in talking about eliminating disability discrimination.

Finally, the fact that the Disability Discrimination Act is national in its coverage has allowed people with disabilities, and those with responsibilities under the Act, to create change at the national level rather than only State by State by Territory. Of course not all matters considered under the Disability Discrimination Act have national implications, but sufficient do to have made far reaching changes which will benefit all Australians.

Eliminating disability discrimination requires active measures

Disability discrimination can arise in the same ways as race or sex discrimination: from prejudice or fear of difference; from restrictive social roles, and assumptions that a particular group is not entitled to expect fully equal participation in the life of the community; from inappropriately applying generalisations to individuals based on group membership; and from the results of past inequality affecting ability to acquire qualifications.

There are also other dimensions to discrimination, dimensions which are more obviously important in relation to disability.

It is possible, though wrong, to interpret and administer race or sex discrimination legislation as if all that is required is a passive refraining from discrimination: ensuring "colour blindness" or "gender neutrality" and treating the relevant ground of discrimination as simply irrelevant to permissible decision making. Such interpretations have at times found favour with courts and tribunals in Australia. Nevertheless, in some cases "neutrality" can entrench rather than prevent discrimination. For example, claims for recognition of and respect for the prior rights of Australia's indigenous people are met, in ignorance or bad faith or both, with claims that there should be no special rights based on race and that we should all be equal under the law.

With disability it is clearer that simply "treating equals equally" is not sufficient for eliminating discrimination. It is also more readily - sometimes too readily - accepted that disability makes a relevant difference.

People with disabilities have long been systematically defined out of various markets, client and customer groups and other aspects of citizenship and community. In many cases this has taken very solid form: buildings that not everyone cannot get into; transport and communications systems that not everyone can use; information that not everyone can receive; education systems not designed to accommodate everyone capable of or entitled to benefit from them.

So with disability it is particularly important to recognise the degree to which eliminating discrimination requires active measures. I think the distinction between anti-discrimination and affirmative action is over-stated even in relation to race and sex. Certainly, the elimination of disability discrimination requires actions which might as well be termed affirmative.

Problems of definition and mechanisms for dealing with discrimination

The Australian legislation follows the conceptual model developed by courts interpreting the United States Civil Rights Act in categorising discrimination into direct discrimination, or different treatment on the basis of the ground of discrimination; and indirect discrimination, or treatment which may be applied equally but has a disparate impact.

Statements that the Disability Discrimination Act is based on the Americans with Disabilities Act are regularly made, but are not accurate in all respects.

Definition of disability

In particular the definition of disability in the United States act, with its emphasis on whether a person is "limited in a major life activity" was seen as a model to be avoided rather than followed. Experience with the U.S. legislation has, I think, supported our concerns in this area. A large proportion of the pages in the extensive regulatory and guidance materials issued under the Americans with Disabilities Act is taken up with issues of the identification of who is, and is not, a person with a disability. This is not only a misdirection of effort and attention away from the real objective of eliminating discrimination; it suggests that we are talking about a dangerous or a protected species, and could be expected to encourage a reaction from employers and others that the safest thing to do with people with a disability is avoid having to deal with them.

Reasons for a restrictive definition of disability like this include an understandable desire by people who have to live with permanent and major disability to ensure that they are the main beneficiaries of disability discrimination legislation, rather than attention and administrative resources being dissipated in addressing more transitory or trivial conditions. (I will come back later to issues of who has benefited most so far under the Australian legislation.) There are also issues of political credibility of legislation if minor ailments are treated as disabilities.

A restrictive definition of disability is nevertheless an ineffective method for dealing with these issues and works against the legislation achieving its objects.

One result is that people with a disability, seeking the assistance of anti-discrimination law in asserting their ability and entitlement to participate equally (including with any assistance and accommodation which may be required and to which the law entitles them), may paradoxically find it necessary to argue that their ability to participate is in fact limited by their impairment in order to qualify for the protection of the law.

There have in fact been cases under the United States legislation where persons who clearly did have a disability were denied a remedy for discrimination because they faced exclusion only from a particular job or small class of jobs, and not from the whole activity of employment. This seems astonishingly absurd and unjust: claimants under race or sex discrimination laws are not told that they have no right to redress for discrimination in their chosen field because they can always look for a job somewhere else; and nor should people with a disability be told this.

This appears to be a residual habit: "You should be grateful you have a job at all, without making even more demands"; that is, work for people who have disabilities is still seen, in this scenario, as a welfare item requiring gratitude rather than a right.

Before its revision a few years ago the NSW the anti-discrimination act defined intellectual disability as an impairment in "the structure and function" of the brain. People with an intellectual disability are not always able, however, to point to the part of the brain which had "impaired structure": that is not always the nature of intellectual disability. Finally, in one case, a judgement was made that the phrase "structure and function" was what lawyers call a hendiadys, that is, a single idea expressed in two words joined by a conjunction. Therefore the complainant was a disabled person within the Act. This was an important decision for people with intellectual disability seeking remedy for discrimination at that time in NSW, but would not have been necessary had the legislation not incorporated this diagnostic language.

A similar problem occurred, again in NSW before the ADA was revised, to reflect the definition of disability in the Disability Discrimination Act, when a person with epilepsy initiated proceedings under the ADA. In this case, the problem was that this person did not fit into the definition of physical disability and had to be represented as having an intellectual impairment in order to seek redress of an injustice.

These are some of the problems arising from closed definitions of disability.

A major strategic choice at the outset, then, was to present disability discrimination legislation not as rights of a special group but as the rights which any of us have if we happen to have a disability now or acquire one in the future. It would be not only ironic but also dangerous for discrimination law itself to reinforce a view of disability as something which happened to "them", and of people with a disability being a group defined out of the mainstream of the community.

The Disability Discrimination Act is predicated upon this fundamental assumption that disability is a part of ordinary human community, that people who have disabilities are not different or separate from our community but are an integral, belonging part of the whole. Certainly disability is not always convenient, attractive or desirable, but it is an ordinary attribute of being human, and human societies must stop unnecessarily and unlawfully excluding people who have disabilities from their ordinary activities. Many people who have disabilities do not wish to be altered, cured or transformed. They do wish their equipment would work reliably; and that transport, education, shopping, professional and other services, work, entertainment, banking, insurance and information were accessible without discrimination.

People who have disabilities do not wish to "be included": they wish it to be acknowledged that they already belong.

Recognition of disability as simply a part of the human condition provides definite strategic advantages. It requires a moral effort to place ourselves in the position of someone of the opposite gender, or of a different racial background, or who has a different political opinion or sexual preference; but disability is something that can happen to any of us, and as we live longer it increasingly probably will.

Approaches to discrimination

Some features of the Disability Discrimination Act were influenced by U.S. models but most of the structure, for better or worse, was based on or borrowed from Australia's Sex Discrimination Act. The drafting of the Disability Discrimination Act also owes a heavy debt to Australian State anti-discrimination laws and recommendations made by the agencies administering them.

Some features of the Americans with Disabilities Act were regarded as highly desirable but were not followed because they were not politically achievable in the Australian environment at the time.

The Americans with Disabilities Act includes mandatory provision for self-evaluation by State and local government agencies of their compliance with the legislation, and requires transition plans to be developed for the elimination of any barriers identified in a self-evaluation. This provision follows a similar requirement for US Federal government agencies under the Rehabilitation Act of 1973. These transition plans, however, do not appear very readily accessible, and our information on them at present is limited.

The Disability Discrimination Act provides for the development of "Action Plans", both by public and private sector service providers. These are similar in intent to transition plans under the Americans with Disabilities Act but the legislation only invites development of such plans, rather than making them mandatory.

The Federal government did however make Action Plans compulsory as a matter of executive decision for Federal departments and agencies under the Commonwealth Disability Strategy adopted in 1994.

It remains (just) to be seen how many agencies comply with the target date set of 1997 for lodging these Action Plans. It also remains to be seen how much change is resulting from those plans which have been adopted. Agencies have been required to submit progress reports on their implementation of the Commonwealth Disability Strategy, but there has not yet been any systematic audit of Disability Discrimination Act compliance by Federal government agencies comparable to that done for the US Government in relation to compliance of its agencies with the Americans with Disabilities Act. Neither has there been an across the board audit of compliance on particular issues such as accessibility of premises, communications or information.

The Australian Government is, I understand, soon beginning an evaluation of the effectiveness of the Commonwealth Disability Strategy so far, and the Human Rights and Equal Opportunity Commission will be participating in that evaluation.

Disability standards under the Disability Discrimination Act

One feature which the Disability Discrimination Act did pick up from the Americans with Disabilities Act, and from submissions from the disability community, was the need for more detailed standards which would translate general concepts of discrimination into terms which gave more specific indications of what is required and which organisations with obligations under the Act could therefore more readily understand, comply with and be held accountable for complying with.

Most of the "extra" issues which disability discrimination presents, and most of those where anti-discrimination legislation can make a decisive difference, need to be analysed as indirect rather than direct discrimination. In many cases the problem is not that people with disability are treated differently and directly excluded from buildings or transport or communications and information because of disability, but rather that these bits of the world are the same for everyone but have not been designed in a way that people with a disability can use.

It is commonplace among anti-discrimination lawyers that establishing indirect discrimination in litigation under the sort of provision contained in the Sex Discrimination Act and the Disability Discrimination Act presents substantial problems of evidence and interpretation.

A much more important issue for disability discrimination at least is not the complexity of litigating under these provisions, but the difficulty of understanding and complying with their requirements without litigation.

The availability of procedures for complaints resulting in enforceable orders is clearly an important incentive to compliance with legislation. But no legislation is going to be very effective if it is complied with only or mainly when compliance is ordered by a court or tribunal. We can expect limited success in achieving compliance if the legislation has no reasonably definite meaning reasonably clearly ascertainable in advance of judicial interpretation.

The existing indirect discrimination provision states, in effect, that it is unlawful to impose an unreasonable condition or requirement which has a disproportionately adverse effect on people with a disability compared to people without that disability. It can be seen that I am already simplifying the words of Disability Discrimination Act section 6, and still not ending up with a statement which is particularly clear.

It is not going to be inherently obvious to everyone whose organisation operates from a physically inaccessible building; or provides information only in print on paper; or gives only a voice telephone contact point, for example, that they have imposed a "condition or requirement", or that this will disproportionately exclude people with some types of disability, let alone whether this is unreasonable.

Furthermore, it is certainly not going to be inherently obvious what to do about it.

For example, it is clearly impossible to expect all buildings to be designed to be equally accessible and useable by people with a disability, simply by reference to the terms of a general indirect discrimination provision. The same applies for an equally accessible telecommunications or transport system, even if we add some attractively presented pamphlets from anti-discrimination agencies and some precedent-setting case law.

Some advocates for people with a disability have been opposed to the development of standards under the Disability Discrimination Act on the basis that to define rights may limit them. This is of course an old argument, advanced against the adoption of the United States Bill of Rights and more recently used by opponents of a Bill of Rights for Australia. In the first case the argument was sincerely put, but has not been borne out by history. In the second case, it is reasonably clear that some proponents of this argument were concerned not to preserve but to prevent more effective protection of human rights.

I do not question the sincerity of the holders of this adverse view of Disability Discrimination Act standards but I think that on this issue they lack strategic judgment. Time spent waiting for the Really Big Complaint, that may be just around the corner and that will compel widespread compliance at a higher level than any negotiated set of standards, is time during which more inaccessible buildings are built, more inaccessible transport vehicles are put into service, more development of communications technology occurs without incorporating accessibility. It is also time wasted from the lives of people with a disability during which they might have enjoyed greater access and equality, rather than accepting continued exclusion as the price of an uncertain prospect of the achievement of an enthusiast's ideal vision of rights somewhere in the future.

This does not mean that regulations or standards are necessarily the best road forward in every area. The issue is more that in some instances development of standards may not be worth the effort it takes, rather than that standards, if developed, will diminish rights.

The Americans with Disabilities Act specified dates by which regulations had to be made setting more specific standards on various subjects.

In the Disability Discrimination Act it was possible only to secure provision that Standards could be made, not that they had to be by specified dates, and even now the power to make Standards is more restricted than the areas covered by the Act. The reasons for this are confusing even to those closely involved in the development of the legislation. A major factor seems to have been concern from a number of major areas within the Federal Government that standards would make the legislation more effective, and therefore potentially more expensive for business and for government itself, compared to a purely complaint based regime.

The Americans with Disabilities Act allocates responsibility to different agencies for developing regulations in different areas, to give effect to its purpose of eliminating discrimination. The Secretary of State for Transport was given responsibility for bringing forward regulations on transport, for example, and the Federal Communications Commission has major responsibilities for accessibility of telecommunications services and other aspects of communication such as captioning of television and video programs.

There are great advantages in this kind of approach. An agency specifically responsible for regulating an area such as building access, or transport, or communications, can be expected to have greater expertise and institutional authority in that area, and better knowledge of the interests affected, than can an anti-discrimination agency.

In the Disability Discrimination Act all direct responsibility for standards development was left in the law and justice area of government. The Attorney-General was nominated as the minister who may make standards in relation to employment, education, transport, accommodation or the administration of the Federal government's own laws and programs. The Human Rights and Equal Opportunity Commission was the only agency nominated as having a responsibility to advise on the development of standards.

This, of course, was in addition to general responsibilities for promoting understanding and awareness of the legislation; receiving Action Plans; dealing with applications for exemption; and handling complaints.

Initial strategic planning issues: How could the DDA make a difference?

Faced with a broad palette of legislative responsibilities and a broad canvas of changes needed to achieve the objects of the legislation on different issues affecting a diverse range of people with a disability, we did what government agencies usually do: we tried to produce a strategic plan which would give us both a manageable set of priorities and good prospects for large scale effectiveness.

One of the first issues which we had to face up to without conceding defeat at the outset, was why or how the Disability Discrimination Act could be expected to make any real difference to people who have disabilities.

By the time the Disability Discrimination Act came into effect, state or territory legislation on disability discrimination was already in force or well advanced in development in every Australian jurisdiction other than Tasmania as part of more general anti-discrimination Acts. Despite some differences of detail in definitions of disability, defences provided for and exceptions, in most points this legislation was similar to the Disability Discrimination Act. Similarities included provision for complaints to an agency responsible for investigation and conciliation but with recourse to enforceable remedies if required; and using similar models of direct and indirect discrimination

In some states, the administering agencies had pointed to gaps and defects which in their view severely restricted the effectiveness of the legislation in relation to disability. As I have indicated, the drafters of the Disability Discrimination Act gratefully accepted this advice. In other states, administering agencies promoted the legislation in their jurisdiction as generally a model for others to follow.

Despite this, the disability community represented very strongly that national legislation was needed, and needed to apply generally rather than only to those areas which state legislation had not dealt or could not deal with such as the Federal government's own administration. Their overwhelming view was that the disability discrimination provisions included in general anti-discrimination laws had not been very effective in achieving change on any large scale beyond the individual outcomes of complaints.

That may have been too pessimistic a picture, and may have been unfair to the people who drafted or administered pre-existing State laws. In some areas, such as employment and education, changes towards greater inclusion and equality could be seen through the 1980s and into the 1990s prior to the introduction of the Disability Discrimination Act, even if it is difficult to assess what the contribution of anti-discrimination laws was to those changes (differentiated, for example, from the effect of the International Year of Disabled Persons and the continuing community activism springing from this).

There was plenty of evidence available of change not occurring, or not occurring enough in the right direction: buildings still being built or renovated to be inaccessible; very limited accessibility of telecommunications systems; most public transport still being designed and operated on the basis that people with a disability are not part of the public.

Why?

There are two major parts to an explanation of this. The first is in the response of people with a disability to general anti-discrimination laws. People who are accustomed to segregation into specialised services and facilities may not believe that a mainstream general anti-discrimination law actually is intended for their use. In this sense having a specifically named Disability Discrimination Act may serve in a way analogous to the access symbol on the door of a structure which in other respects, perhaps, is not hugely different in its accessibility from the surrounding structures of state laws, and which is not universally superior where there are differences.

Something related to this might explain in part why State and Territory governments and others with obligations under the Disability Discrimination Act sometimes speak as if the Disability Discrimination Act were the only applicable law in the area, rather than there being fairly closely parallel State or Territory legislation in all jurisdictions other than Tasmania. Of course, it might also be convenient to approach obligations to eliminate discrimination as a unilateral mandate from central government for which the central government might be expected to pay, rather than as also existing under imperfectly fulfilled commitments of those State and Territory governments themselves.

The second point is the need which I have referred to already for active measures to deal with disability discrimination, rather than relying principally on public education and goodwill, and complaint resolution where those may fail.

Need for policy focus

The federal government has decided that a dedicated position of Disability Discrimination Commissioner is not required to be maintained within the Human Rights and Equal Opportunity Commission.

I have made it clear on numerous occasions to the Attorney-General and to the Prime Minister that I consider this to be a significantly retrograde step for people who have disabilities; it is too early, after only five years of operation of the Act, to leave it in generalist hands - no matter how benevolent or committed. It is the experience of people who have disabilities throughout Australia that where disability is one of a list of matters to be attended to it does to retain the high priority required for systemic change to occur. Neither do those who have not lived with disability have the necessary awareness, in general, of wherein discrimination lies.

The Commission is certainly not responding to the Government's plans by giving up the task, but it has been important to have, and I think it is still essential to maintain, a strong and distinct policy focus on disability discrimination.

This need not mean and has not meant a vast bureaucracy. Staffing of the disability discrimination policy function in the Human Rights and Equal Opportunity Commission has been from 3 to 5 middle ranked public servants. One of the conclusions most reinforced by experience under the Disability Discrimination Act is that an anti-discrimination agency does not need to be directing everything, and in fact will generally be more effective when it is informing and catalysing activity by other agencies in government and organisations in society. This is not to say that we could not use moderately larger resources than we have had to achieve more, but the modest staffing that we have had has been in itself a much greater resource than available to any of the state or territory agencies for this purpose.

People with a disability are an important constituency but not the only one

Thus reassured that the task of using the Disability Discrimination Act towards eliminating discrimination did not need to be abandoned at the outset as hopeless, we returned to the strategic planning process.

From the beginning it has been my firm view that my task, and that of the Human Rights and Equal Opportunity Commission, is to be an advocate for the legislation itself: the Act has as its objects the elimination as far as possible of discrimination against people who have disabilities; the ensuring of equality before the law for persons with disabilities; and the promotion within the community of the principle that persons with disabilities have the same fundamental rights as all members of the community. These objects can only be realised when all sides of the equation are taken into account and are treated with equal respect. That is, those with responsibilities under the legislation are as much entitled to education, assistance and support from me and the Commission as are those whose rights are being protected and promoted. I have therefore developed to the best of my ability constructive and cooperative relationships with business and employer groups and all levels of government as well as consultative relationships with people with disabilities, and their representatives, associates and advocates.

This has not always been an easy principle to adhere to; there is a strong temptation for agencies concerned with social justice to spend most of their time talking to people who already agree with them. Among people who have experienced disadvantage there can be a strong expectation that an anti-discrimination agency should always take their side: so much so that any attempt to take into account the concerns of people with responsibilities can be perceived as bias or selling out.

This said, we did decide to make a major focus of educating representatives and advocates of the disability community: because of the importance of informed and effective use of complaints mechanisms as a driving force for achieving the objects of the legislation, and because of the importance of the input of people with a disability for the other mechanisms provided under the Act, including development of Action Plans and Standards.

We invested considerable time and resources in developing a manual for advocates to assist them to understand and use the legislation. The Commission had a major part in the decision to establish specialist disability discrimination legal services, using resources which had been allocated by government for not very precisely defined promotional and advocacy purposes. These had an intended role of informing and training disability community organisations, as well as assisting in the preparation of key cases or arguing these themselves.

Some highly important cases have been brought with the support of the specialist legal advocacy services: in particular those in relation to transport and telecommunications which I will discuss in more detail later. However, in my view there has been less impact than hoped for in raising the ability of disability community organisations to use the legislation effectively themselves.

Comments were sought from disability community organisations on the Commission's draft strategic plan for the Disability Discrimination Act. Regular meetings have been held to discuss the progress of projects within this plan and to discuss overall priorities. Standards development processes have featured lengthy and extensive community consultation as well as formal representation of disability community organisations on steering committees.

Input from these organisations is clearly important, but the methods we have used to date have been disappointing in the results achieved compared to the resources invested, both by the Commission and by organisations and individuals in the disability community. One of the things we clearly need to do as we complete five years of the Disability Discrimination Act is to review how we are consulting with the disability community and the purposes for which those consultations are conducted.

The amount of attention that has been given to standards development by disability community organisations and by the specialist legal advocacy services may have been at the expense of some potentially effective use of the legislation as it already is. The Commission needs to keep looking closely at the level of priority it is giving to different strategic mechanisms in different areas under the Disability Discrimination Act, and I think other organisations need encouragement and assistance to do the same. Standard setting is not an end in itself but a means to be adopted where the outcome, or perhaps even the development process itself, are likely to produce increased compliance sufficient to justify the effort relative to other uses of time and resources.

Information and education campaign

A substantial part of the first year of the Commission's work and budget for implementation of the Disability Discrimination Act was the development of a community information and education campaign, aimed both at people with a disability and at organisations with responsibilities under the legislation.

This campaign was carefully planned to make the most effective use of a very limited budget. It was generally well received at the time, and there is still substantial demand for some of the campaign materials such as booklets and posters. There is, however, now a fair bit of evidence that the campaign had only patchy success in generating awareness of the existence or effect of the Act, even among the disability community, and less still among some important sectors of people with responsibilities. I draw this conclusion despite the immediate positive effect evidenced by the number of enquiries received on our hot line over the few weeks following the campaign, and the significant increase at that time in the lodgement of complaints. (Statistical information on hot-line and other enquiry calls, and complaints received, is available in the 1993-94 HREOC Annual Report.)

One response to this limited outcome would be that larger scale community education efforts are required. The Federal Government's Office of Disability is in fact in the early stages of planning a campaign about disability discrimination, which we hope may extend what the Commission was able to achieve.

Another response would be to reflect on evidence from the United States experience. Information and awareness, education and training efforts regarding the Americans with Disabilities Act have far exceeded anything we have been able to do or attempt in Australia. Even so, there has been evidence of disappointingly low levels of awareness of that Act both among people with a disability and in business.

Perhaps the conclusion should be that not too much should be expected of education campaigns, general or targeted, at least as an initial strategy.

My own view is that, in the Australian context at least, information, education or advertising campaigns directed at changing attitudes have, and always have had, at best a subsidiary place in eliminating disability discrimination. Attitudes towards people with a disability as objects of pity or fear, best segregated in separate accommodation, education, employment and services (if they are thought of at all) are far more likely to change under the impact of experience of people with a disability as equal participants in ordinary and mainstream activities: as work colleagues; as classmates in school or university or college; as customers and so on. Our principal focus should continue to be on the institutions and structures that perpetuate exclusion and marginalisation, with attitudes seen as only part of this.

Experience can, of course, also educate people and organisations in the other direction, to treat requirements of anti-discrimination laws as less than compelling. There was something of this effect in the Australian experience prior to the Disability Discrimination Act. General discrimination provisions were theoretically in force but, as I have indicated, it was very difficult in many cases to ascertain in advance what needed to be done to comply. In these circumstances, it would not be surprising to find many people with responsibilities deciding to manage the risk of liability for discrimination by ignoring it. The prospect of a successful complaint might be regarded as being as severe as being struck by lightning, but about as unpredictable and unlikely.

Experience under the Disability Discrimination Act has done a lot to shift these perceptions, although the shift is certainly not uniform across all the areas dealt with by the legislation.

In addition to our strategic plan and consultations, analysis of the first year's complaints soon made clear where lay the major concerns of people with disabilities. The majority of complaints concerned experiences of discrimination in employment; in access to premises and goods, services and facilities; in public transportation; in education, and in insurance and superannuation. Therefore, as well as the careful investigation, and conciliation where possible, of complaints in the Complaints Section of the Commission, the policy unit began to work on these areas with a view to systemic change rather than the piecemeal and uncoordinated changes which are often the only ones possible through response to individual complaints.

Of course, as a person who had lived with a disability all my life, and who has lived, studied and worked among people with various disabilities, I was fully aware of areas requiring urgent attention. Early in 1993 I began discussions with a range of "key stakeholders" who were sympathetic and interested - but whose sense of urgency did not match my own. It was, in the end, the impetus provided by successfully conciliated complaints, or those which I referred to the Commission for formal hearing, which resulted in the outcomes described below.

Catalytic complaints

Public transport

Complaints about lack of equal access to public transport provide perhaps the most striking example of the effectiveness which complaints under the Disability Discrimination Act and its state and territory equivalents can have if used effectively and linked to other mechanisms such as those the Act provides for action plans, standards and exemptions.

A small handful of such complaints under the Disability Discrimination Act have led, in sequence, to:

agreement that a particular new railway station would be accessible rather than inaccessible to people with physical disabilities;
a commitment that all new railway stations in New South Wales would be designed for access for all people with a disability;
agreements regarding accessibility of new city buses in Darwin, Adelaide, Perth and Sydney;
agreement by all Transport Ministers to a strategy including accessibility of all new public transport facilities and services throughout Australia, and all existing services and facilities within 20 years;
development of draft Disability Standards under the DDA to give effect to this strategy.

Crucial to these processes was a complaint from an individual young woman who would not accept that she should not be able to use, like any other student, a railway station being built to serve her university. However, this would not in itself have been sufficient to produce the results described without active policy intervention and without legislative structures into which strategies could be fitted.

Part of the impact of the initial railway station complaint was a result of my writing to and meeting with the relevant Minister for Transport to point out the potential for similar complaints to delay other major developments such as the railway lines being built to serve Sydney Airport and the facilities for the Sydney Olympics, and the obvious need to avoid this delay. Part of the Minister's response was for his department to take a leading rôle in the subsequent development of draft standards on public transport under the Disability Discrimination Act so that public transport providers could plan and implement services and facilities on the basis of more certain, and more practically described, obligations.

In response to this and other complaints, the Australian Transport Council (ATC - made up of all Transport Ministers) agreed to a strategy including accessibility of all new public transport facilities and services throughout Australia, and all existing services and facilities within 20 years; and set up a task force for the development of draft Disability Standards under the Disability Discrimination Act to give effect to this strategy.

I was the Attorney-General's representative on this task force, with the role of advising about the legal and human rights aspects of the Standards, and of ensuring that the processes were such that the Attorney-General could confidently accept the draft Standard for consideration. Others on the Task force were representatives of all Transport Ministers, private bus and taxi industries, Local Government and people with a disability.

These draft Standards were accepted in April 1996 by all Transport Ministers, who reconfirmed this position at their July 1997 ATC meeting, and again in November 1997. The draft Standards are currently subject to the Regulatory Impact Statement (RIS) process which new regulations developed by joint Federal-State processes must undergo before authorisation. The RIS process is still continuing, after a first report from the consultants was rejected by the steering committee because of excessive cost estimates, inclusion of unnecessary requirements, and patent misunderstanding of the provisions of the draft Standards, particularly the unjustifiable hardship provisions. At its November meeting the ATC set a deadline of a further six months for the completion of the RIS.

In South Australia and Western Australia the key to forward movement, after a stimulus provided by complaints, has been the ability of the Commission to grant exemptions. Exemptions were granted to transport authorities while, and on condition that, they implement voluntary Action Plans under the Disability Discrimination Act, which they had developed in consultation with the disability community.

The Western Australian authorities did not seek an extension of the initial one year exemption they received. They appear to be confident that their broad ranging Action Plan and the progress being made in implementing it are sufficient to manage the risk of complaints rather than needing the protection of a further exemption. In South Australia the initial action plan and the initial exemption were more narrowly based, dealing principally with access to buses by people using wheelchairs. A broader exemption has now been applied for and granted, on the basis of a Revised Action Plan which addresses a wider range of service issues and types of disability.

I have been concerned by evidence of a growing impression that rights and obligations in this area do not yet exist or have been suspended, and that major action to achieve equal accessibility to public transport may and should be deferred pending authorisation of the Standards. Such a rumour is entirely without foundation. The Disability Discrimination Act does exist now, including its provisions for access to premises (which include vehicles, vessels and aircraft) and has existed in all its terms and provisions for nearly five years. The Standards will clarify these terms and provisions, and allow manageable time frames for modifications to new and existing equipment and facilities, but they will not bring any new legal provisions over and above those already existing under the Disability Discrimination Act.

Because of the above-mentioned misconceptions I recommended at our meeting in October 1997 that the Commission issue a short Disability Discrimination Act Advisory Note on public transport. This recommendation was adopted by the Commission and the Advisory Note has now been issued. (This and other Advisory notes issued by the Commission are available on our World Wide Web site.) The Advisory Note endorses the draft Disability Standards for accessible public transport as generally reflecting existing Disability Discrimination Act obligations. It indicates that the Commission will take these draft Standards into account in complaint handling and in considering exemption applications.

Tangible outcomes:

A draft Disability standard for accessible public transport has been accepted and twice re-confirmed by the Australian Transport Council which has set a deadline in June for the completion of the Regulatory Impact Statement and has set up an implementation committee
The cities of Perth and Adelaide have lodged Action Plans with time lines under the Disability Discrimination Act for the provision of accessible public transport based on the draft Standard
In Perth accessible train carriages have been under development and trial for two years
In Adelaide all city loop buses, and now buses on some other routes, are accessible
The relevant NSW departments of transport are now developing Disability Discrimination Act Action Plans
There are two bus routes in Sydney now undergoing trials of accessible buses
It has been announced that the new consignment of 300 buses for NSW State Transit will be fully accessible
Railway stations to serve Sydney Airport and the Olympic facilities are being built to be accessible
The City of Darwin has confirmed that all bus fleet in future will be accessible to people who have disabilities.

Work for the future:

There are still several States and Territories that have not yet developed Action Plans under the Disability Discrimination Act. The Plans that do exist are all in response to one or more complaints under the Act - there is something to be learnt from this.

Access to buildings

Over 40% of complaints handled by the Commission in the 1996-7 year relate to access to goods, services and facilities, and to premises. Frequently lack of access to goods, services and facilities is because of lack of access to the premises in which these are made available to the public.

One complaint which opened the way for significant change was the Cocks decision of 1994 which was the result of a complaint under the Queensland Anti-Discrimination Act (QADA). Mr. Kevin Cocks, who uses a wheelchair, complained to the Queensland Anti-Discrimination Commission that the principal entrance to the new Brisbane Convention Centre was not accessible to persons using wheelchairs or with other mobility disabilities, and therefore access was offered in a discriminatory way. There were twenty-seven steps up to the imposing front entrance and foyer. People using wheelchairs or with other mobility disabilities would have been required to enter the Centre through the car park, some 42 metres around the back of the building, and then use the lift to get to the foyer level before returning those 40-odd metres to arrive again at the principle or ceremonial entrance.

This complaint, being not capable of conciliation, was referred to the Queensland Anti-Discrimination Tribunal for hearing and decision. The respondent's main argument was that they had complied with the access provisions of the Building Code of Australia (BCA) and so were not in breach of the Disability Discrimination Act.

Ms Roslyn Atkinson, President of the Tribunal, found that there had been unlawful discrimination in the design and construction of the Convention Centre. She found that compliance with the BCA is not compliance with the QADA (nor, it can be generalized, therefore with the Disability Discrimination Act and other similar legislation). She took into account evidence presented in the hearing indicating that 10% of Australians have a significant mobility disability such that they will have difficulties negotiating flights of steps. This calculation included persons with temporary disabilities such as broken legs and older people who have arthritis or other frailties. When considering the question of unjustifiable hardship Ms Atkinson also included in her purview a wider group of the population who would be advantaged by a fully accessible principal entrance, such as parents or others who are accompanying children in prams or pushers.

The requirements of the BCA are minimal access provisions but are not anti-discrimination provisions. Anti-discrimination legislation requires that there be equal dignity and amenity in provision of access for persons who have disabilities, not some inferior secondary entrance or access.

Ms Atkinson ordered that the Convention Centre be provided with appropriate alternative access to its front, principle, entrance and that this be designed and constructed in consultation with the complainant and other representative organisations. The result was the construction of a lift at the front entrance.

This decision brought into sharp focus the fact that none of the anti-discrimination laws specify, and none of the agencies administering anti-discrimination law can advise with authority, what does constitute full compliance with the law in this area.

After this landmark decision, I received many expressions of concern from local government authorities about their potential liability as building and planning regulators and of a desire on the part of building owners and operators for a greater degree of certainty over their responsibilities in relation to the Disability Discrimination Act. In response to this I issued advice about the potential for regulators of the built environment to be liable to complaint from people who have disabilities, or to civil law suits from those who, following the information they received from the regulators, may find themselves the subject of such complaints. The already complicated area is made more so by the different building Acts in each State and Territory, giving responsibility for decisions such as these to different levels of government.

Such a situation might have been met by moves to have major projects exempted from discrimination laws - as they frequently have been from planning and environmental laws for example - on the basis that people building major facilities cannot be expected to live with complete uncertainty about whether they will be allowed to complete the project or will be restrained by interim orders under discrimination laws.

Instead, in co-operation with the Commission and the disability community, the Australian Building Codes Board (ABCB) which is the principal regulatory body responsible for this area, has been revising the BCA so it will be more consistent with the Disability Discrimination Act.

The ABCB set up two committees to consider revision of the BCA to make it more reflective of the Disability Discrimination Act. I have been a member of the Building Access Policy Committee (BAPC) from the beginning, and the Commission has also been represented on the Building Access Technical Advisory Committee (BATAC) which considers the technical and regulatory aspects of various policy decisions.

The BAPC also includes representatives from the ABCB, the Property Council of Australia (PCA - previously the Building Owners and Managers Association), builders, people with disabilities and the Attorney General's Department. In June 1996 the Committee completed a draft Discussion Paper which was released for public comment. The ABCB subsequently issued in June 1997 a proposed revised BCA (known as Regulation Document RD 97/01) for consultation till October 1997. The ABCB has analysed the responses to RD 97/01 and proposals for changes to the BCA were submitted in December to a meeting of State/Territory Government representatives which adopted all of the proposed changes.

The Board is also committed to continuing revisions of the BCA in the interests of improved access.

The Commission provided impetus for these processes in direct negotiations with the Building Codes Board. It also issued advisory notes, or guidelines, under the DDA indicating views on the existing level of obligations. I believe that these advisory notes have assisted progress in the revision of the Building Code, by making clear that (as in the transport area) improved access requirements were not in substance a new imposition of regulatory obligations but a reflection of the meaning of existing anti-discrimination law.

While a revised BCA will certainly improve access provisions in new buildings, compliance with the new BCA will not be an automatic protection against a complaint under the Disability Discrimination Act. First, there are many aspects of buildings, and the surrounding built environment, which are not covered by the BCA. Furthermore, there is at present no provision in the Disability Discrimination Act for a Disability Standard in the area of access to premises, so a discontented person with a disability may still bring a complaint about access features that complied with the BCA. Although the BCA compliance would most certainly be taken into account by the Commission in the management of the complaint, there would still be stress, inconvenience and perhaps delay while the matter was investigated and conciliation attempted.

One of the intended outcomes, then, of these BCA revision processes is that a suitably revised building code should provide a possible basis for a Standard under the Disability Discrimination Act on equal access to premises. This would not be done to establish the Act as a competing regulatory regime for buildings, but if the building code can be made sufficiently consistent with its objects it would be desirable to have standards providing conclusively that design and construction which complies with the code complies with the Disability Discrimination Act.

Although representations have been made to the Attorney-General from all sectors, including from myself, for amendments to the Disability Discrimination Act to allow for an access to premises Standard, these have not yet materialised.

There could also be a role for standards in this area in dealing with those issues that the building code does not deal with. In particular, the Building Code deals only with new construction and major renovations. It does not specify (and the revised code is not expected to specify) comprehensively what measures of upgrading of accessibility of existing buildings are required, by when and in what circumstances.

It may also be, however, that development of a set of standards that provides detailed requirements for the transition of existing buildings to accessibility is too complex a task to be achieved, considering the range of buildings which exist and the diversity of the circumstances of people responsible for them, unless the standards are restricted to particular buildings such as those used by the Federal government itself.

A standard on this issue for buildings more generally might not do much more than restate the existing requirement to provide equal access where this can be done without unjustifiable hardship. It may be that more detailed direction in this area should be sought through the other mechanisms under the legislation, including by the interaction of guidelines, action plans and exemptions.

Tangible outcomes:

It is now accepted that compliance with the minimal access provisions of the Building Code of Australia is not necessarily compliance with anti-discrimination legislation
The Australian Building Codes Board is undertaking a substantial revision of the Building Code of Australia to make it more reflective of anti-discrimination legislation

There have been many complaints under the Disability Discrimination Act which have been conciliated with an agreement that the respondent will modify premises to make them accessible: these have included motels, hotels, shopping centres, betting shops, post offices, civic centres, cinemas, entertainment centres, sports venues, restaurants and cafes, and swimming pools. (Brief summaries of many of these outcomes can be found in the DDA Newsletters on the Commission's web site.) Other matters have gone to hearing, with similar results.

Work for the future:

Again, it is the use of the legislation which ensures it is implemented. There is not, and nor is there likely to be, a Disability Discrimination Act audit and monitoring authority: the authority lies with regulators, architects and developers, and with people who have disabilities, to ensure the Act is implemented.

Further work will need to be done on those parts of buildings, and of the external built environment, that are not covered by the Building Code of Australia, and on the infrastructure connecting different environments, such as between shopping centres and adjacent business precincts.

Telecommunications

Much of the work so far described has concerned physical access, however this has certainly not been an exclusive focus.

The issue of equal access to telecommunications for the Deaf and people with hearing impairment, and for people with a disability generally, has been high on the lobbying agenda of disability organisations in Australia. No issue received more political attention during the passage of the Disability Discrimination Act through Parliament. Again, however, it was a simple individual complaint - albeit supported by a representative organisation and by one of the disability discrimination legal centres - which had the most impact.

Geoffrey Scott is a profoundly deaf man from Western Australia who complained that Telecom (as it was then) had discriminated against him on the ground of his disability by not providing a telephone typewriter for the deaf (TTY) in his home on the same basis on which handsets were provided to other domestic users of the telecommunication service. This complaint could not be conciliated as Telecom did not consider its commercial decision to have been unlawful discrimination. Their main argument was that the service provided by Telecom was the actual telecommunication network and lines, and that the handset which provides access to the service was not part of the service.

I referred the matter to hearing, at which time the Australian Association for the Deaf was joined as a party to the complaint. The hearing was conducted by Sir Ron Wilson who found that Telecom had discriminated against Mr. Scott, and against all other persons in his situation. He ordered that Telecom immediately provide Mr. Scott with a TTY, and that there be a further hearing of submissions as to how Telecom could avoid such discrimination in the future.

Once Telecom had accepted that there had been unlawful discrimination they were very enthusiastic about finding solutions to this and many other service delivery challenges. The solution they adopted was to provide a voucher to all people who were eligible, that is who were profoundly deaf or who had significant speech impediment such that they were not able to use a telephone. The voucher would allow them to buy a TTY, and would be replaced in five years. Shortly afterwards Telstra, as the corporation is now called, decided to produce an Action Plan for equal access across the full range of their services, and has now launched that plan. Since then the corporation has introduced many other services and special measures to enable people with disabilities to be independent in their use of the telecommunication network, including the recent launch of a Braille bill for people who are blind. To be able independently to manage one's own financial affairs is most important, and Telstra are to be congratulated on this imaginative and appropriate initiative.

Another far reaching outcome of this matter has been that this year, under Australia's new telecommunications law, we have seen incorporation of disability access requirements, at least in general terms, in the definition of features of a standard telephone service which telecommunications service providers are required to comply with. This also appears to have resulted at least in part from Mr Scott's complaint.

The Telecommunications Act defines the obligations of providers by reference to their obligations under the Disability Discrimination Act, but does not provide any further clarification of those obligations. The Commission has been preparing to begin development of guidelines under the Disability Discrimination Act on requirements for equal access to telecommunications (not only for Deaf people and others using TTYs but on any features of telecommunications facilities which may present barriers to equal access for people with various disabilities). We have deferred commencement of this process because of advice from the Department of Communications and the Arts that the government is preparing to exercise its own power to regulate these issues under the telecommunications law.

We have indicated that we would prefer to assist in this process rather than running a competing process under the Disability Discrimination Act, but that if the development of regulations under telecommunications law is unduly delayed the Commission will proceed with a guideline development process under the Act.

Tangible outcomes

People who are deaf or who have a hearing impairment now have access at home to the telecommunications service in the same way as do people who can use a standard handset
This benefit has been extended to others whose speech impairment or other difficulties require them to use a TTY
Telstra has lodged an Action Plan with the Commission, including a strategy for equal opportunity of employment within Telstra of people who have disabilities
In all future technical and service planning Telstra is taking into account the requirements of people who have disabilities
People who are blind can now receive their account in Braille and so be self-sufficient in managing this aspect of their finances
The requirements of the Disability Discrimination Act are now to be incorporated in the development of regulations under telecommunications law

Work for the future

The development of telecommunications law will need to be carefully monitored both by the Commission and by people who have disabilities: if there is undue delay the Commission will need to consider issuing guidelines for service providers and operators

Service providers other than Telstra may find themselves in breach of the legislation if they do not ensure the elimination of barriers to equal access to their own services and facilities.

Employment

It became clear early on that employment was an area in which people with disabilities experience significant discrimination: some 38% of complaints under the Disability Discrimination Act received by the Commission are about discrimination in employment. Sometimes this is direct discrimination, that is once it is known that a person has a disability he or she is not considered for a job or is dismissed, and sometimes it is indirect or inadvertent discrimination. Several matters which were not capable of conciliation were referred for hearing. Indeed the first Commission decision under the Disability Discrimination Act was an employment matter, X v McHugh, Auditor General for the State of Tasmania in which there was a payment of $20,000 in compensation for lost income and for humiliation to feelings.

X was a highly qualified young man in a responsible position who experienced an episode of psychiatric illness which affected his behaviour at work. After a period in hospital and the stabilisation of his condition he returned to work only to be fired before he had an opportunity to demonstrate that he was once again able to perform his duties. Sir Ron Wilson found that there had been discrimination in this case in that the employer, in these circumstances, ought to have been aware that X's earlier inappropriate behaviour was a manifestation of a disability for which he had received treatment and from which he had recovered. There had been no adjustment made by the employer to accommodate X's disability, and no assessment made upon his return of his capacity to do the job.

Another complaint, McNeill v Commonwealth of Australia heard in February 1995 by Stanley Jones QC, resulted in payment for damages and lost salary of $50,900. In this matter it was found that the Department of Social Security had failed to provide Ms McNeill with the equipment she required as an adjustment for her vision impairment, and had failed to ensure that when it was provided the equipment functioned adequately. Her supervisor had nevertheless recommended annulment of Ms McNeill's appointment after the probation period on the basis of poor work performance and problems with interpersonal communication. Commissioner Jones found that Ms McNeill's difficulties in doing her job were largely due to the failure of the equipment, and her interpersonal difficulties were in large part a reflection of her isolation and frustration resulting from this failure. He found the Commonwealth had not met its responsibilities under the Disability Discrimination Act.

These two complaints, as well as meetings I held with employer representatives, contributed to recognition of the need for employers to be aware of the provisions of the Disability Discrimination Act and to take them into account in their relationships with employees. Other matters continued to be brought to the Commission for investigation, conciliation and hearing. (Details of hearing decisions under the DDA can be found in the Annual Reports of the Commission, and through our web site.)

In the light of this, in 1995 the National Advisory Committee on Discrimination in Employment and Occupation set up a sub-committee to consider the development of a Standard in employment. The Sub-Committee includes representatives of the National Coalition for Development of Disability Standards; the Australian Chamber of Commerce and Industry; the Australian Council of Trade Unions; the Council for Equal Opportunity in Employment; the Victorian Equal Opportunity Commission; and the Federal Government through the Department of Employment, Education, Training and Youth Affairs, the Department of Industrial Relations (as it then was) and the Attorney-General's Department, as well as myself representing the Human Rights and Equal Opportunity Commission. I have chaired that sub-committee throughout.

The sub-committee has now produced a draft disability Standard in Employment which has been circulated for a further round of consultation with relevant parties. (The draft is available in a range of formats from the Federal Attorney-General's Department and will also be available on the Commission's web site.) Once this draft is finally settled, I trust by March 1998, and has been subjected to the RIS process, it will be forwarded to the Attorney-General for consideration and, one hopes, adoption by Parliament as a Standard under the Act. (This draft was itself prepared taking into account submissions received in response to a Resource Paper and Discussion Paper issued by the Sub-Committee in July 1995.)

A substantial majority of submissions on the first draft supported developing Standards through consultation as an effective way of clarifying existing rights and obligations, contrasting it with the time, expense and energy involved in pursuing litigation. These concerns are even more relevant with the impending shift of the hearing function of the Human Rights and Equal Opportunity Commission to the Federal Court. A strong minority considered that people with disabilities would do better to pursue complaint strategies under the existing provisions, and wait for further developments of case law to define the nature and scope of their rights under the Disability Discrimination Act. In the meantime they would prefer the Human Rights and Equal Opportunity Commission to issue guidelines.

The Commission's position continues to be to support developing non-prescriptive Standards, although we remain open to the development of guidelines as an interim measure, or on specific issues.

The development of a Standard in employment has been a complicated task as there are so many considerations to be taken into account - considerations that cannot be summarised in a measurement of millimetres of width, or a simple rule, but which are related to a multiplicity of factors bearing upon a decision about who is the best person for the job, what are the inherent requirements of the job, and what it is reasonable to do to assist that person to do the job.

The draft Standards set out, and attempt to clarify, obligations under the Act:

not to discriminate against a person with a disability, by less favourable treatment or by treatment which is less favourable in its impact, at any stage of the employment process from advertising and recruitment to terms and conditions of employment, opportunities for training and promotion, and in dismissal or other separation procedures
to make reasonable adjustments where required;
not to ask questions for discriminatory purposes; and
not to harass a person with a disability in relation to employment.

The draft Standards seek to clarify limits to unlawful discrimination, in particular by reference to the concepts of inherent requirements of the job and unjustifiable hardship.

There have, of course, in the three years that this Standard has been under development, been many other employment related complaints under the Disability Discrimination Act which, failing conciliation, have been referred for hearing. In some cases the complaint has been dismissed, while in others there has been a finding of unlawful discrimination and the ordering of financial and other remedy including policy change or development, staff training, institution or tightening up of procedures, and provision of appropriate adjustments to the work place. These decisions have been made publicly available, so Australian employers, workers and potential workers have become more and more aware of the Disability Discrimination Act and the solutions that may be found to avoid direct or indirect discrimination in the workplace.

Despite the complexities, the process of developing this employment Standard has been very gratifying: parties have worked cooperatively and creatively together to produce what is essentially a description of appropriate employer-employee relationships in the light of the Disability Discrimination Act. The draft Standard has been the subject of intensive nation-wide consultation and the submissions of all parties have been carefully considered.

Tangible outcomes:

The draft Standard, and the process of its development, is now being circulated for final comment; the process has itself clarified many issues in this area.

This is not the level of tangible outcome I had hoped for as the process began: the delays reflect in part, I believe, the expectation of people who have disabilities, founded on experience, that they will always be "last in, first out" of the employment market. This has resulted in a hope that any loophole in the draft can be refined away by application of the sandpaper of consultation: I fear that what may be lost in this, and other areas, may be the process itself. I return to this in my later discussion of the limitations of strategy.

Work for the future:

People who have disabilities are seriously under-represented in employment (even an EEO conscious employer like the Australian Public Service can count only 4.7% of its work force as persons with a disability): the development of outcome oriented policies, and of training about discrimination in the work place may contribute to redressing this imbalance. In the first instance the Human Rights and Equal Opportunity Commission itself should seek to increase the participation of people who have disabilities, and not only in the Disability Discrimination Policy Unit, as part of its management of diversity.

Education

While employment and access matters comprise the bulk of complaints, education issues also create a significant pool of about 10% of complaints lodged. There are some complaints relating to secondary or other non compulsory education provision, but the majority fall into two groups: access to primary school education and access to tertiary education.

Primary education

Of those complaints pertaining to primary school education most have been about provision of facilities and teachers aides or initial enrolment, usually in relation to children with intellectual disabilities, or with a combination of intellectual, sensory and physical disabilities. In many there is also a component of behavioural disturbance or disorder which may or may not be the primary disability.

Many of these complaints, brought usually by parents on behalf of their children, have not been conciliable and I have referred them for hearing. A common pattern has been that once the matter is referred for hearing the respondent, usually a State education department, will settle the matter with the complainant on a confidential basis. The Commission, therefore, is not generally aware of the details of the settlement. This is, in the end, satisfactory for the complainant, and therefore worthwhile as individual remedy.

This "on the doorstep of the hearing" settlement pattern has just now been repeated in a long-running complaint which had already begun the early stages of hearing but which settled confidentially in November. I understand that the complainant was very pleased with the outcome.

Unfortunately such confidential outcomes have not contributed to our understanding of the provisions of the Disability Discrimination Act nor to Australia's case law in this area; thus while they are individually satisfactory (and that is the main aim of the provisions allowing for the bringing of complaints) we are still unsure of the meaning and reach of such terms as "reasonable", and "unjustifiable hardship", or of what in fact people who have disabilities can legitimately demand of an educational institution and what should properly be provided by some other agency such as a health care service.

One case which added a little to our body of law on these matters occurred under the Queensland Anti-Discrimination Act. In January 1996 the Queensland Anti-Discrimination Tribunal dismissed a matter between "L" and the Minister for Education for the State of Queensland. "L" was then a seven year old girl with an intellectual impairment which had a severe impact on her intellectual development, her ability to communicate, her gross motor skills and her capacity to care for herself in matters such as eating and hygiene. She spent two days a week in a Special Education Development Unit, and three at a regular State primary school until a changed arrangement in placed her in the primary school for five days per week. She was assessed as requiring the highest level of support, so an individual program was developed for her and funding for a teacher's aide was obtained.

Despite these arrangements, and many attempts to solve problems as they arose, the school experienced significant difficulties in managing "L's" behaviour, her tendency to regurgitate, and difficulties with toileting. The teachers felt she was learning very little and they experienced great stress in having to cope with "L" while meeting their obligations to other students. At one point it was proposed to "L's" mother that she be placed in another special education unit, the mother, believing a regular school setting to be the best for "L", declined this offer. In July 1995 "L" was suspended from attendance at the school. Various reviews took place, and the suspension remained in effect. A complaint was brought under the Queensland Anti-Discrimination Act, and finally went to the Tribunal for determination.

The respondent defended its actions on three bases: the claim of potential infective hazard was rejected by the Tribunal; that of unjustifiable hardship was accepted by the Tribunal after consideration of complex evidence, not limited to assessment of financial cost; and the claim that the suspension was specifically required or authorised by an existing provision of another Act was also upheld by the Tribunal. The finding was that there had been discrimination on the ground of disability but that it was not unlawful, and the complaint was dismissed.

Some of the questions asked by teachers, parents, advocacy groups and Departments of School Education are: Is it appropriate that teachers are responsible for the administration of psychotropic drugs? For treating diabetic, allergic or other medical emergencies? For taking an incontinent or physically disabled child to the toilet several times a day? For feeding a child through a gastric stoma? For assisting a child with a catheter? These are real issues of reasonableness and unjustifiable hardship which have as yet been barely tested by anti-discrimination legislation, and which are part of the whole picture that must be considered in any single complaint. These issues must also be addressed in the development of a disability Standard in education because such a Standard will set the maximum that can be demanded as well as the minimum that must be provided: in a Standard these two become, effectively, one. Compliance with the Standard in the relevant area of a complaint would be deemed to be compliance with the Disability Discrimination Act for that complaint.

I encourage teachers, and their representative associations, to begin to draw the "line in the sand" that states, as far as they are able, what it is reasonable to expect from a teacher. People who have disabilities will then draw another line, and unions, parent groups and other interested parties will all draw their lines. Only when those lines are drawn, when the various parties can see the edges of each others' positions, can we hope to achieve some negotiated outcome, some shared expectation. My experience of teachers is that they will bend and yield as far as possible, and then a little further, so highly do they value the opportunity for education for every child. They are, it seems, unwilling to draw any line until the stress is so great that eventually a line much more limited that necessary is laid out as the not negotiable maximum, the ditch to die in. This is not the way to create a sensible, workable Standard of any kind. All parties must work towards the creation of a Standard that ensures the level of access to education demanded by the Disability Discrimination Act, taking into account reasonableness and unjustifiable hardship, without either diminishing the rights of students with disabilities or expanding the responsibilities of providers.

Post primary education

The secondary and tertiary education matters are usually brought by the students themselves and have mostly related to: lack of signing and other services for students who are deaf or who have a significant hearing impairment; to inadequate access to classes and other facilities; and to difficulties arising out of the expression of a student's acquired brain injury or mental illness or psychiatric disability. In general the pattern has been the same as for school education complaints, except that the Commission has been able to settle a larger proportion in the first instance. Some of these have been considered by the Commission at a formal hearing.

Standards

There have been sufficient complaints in the education area, under the Disability Discrimination Act and under the disability discrimination provisions of some of the State Acts, and touching all levels of the education system, for Education Ministers to consider the development of a Disability Discrimination Act Education Standard. Ministers have been supported in this by the considerable success of their transport counterparts in developing the draft accessible transport Standard. The Ministerial Council on Employment, Education, Training and Youth Affairs (MCEETYA) has set up a task force to consider the development of these Standards. The task force consists of representatives from each State and Territory Education Department, two disability representatives, a representative of the Federal Attorney General, and a selection of University, TAFE, private sector and other providers. The task force issued a Discussion Paper on Education Standards for comment and is now considering the submissions.

At the moment the task force is looking at the possibility of a Standard to cover the whole range of education, from early childhood right through to tertiary and vocational education. This is a large and extremely complicated task: the task force may in the future consider breaking it up into smaller or more manageable components.

While the Commission is not represented on the task force, I have maintained contact with it in order to contribute effectively to outcomes which promote the objects of the Disability Discrimination Act.

It must be said that these processes have been running for considerable time and we are still to see either clear indications of what a draft standard in this area would look like or definite commitment by Ministers to standards as the preferred option.

Education was identified in our strategic planning process as probably the area of most universal relevance across types of disability, and is clearly crucial to people's prospects of equal opportunity and participation in society. I do not think it can be said that we have yet had the decisive impact on equality in education that has been hoped for. We need to be looking closely at what strategies can be pursued alongside or as an alternative to the development of standards on education in coming months. (To assist these processes, and with the aim of identifying the barriers to equal access to education and the means for their removal, in 1996 I undertook a series of personal consultations with a range of education providers and other organisations with a direct involvement in education at all levels. Some of the issues raised are outlined later in this report.)

Tangible outcomes:

Clearly there have been some very good outcomes for parents and children who have persisted to the point of being referred for a hearing and it may be entirely appropriate for Departments of School Education to respond to individual complainants in this way: when one considers the huge number of children attending school across Australia, the number of complaints received is relatively small, and usually the outcome of a serious breakdown of communication between the child's family and the school. If the lodging of a complaint is the best way these families have to gain attention for their difficulties and to achieve a solution, then the Disability Discrimination Act has served its purpose in that instance.

The Ministerial task force is beginning to clarify the issues and questions to be addressed in any Standard and is getting to grips with the breadth and complexity of the task. At the beginning of December the task force decided to move ahead to the next stage of development of a disability Standard, though a minority still believe the best results for individuals will be achieved through the processing and resolution of complaints.

There is no doubt that the education sector at all levels has a deep commitment to education for every child of compulsory school age where this is at all possible, and the post school sector has long established disability support practices which, subject to funding (never sufficient) seek to ensure equity for people who have disabilities.

Work for the future:

While hearings and tribunals at Commonwealth and State levels are making little headway in establishing case law to clarify rights and obligations under anti-discrimination legislation; there are nevertheless significant issues of responsibility and expectation to be addressed and this may in the end have to be through the courts and tribunals established for this purpose. Advocates in this area will need to maintain persistence and focus in the face of setbacks.

Insurance

This area has produced around the same number of complaints as education, with a similar outcome pattern. At first the insurer finds itself unable to enter into a conciliated agreement, so I refer the matter for hearing, shortly before or during which event the Commission is informed that a confidential settlement has been achieved between the parties. Again, the outcome is no doubt satisfactory for the complainant and is therefore a successful conclusion to the particular matter - but it does not throw any public light on the provisions of the legislation, and does not add to our case law.

There has been one major exception to this pattern in that although there was still a settlement shortly before the hearing, on this occasion the insurer has made the outcome public: AMP has decided to provide a complainant with disability income insurance with a blindness exclusion, and to review its policy in relation to people with vision disabilities.

The Complainant is a computer programmer who has worked full time in the field for 20 years. He has a wife and five young children, and a mortgage, and wished to protect his family in the event of illness or accident preventing him from carrying out his usual employment. Disability income insurance would provide him with a monthly income if this happened.

The Complainant has a vision disability which may result in his being totally blind in a few years. The traditional position of insurance companies is to deny disability income insurance to people who have vision disabilities on the assumption that they are at greater risk of becoming unable to work. All the Complainant's applications for insurance were refused, so he brought a complaint under the Disability Discrimination Act. When conciliation did not seem possible I referred the matter to the Commission for Hearing.

After a pre-hearing conference, not only has AMP provided disability income insurance with a blindness exclusion, it has also taken the initiative to review its policy in relation to people who have vision disabilities. In future AMP will be prepared to provide many blind applicants with long term cover subject to a blindness exclusion (this means disability directly related to blindness is not covered). Each case will be individually underwritten in the usual way with the provision of cover being dependent on AMP's assessment of the risk attached. The majority of blind applicants who are permanently employed at income levels at AMP's standard level of acceptance, who are well adjusted to their blindness, and who satisfy AMP's usual requirements for occupation, health and pursuits, will be eligible for cover on standard terms, subject only to the blindness exclusion.

I have had several meetings with the Life Investment and Superannuation Association (LISA), and other relevant bodies, on the difficulties people who have disabilities find in obtaining insurance of any kind, but particularly income protection insurance, disability insurance, life insurance and travel insurance. I have also included representatives of people who have disabilities in these meetings which have proved to be very fruitful indeed. We are now in the process of developing agreed industry guidelines to assist underwriters and insurance companies in complying with the Disability Discrimination Act as they make their risk assessments and decisions whether or not to provide cover in specific instances. A draft of these guidelines is currently being considered by relevant interested parties and should be published by the time this report is issued. LISA will distribute the guidelines to its members.

Action plan development and strategy

The development of Action Plans by major organisations has now achieved a momentum of its own, with some organisations which have not themselves been the focus of significant complaints following the example of others who developed Action Plans as part of a response to the complaint process. There are now approximately 65 Action Plans lodged with the Commission. (A list of Action Plans is available on the Commission's web site. Copies can be obtained from the organisations concerned or from the Commission.) They come from various community sectors: local governments and councils, tertiary education institutions, Commonwealth & State government departments (including the Transport examples mentioned earlier), non-government organisations, small business and major corporations.

The City of Rockdale (NSW) won a Prime Ministerial Award for innovation for its Action Plan under the Disability Discrimination Act, and they are now sharing the benefit of their experience with other local government organisations. Telstra also is keen to assist other corporations in their Action Plan writing. Such a diffusion of expertise through the system, nation-wide, can only result in furthering the ultimate goal of eliminating disability discrimination.

One of the most encouraging spontaneously developed Action Plans (that is, without the impetus of a complaint) has been that of the National Australia Bank, currently the market leader in Australian banking and one of Australia's most successful corporations. The Action Plan itself is detailed and innovative, and clearly has the enthusiastic support of NAB Management at all levels. The Commission hopes that this organisation's having voluntarily committed itself to a program of eliminating disability discrimination will inspire other corporations to do likewise, both in the banking sector and generally. There are positive signs that this is in fact happening.

Another recently received Action Plan which should, if appropriately reviewed and implemented, create long-overdue change is that of the NSW Department of Justice. Access to Justice is of great importance to people who have disabilities who are over-represented in the Courts. This Action Plan includes the employment for two years of a dedicated staff person to oversee its implementation and to develop it further, and contains provisions relating to equality of opportunity in employment. It is the first to be received from a Department of Justice and as such is a beacon which I hope will inspire other jurisdictions to do the same. (Access to justice is discussed later in this report.)

This developing recognition of the benefits of achieving effective access for people with disabilities as customers and equality of opportunity to contribute as

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navigation Disability Rights

FounDDAtions: Reflections on the first five years of the Disability Discrimination Act in Australia

Contents

Preface

A ground-breaking Act

Eliminating disability discrimination requires active measures

Problems of definition and mechanisms for dealing with discrimination

Definition of disability

Approaches to discrimination

Disability standards under the Disability Discrimination Act

Initial strategic planning issues: How could the DDA make a difference?

Need for policy focus

People with a disability are an important constituency but not the only one

Information and education campaign

Catalytic complaints

Public transport

Access to buildings

Employment

Education

Insurance

Action plan development and strategy